United States v. Aaron ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 7, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 18-3232
v. (D.C. No. 6:18-CR-10045-EFM-1)
(D. Kansas)
CHAELYN NICHOLE AARON,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, SEYMOUR, and McHUGH, Circuit Judges.
_________________________________
On March 28, 2018, Chaelyn Nichole Aaron committed her latest in a long
string of thefts by stealing seven nine-millimeter handguns from a store in Park City,
Kansas. Ms. Aaron pleaded guilty to theft of firearms in violation of 18 U.S.C.
§ 922(u). At sentencing, the district court departed upward from the Guidelines’ 77–
99 month range and imposed a sentence of 110 months’ imprisonment, followed by a
*
After examining the briefs and appellate record, this panel determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case was
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with
Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
three-year term of supervised release. Ms. Aaron appeals. Exercising jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
I. BACKGROUND
On March 28, 2018, Chaelyn Nichole Aaron entered an Atwoods Ranch &
Home store in Park City, Kansas, and made her way to a large glass case displaying
firearms for sale. She took a small crowbar from a nearby store display, pried open
the glass case, took seven nine-millimeter handguns, and carried them out of the store
without paying.
On April 2, 2018, Ms. Aaron was arrested after a “short chase” on foot, and
she admitted to police that she had stolen the seven firearms. ROA, vol. II, at 9. After
being released from custody, Ms. Aaron evaded arrest by ATF agents on April 12,
2018, by “driving at a high rate of speed and using the oncoming traffic lanes.” Id. at
11. She was again arrested on April 19, 2018, and on April 25, 2018, a grand jury
indicted Ms. Aaron on two counts: being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (“Count One”), and theft of firearms, in violation
of 18 U.S.C. § 922(u) (“Count Two”).
Ms. Aaron entered a plea agreement under which she pleaded guilty to Count
Two. For its part, the Government agreed to move to dismiss Count One, recommend
that Ms. Aaron be sentenced “at the low end of the Guideline range,” recommend a
two-level reduction in calculating Ms. Aaron’s offense level for acceptance of
responsibility, and recommend an additional one-level reduction for timely notifying
authorities of the intention to enter a guilty plea. See id., vol. I, at 31–32.
2
Using the 2016 edition of the Sentencing Guidelines, Ms. Aaron’s presentence
investigation report (“PIR”) calculated a criminal history score of 26 and a criminal
history category of VI. The PIR detailed Ms. Aaron’s extensive criminal history:
“from 2004 to 2012, [she] had been convicted of numerous theft-type crimes,
including theft, criminal deprivation of property, and possession of stolen property,
on seven occasions.” Appellee’s Br. at 3. The PIR noted seven additional instances of
criminal conduct: five instances of theft and two instances of smuggling contraband
into correctional facilities. It also noted eight pending charges against Ms. Aaron
(along with three cases where charges had not yet been brought), including traffic
offenses, car theft, several instances of possession of stolen property, and at least
three instances of burglary. Finally, the PIR listed ten additional arrests, including
one for felony theft and two for misdemeanor possession of stolen property.
Citing Ms. Aaron’s extensive criminal history, the PIR identified U.S.S.G.
§ 4A1.3 (Criminal History Adequacy) as “potential grounds for departure,” noting:
[Ms.] Aaron has 26 criminal history points. The highest criminal history
category of VI is achieved by having 13 criminal history points.
[Ms.] Aaron has twice the amount of points needed to be in the highest
category. The defendant has been involved in criminal activity since the
age of 14 . . . . The defendant’s criminal history category substantially
under-represents the likelihood that the defendant will commit other
crimes, therefore an upward departure may be warranted.
ROA, vol. II, at 45.
Ms. Aaron objected to the PIR’s § 4A1.3 recommendation, arguing “[t]he
crimes she committed as a juvenile and young adult were committed while she was
under the influence of addiction” and “[s]he has never been arrested or convicted for
3
a crime of violence or an offense involving the use of a firearm or weapon.” Id. at 48.
Ms. Aaron claimed she “suffered from severe, persistent mental illness,” had a “long
history of suicidal ideation and attempts,” and was severely addicted to drugs. Id.,
vol. III, at 17. She argued she committed the instant offense under the influence of
heroin and for the purpose of “pay[ing] off an antecedent drug debt,” and that “an
upward departure [would] not achieve anything and [would] punish her because of
her organic mental health issues and drug addiction from childhood.” Id., vol. I, at
35. Accordingly, Ms. Aaron requested the district court impose a sentence within the
Guidelines range. The district court then notified the parties in writing that it “was
considering [imposing] an above-guideline range.” Id., vol. III, at 14.
At her sentencing hearing on October 22, 2018, the Government recommended
a 77-month sentence, at the low end of the 77–96 month Guidelines range calculated
in the PIR. Over Ms. Aaron’s renewed objection, the district court announced that it
would depart upward from the Guidelines range and impose a greater sentence than
the Government recommended.
Discussing the factors enumerated in 18 U.S.C. § 3553(a), the district court
concluded, given that Ms. Aaron broke a display case, told conflicting stories about
why she stole the firearms, and fled from the police, that “the nature and
circumstances of her offense [are] quite serious.” Id., vol. III, at 27. The court further
observed that Ms. Aaron’s criminal history included “an incredible string, perhaps
not of violent offenses, but still of disruption of the peace of the community with the
number of theft and other offenses that she’s had.” Id. at 28. Despite expressing
4
sympathy for Ms. Aaron’s addiction issues, the district court maintained that
“[a]ddiction is disfavored as a grounds to consider a downward factor on a sentence,
and . . . that’s not just downward below the guideline but [also] in considering it in
contravention to upward factors.” Id. at 28–29. Considering options for rehabilitation,
the court observed that Ms. Aaron had “not fully participated in” treatment options in
the past. Id. at 29. The court also considered the “need to impose a sentence that
protects the public from further crimes” by Ms. Aaron, noting:
[F]rankly, this defendant is a rolling series of crimes. In her youthful
age, she has scored an incredible number of crimes. And not
disregarding the need to provide treatment to her, I also have to consider
the need for protecting the public from the continued crimes that she’s
committing. And that’s, I think, a serious factor, given how much
criminality she’s ranked [sic] up in what a short period of time. And
those are the factors that have led me to really seriously consider an
upward departure on her sentencing.
Id. at 29–30.
The district court then imposed a sentence of 110 months’ imprisonment
followed by a three-year term of supervised release, along with a “strong
recommendation to the BOP . . . that [Ms. Aaron] be placed in a medical facility” for
the duration of her sentence. Id., vol. II, at 34, 36–38. Ms. Aaron timely appealed.
II. DISCUSSION
U.S.S.G. § 4A1.3 allows an upward departure from the Guidelines’
recommended sentence where “reliable information indicates that the defendant’s
criminal history category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other
5
crimes.” U.S.S.G. § 4A1.3(a)(1). In general, we review a district court’s decision to
depart from the Guidelines’ recommended sentence for abuse of discretion. Koon v.
United States, 518 U.S. 81, 100 (1996). When reviewing an upward departure, we
consider four factors: “(1) whether the district court relied on permissible departure
factors, (2) whether those factors removed a defendant from the applicable
Guidelines heartland, (3) whether the record supports the district court’s factual bases
for a departure, and (4) whether the degree of departure is reasonable.” United States
v. Robertson, 568 F.3d 1203, 1211 (10th Cir. 2009).
We apply a “unitary abuse of discretion standard” to each of these four prongs,
but in applying that standard, the degree of deference depends on the type of question
presented on appeal. United States v. Munoz-Tello, 531 F.3d 1174, 1186 (10th Cir.
2008) (quotation marks omitted). “That is, if the question on appeal has the hue of a
factual question, we accord the district court greater deference, whereas we undertake
plenary review of questions that are in essence legal.” Id.Ms. Aaron raises four issues on appeal, corresponding to the four prongs of
our upward-departure review: (1) whether the district court relied on impermissible
departure factors; (2) whether the district court erred in finding Ms. Aaron’s criminal
history removed her from the applicable Guidelines heartland; (3) whether the record
supports the district court’s factual basis for an upward departure; and (4) whether
the degree of departure was reasonable. We address each issue in turn, ultimately
concluding that none entitles Ms. Aaron to relief.
6
A. Did the District Court Rely on Impermissible Departure Factors?
1. Standard of Review
Because it is a question of law, we generally review whether a district court
relied on impermissible departure factors de novo. Id. at 1188. Here, however,
Ms. Aaron concedes she forfeited her argument by failing to raise it to the district
court. “[W]hen an appellant raises a forfeited argument or issue for the first time on
appeal, we will reverse only if the appellant can satisfy our rigorous test for plain
error.” United States v. Johnson, 732 F. App’x 638, 644–45 (10th Cir. 2018)
(unpublished); see also United States v. Kearn, 863 F.3d 1299, 1305 (10th Cir. 2017).
To prevail on plain error, a defendant must show “(1) the district court
committed error; (2) the error was plain—that is, it was obvious under current well-
settled law; (3) the error affected the Defendant’s substantial rights; and (4) the error
seriously affect[ed] the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012) (internal
quotation marks omitted). “Because all four requirements must be met, the failure of
any one will foreclose relief and the others need not be addressed.” Id.
2. Analysis
The Government argues that because Ms. Aaron failed to argue plain error in
her opening brief “this issue is waived, meaning [she] is not entitled to even plain-
error review.” Appellee’s Br. at 13. Indeed, where an appellant fails to properly argue
plain error on appeal, she is not entitled to plain error review. See, e.g., Johnson, 732
F. App’x at 644. However, we have left open the possibility that a criminal defendant
7
could simply allege error in her opening brief, then argue the other three plain-error
factors in her reply brief after the Government argues forfeiture. United States v.
MacKay, 715 F.3d 807, 831 n.17 (10th Cir. 2013) (“An appellant certainly would
benefit from a more developed argument if he acknowledged forfeiture in his opening
brief, but we do not discount the possibility that we may consider a plain error
argument made for the first time in an appellant’s reply brief.”); see also United
States v. Courtney, 816 F.3d 681, 683 (10th Cir. 2016).
Here, Ms. Aaron failed to argue plain error in her opening brief. In her reply
brief, despite acknowledging she had forfeited this argument below, Ms. Aaron
argued only that the district court erred, and she never addressed the other three
prongs of plain error. Therefore, even applying the lenient MacKay standard, she has
waived plain error review.1
1
Even if we reached the merits of Ms. Aaron’s argument, the district
court did not impermissibly rely on her age to depart upward from the
Guidelines range. The district court mentioned Ms. Aaron’s age simply to
highlight the fact that she had accumulated an extensive criminal history in a
short period of time. See ROA, vol. III, at 15 (“[O]bviously, 26 points itself
would be grounds for an upward departure because it’s double what category
VI is. But the fact that she’s done so many in such a youthful age further
exacerbates that.”). This interpretation of the district court’s language at
sentencing is further supported by the fact that the district court checked the
box marked “Criminal History Inadequacy” in the Statement of Reasons for
Departure, but did not check the box marked “Age” (or any other box). Such
an approach is entirely permissible under the Guidelines. See, e.g., United
States v. Collins, 122 F.3d 1297, 1306 (10th Cir. 1997), superseded by statute
on other grounds as recognized in United States v. Andrews, 76 F. App’x 244,
245 (10th Cir. 2003) (unpublished) (noting that “a district court may rely on
offender characteristics such as age . . . only in combination with other
circumstances of a defendant’s criminal history”); U.S.S.G. § 4A1.3 cmt.
background (2016) (describing “younger defendants . . . who are more likely
8
B. Did the District Court Err in Finding That Ms. Aaron’s Criminal History Removed
Her From the Applicable Guidelines Heartland?
1. Standard of Review
The parties dispute whether Ms. Aaron preserved this argument. Our review of
Ms. Aaron’s sentencing memorandum reflects she disputed the Probation Office’s
statement that an upward departure may be warranted by noting that Ms. Aaron “has
never been arrested or convicted for a crime of violence or an offense involving the use
of a firearm or weapon.” See ROA, vol. II, at 48. Her attorney also argued at the
sentencing hearing that Ms. Aaron’s criminal history did not warrant an upward
departure. Although the argument there focused on Ms. Aaron’s drug addiction and
mental health issues, Ms. Aaron’s attorney did seek to distinguish her prior criminal
offenses from the instant offense. See id., vol. III, at 20 (“I don’t see where she’s ever
been convicted of a crime of violence or any other offense involving the use of a firearm
or weapon other than this theft.”); see also id. (arguing Ms. Aaron was not “going around
stealing as a true profession”).
From these objections, we can fairly conclude Ms. Aaron attempted to distinguish
her prior offenses from her instant offense. This suffices to preserve her argument on
appeal that the district court improperly “lumped all of her relevant and irrelevant
criminal conduct together.” Aplt. Op. Br. at 24.
to have received repeated lenient treatment, yet who may actually pose a
greater risk of serious recidivism than older defendants”).
9
When applying our abuse-of-discretion standard to this prong, “[s]ubstantial
deference is due the district court’s determination that unique factors place a
defendant outside of the Guidelines heartland.” Robertson, 568 F.3d at 1213. Because
we “[a]cknowledg[e] the district court’s special ability to judge the ‘ordinariness or
unusualness of a particular case,’” United States v. Osborne, 593 F.3d 1149, 1155
(10th Cir. 2010) (quoting Koon, 518 U.S. at 98), we “limit our review to determining
whether the factual circumstances from the vantage point of the district court make
this the atypical case.” Robertson, 568 F.3d at 1213 (internal quotation marks
omitted); see also Koon, 518 U.S. at 98 (describing the district court’s “institutional
advantage” in making “these sorts of determinations”).
2. Analysis
“The Guidelines encourage upward departure if reliable information indicates
that the criminal history category does not adequately reflect the seriousness of the
defendant’s past criminal conduct or the likelihood that the defendant will commit
other crimes.” United States v. Akers, 215 F.3d 1089, 1104 (10th Cir. 2000).
Ms. Aaron claims the district court wrongly relied on her entire criminal history to
support an upward departure, without determining whether her criminal history was
sufficiently similar to her instant offense. She argues that “[a]n upward departure . . .
is only befitting if a defendant’s prior, adult, criminal conduct is sufficiently similar
to that underlying the instant offense.” See Robertson, 568 F.3d at 1213. While
Ms. Aaron is correct that criminal history must be “sufficiently similar to [the
10
conduct] underlying the instant offense,” the district court did not err in determining
that her criminal history meets that threshold.
To remove a defendant from the Guidelines heartland, past criminal conduct
need not be identical to the instant crime of conviction. Rather, it must simply be
similar enough to suggest higher culpability or likelihood to recidivate than the
typical case. Id. In Robertson, the only case relied upon by Ms. Aaron, the defendant
was convicted of being a felon in possession of a firearm. Id. at 1207. His criminal
history “began at age 14” and most of his “criminal convictions involved drugs or
guns.” Id. Relying primarily on prior criminal charges that the “Government [had
been] compelled to dismiss . . . because key prosecution witnesses [had] failed to
appear,”2 the district court imposed an above-guidelines sentence, reasoning that the
defendant’s criminal history removed him from the Guidelines heartland. Id. at 1208–
09. On appeal, this court rejected the defendant’s challenge to that conclusion,
accepting the district court’s reasoning that the “[d]efendant’s unconvicted conduct
involving firearms—some of it remarkably violent . . . giv[es] him greater culpability
for being a felon in possession of a firearm than a defendant in the run-of-the-mill
case.” Id. at 1214. Thus, although the defendant had not before been charged with, or
convicted of, the specific federal crime of being a felon in possession of a firearm,
his history of crimes involving firearms and violence was sufficient to remove him
2
These charges involved threatening people with firearms, shooting randomly
at a house, and shooting at the occupants of a car. See United States v. Robertson,
568 F.3d 1203, 1207 (10th Cir. 2009).
11
from the Guidelines heartland. Id.; see also United States v. Proffit, 304 F.3d 1001,
1011–12 (10th Cir. 2002) (affirming district court’s reliance on “[d]efendant’s failure
to pay any restitution or the special assessment, his passing of bad checks . . . and
submission of false medical documentation in an attempt to delay sentencing” as
sufficient “evidence [of his] potential for recidivism” to remove him from the
heartland for mail fraud conviction).
Likewise, the district court here relied primarily on Ms. Aaron’s extensive
history of theft. Although the sentencing judge did note Ms. Aaron’s sheer number of
criminal history points, see, e.g., ROA, vol. III, at 15, he also emphasized her
recurring pattern of theft crimes and its impact on the community, see id. at 20
(“[S]he’s made a criminal livelihood of theft and burglary.”); id. at 28 (referring to
“an incredible string, perhaps not of violent offenses, but still of disruption of the
peace of the community with the number of theft and other offenses that she’s had”);
id. (“[T]here’s no indication that she’s developed a respect for the law, as in her
youthful age she’s just continued on repeated and repeated occasions to violate the
peace of the community”); see also ROA, vol. II, at 51 (giving as a reason for upward
departure “defendant’s lack of respect for the law, extensive history of theft crimes in
a short period of time, the instant offense involve[ing] the theft of firearms, a need to
protect the community, and a high likelihood of recidivism”).
Nonetheless, Ms. Aaron argues her prior “theft convictions were dissimilar
from the present case” because one “involved two counts of auto theft,” another
“involved theft of purses and property from two churches,” and on “two [other]
12
occasions, she stole purses from a locker at the YMCA.” Aplt. Op. Br. at 25. But the
fact that none of these past instances specifically involve the theft of firearms does
not prevent the district court from considering them as evidence of her likelihood to
recidivate.
To be sure, the district court must draw some connection between criminal
history and the instant offense. And if the district court had merely “lumped all of
[Ms. Aaron’s] relevant and irrelevant criminal conduct together,” id., regardless of
the connection between past criminal conduct and the instant offense, that probably
would not have adequately suggested the elevated culpability or likelihood of
recidivism needed to justify an upward departure. See Robertson, 568 F.3d at 1207–
08. But the district court did not, in fact, “lump all of” Ms. Aaron’s criminal history
together. See Aplt. Op. Br. at 25. Rather, it emphasized the likelihood of recidivism
given that this crime—theft of firearms—followed on the heels of many past theft
crimes driven by similar motives.
Ms. Aaron also argues the district court failed to consider as mitigating factors
her mental illness and drug addiction. But although the court did not change its
conclusion that Ms. Aaron fell outside the “heartland” of the Sentencing Guidelines,
it did adequately consider these factors. First, the court accounted for Ms. Aaron’s
mental illness by recommending that she serve her sentence at a medical facility.
Second, the district court considered Ms. Aaron’s drug addiction and expressed
sympathy for Ms. Aaron’s addiction. But it ultimately concluded that “[a]ddiction is
disfavored as a grounds to consider a downward factor on a sentence.” ROA, vol. III,
13
at 28. That conclusion was correct. See U.S.S.G. § 5H1.4 (“Drug or alcohol
dependence or abuse ordinarily is not a reason for a downward departure. Substance
abuse is highly correlated to an increased propensity to commit crime.”); United
States v. Ziegler, 1 F.3d 1044, 1049 (10th Cir. 1993) (noting “the Sentencing
Commission’s desire not to reward drug dependency through departures”).
In sum, the district court did not fail to consider Ms. Aaron’s mental illness
and drug addiction; rather, it “took into account all of the 3553(a) factors, including
the seriousness of [her] offense, [her] repeated offenses, the need for adequate
deterrence, and protecting the public from further crimes by [Ms. Aaron].” United
States v. Liner, 365 F. App’x 150, 153 (10th Cir. 2010) (unpublished). Thus, the
district court did not abuse its discretion in finding that Ms. Aaron’s criminal history
removed her from the Guidelines heartland.
C. Does the Record Support the District Court’s Factual Basis for an Upward
Departure?
1. Standard of Review
Both parties agree Ms. Aaron preserved this issue for review. Where the issue
is preserved, “[w]hether the record sufficiently supports the factual basis underlying
the departure is a question we review for clear error.” United States v. Utley, 62 F.
App’x 833, 837 (10th Cir. 2003) (unpublished); see also United States v. Maldonado-
Campos, 920 F.2d 714, 720 (10th Cir. 1990). If a fact is contested at the sentencing
hearing, however, that fact must be established by a preponderance of the evidence.
United States v. Yates, 22 F.3d 981, 989 (10th Cir. 1994).
14
2. Analysis
Ms. Aaron’s argument on this point is brief and somewhat unclear. She makes
two claims: (1) “the majority of the criminal history points” the district court relied
upon “were not for convictions on charges of theft or related to any criminal
livelihood”; and (2) “[t]he four theft convictions identified in the PIR arose during a
16-month period.”3 Aplt’s Op. Br. at 26.
Her first point is unavailing. The fact that only fifteen of her criminal history
points arose from theft-related crimes does not undermine the district court’s
conclusion that she had “an extensive history of theft crimes in a short period of
time.” ROA, vol. II, at 51. Nor does it compromise the court’s conclusions about
Ms. Aaron’s recidivist tendencies.
As for her second point, Ms. Aaron never explains the significance of the fact
that “four [of her] theft convictions . . . arose during a 16-month period.” Aplt’s Op.
Br. at 26. And, as the Government observes, the record amply supports the district
court’s conclusion that repeated interventions from the criminal justice system have
failed to deter Ms. Aaron from committing more crimes.
3
It is not clear these issues properly fall under the third prong of our departure
analysis. Ms. Aaron does not dispute “the factual accuracy of statements in the
presentence report” or the sentencing hearing. United States v. Warren, 737 F.3d
1278, 1280 (10th Cir. 2013). That is, she never argues the arrests, charges, and
convictions at issue did not take place, or that the district court mischaracterized how
or when they took place. Rather, she challenges the district court’s interpretation of
the significance of those events. Thus, her “factual basis” arguments seem more like
restatements of the arguments she makes under prong two. Nevertheless, we address
these arguments’ significance to the prong three analysis because that is how Ms.
Aaron presented them.
15
Therefore, the district court did not err, let alone commit clear error, in its
factual basis for an upward departure.
D. Was the Degree of Upward Departure Reasonable?
1. Standard of Review
“In determining whether the degree of departure is reasonable . . . the appellate
court should afford the trial court some discretion, as we should not lightly overturn
determinations of the appropriate degree of departure.” United States v. Goldberg,
295 F.3d 1133, 1138 (10th Cir. 2002) (internal quotation marks omitted).
Furthermore, Ms. Aaron and the Government agree that this issue was not preserved
below. Therefore, we review for plain error.
2. Analysis
Ms. Aaron argues the district court erred in determining the degree of its
upward departure. “In calibrating the degree of departure, a district court must
provide an explanation that does more than restate the justification for the upward
departure.” United States v. Shores, 45 F. App’x 854, 858 (10th Cir. 2002)
(unpublished) (internal quotation marks omitted). The district court’s explanation can
rest on “any reasonable methodology hitched to the Sentencing Guidelines, including
extrapolation from or analogy to the Guidelines.” Goldberg, 295 F.3d at 1138(quotation marks omitted). The district court may not, however, simply employ the
language of the Guidelines to achieve its own desired results in sentencing. See, e.g.,
id. at 1139–40 (holding district court erred in applying eight-step reduction where “it
[was] apparent it chose a downward departure of eight levels because such a
16
departure was the minimum necessary to render the defendant eligible for a sentence
that did not involve incarceration”). Likewise, the district court’s methodology may
not be arbitrary. See United States v. Walker, 284 F.3d 1169, 1173 (10th Cir. 2002)
(rejecting district court’s rationale for seven-level upward departure where “the
district court decided to depart one offense level for each of Defendant’s seven prior
convictions in excess of those needed to accumulate the criminal history points
required for his placement in criminal history category VI”).
As Ms. Aaron observes, the Sentencing Guidelines prescribe a method for
district courts to follow when departing upward in category VI cases:
In a case in which the court determines that the extent and nature of the
defendant’s criminal history, taken together, are sufficient to warrant an
upward departure from Criminal History Category VI, the court should
structure the departure by moving incrementally down the sentencing
table to the next higher offense level in Criminal History Category VI
until it finds a guideline range appropriate to the case.
U.S.S.G. § 4A1.3(a)(4)(B).
Here, the district court explained its reasoning for the two-level departure as
follows:
Well, I [have a copy of the sentencing table] and if I went up—she’s 21-
VI. If I went up to 22-VI, the range would be 84 to 105 [months], and
23-VI would be 92 to 115. Given that she has double the criminal
history points necessary to get to a category VI, if I followed that
approach I don’t think a mere adjustment of a[n] offense level of one
level would be sufficient. And if I did even just two levels, my proposed
sentence is within that guideline range of 92 to 115.
17
ROA, vol. III, at 35.4 Thus, the district court followed the procedure described in
U.S.S.G. § 4A1.3(a)(4)(B): it moved up one offense level, determined the resulting
guideline range was still inappropriate given the factors previously discussed, then
moved up another offense level, and determined the resulting guideline range was
appropriate.
The substance of the district court’s explanation for moving up a second
offense level—“[g]iven that she has double the criminal history points necessary to
get to a category VI, . . . I don’t think a mere adjustment of . . . one level would be
sufficient”—is adequate. Id. It “expressly articulate[s] . . . the logical foundation for
the degree of departure selected.” United States v. Begaye, 635 F.3d 456, 470 (10th
Cir. 2011) (quotation marks omitted). The district court considered Ms. Aaron’s
criminal history sufficiently in excess of a “heartland” case that a one-level departure
would not adequately reflect it, but a two-level departure would. In addition, the
district court’s extensive explanation of the seriousness of Ms. Aaron’s criminal
history lends some additional weight to the court’s choice to depart by two levels,
rather than just one. See, e.g., United States v. Martinez, 418 F.3d 1130, 1134 (10th
Cir. 2005) (affirming district court’s explanation where the “degree of departure also
advance[d] the goals of deterrence and protecting the public”); see also United States
4
The district court originally announced only “a sentence that includes an
upward variance of 110 months’ incarceration,” citing only Ms. Aaron’s “long string
of criminality,” the statutory maximum of 120 months, and “the inadequacy of the
criminal history characterization.” ROA, vol. III, at 30–31. Ms. Aaron’s counsel
pointed out the commentary to U.S.S.G. § 4A1.3 later in the sentencing hearing, and
the district court then explained its sentence as the result of a two-step departure.
18
v. McGowan, 6 F. App’x 806, 810 (10th Cir. 2001) (unpublished) (noting “the district
court is not required to justify the degree of departure with mathematical precision”).
Although the district court’s explanation of its two-level departure could have
been more detailed, it followed the Guidelines’ prescribed method for determining
the degree of departure and was grounded in relevant facts. Therefore, the district
court did not abuse its discretion in calculating the degree of departure from the
Guidelines’ range.
Because Ms. Aaron has failed to establish the first prong of plain error
review—error—her claim fails.5
II. CONCLUSION
We AFFIRM the sentence imposed by the district court.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
5
Even if Ms. Aaron could establish error, she cannot show that such error was
plain. See United States v. Garcia-Damian, 702 F. App’x 743, 746 (10th Cir. 2017)
(unpublished) (holding district court’s explanation of degree of departure, although
incomplete, was not plain error). Nor is there any indication that the alleged error
affected Ms. Aaron’s substantial rights because Ms. Aaron has not shown “that the
district court’s failure to elaborate on its reasoning impacted the outcome of [her]
sentencing and therefore affected [her] substantial rights.” United States v. Gamez-
Tapia, 501 F. App’x 780, 782–83 (10th Cir. 2012) (unpublished); see also Begaye,
635 F.3d at 471 (rejecting defendant’s challenge on plain-error review where
defendant “fail[ed] to advance any argument as to how this error affected his
sentence, and thus utterly fails to carry his burden”). Finally, Ms. Aaron advances no
argument on whether any error in explaining the degree of upward departure
“affect[s] . . . the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Ruiz-Terrazas, 477 F.3d 1196, 1203 (10th Cir. 2007).
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