United States v. Christiansen , 188 F. App'x 767 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 13, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-6255
v. (W .D. of Okla.)
D EW A Y N E E. C HR ISTIA N SEN, (D.C. No. CR -05-28-2-F)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **
Defendant-Appellant Dewayne E. Christiansen appeals 180-month
concurrent sentences imposed after he was convicted of two counts of bank
robbery in violation of 18 U.S.C. § 2113(a). Christiansen argues that the district
court’s sentence w as unreasonable because it departed upw ard by six offense
levels after it concluded the United States Sentencing Guidelines (“Guidelines”)
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
did not adequately account for his extensive criminal history. The additional
offense levels increased Christiansen’s minimum sentence from 92 months to 151
months. Since the district court correctly applied USSG § 4A1.3 in deciding upon
a six-level upw ard departure, and Christiansen has failed to otherwise
demonstrate that his sentence is unreasonable, we AFFIRM .
I. Discussion
C hristiansen and co-defendant Taylor Garrison, Jr. were indicted on two
counts of bank robbery. After Christiansen pleaded guilty, the presentence report
calculated his criminal history category as VI and his offense level as 23, yielding
a Guideline range of 92–115 months for each robbery. The report noted that
Christiansen had an additional 27 felony convictions that were not used in the
criminal history calculation because of their age. At sentencing, the district court
determined that the G uidelines did not adequately account for Christiansen’s
criminal history. The court therefore invoked USSG § 4A1.3(a) 1 and departed
1
USSG § 4A1.3(a) provides as follows:
(a) U PW ARD DEPARTURES.—
(1) STANDARD FOR UPW ARD DEPARTURE.— If 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 com mit other crimes, an upward
departure may be warranted.
(2) TY PES OF INFORM ATION FORM ING THE BASIS FO R
UPW ARD DEPARTURE.— The information described in
subsection (a) may include information concerning the
following:
(continued...)
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upward six levels in its calculation of the applicable G uideline sentence. This
resulted in an offense level of 29, which, when combined with Christiansen’s
1
(...continued)
(A) Prior sentence(s) not used in computing the criminal
history category (e.g., sentences for foreign and tribal
offenses).
(B) Prior sentence(s) of substantially more than one year
imposed as a result of independent crimes committed on
different occasions.
(C) Prior similar misconduct established by a civil
adjudication or by a failure to comply with an
administrative order.
(D) W hether the defendant was pending trial or
sentencing on another charge at the time of the instant
offense.
(E) Prior similar adult criminal conduct not resulting in
a criminal conviction.
(3) PROHIBITION.— A prior arrest record itself shall not be
considered for purposes of an upward departure under this
policy statement.
(4) DETERMINATION O F EXTENT OF UPW ARD
DEPARTURE.—
(A) IN GENERAL.— Except as provided in subdivision
(B), the court shall determine the extent of a departure
under this subsection by using, as a reference, the
criminal history category applicable to defendants whose
criminal history or likelihood to recidivate most closely
resembles that of the defendant’s.
(B) UPWARD D EPARTURES FROM CATEGORY
VI.— 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
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criminal history category of VI, yielded a recommended Guideline range of
151–188 months. The court sentenced Christiansen to two concurrent terms of
180 months.
Christiansen argued at sentencing and maintains on appeal that the district
court acted unreasonably when it imposed sentences of 180 months. Christiansen
contends that the district court should not have applied USSG § 4A1.3(a) and that
doing so resulted in a sentence unreasonable in light of the factors set forth at 18
U.S.C. § 3553(a).
W hile w e have held that an “extreme divergence” from the applicable
Guideline range must be supported by “dramatic facts” in order to be reasonable,
we require only an “appropriate justification” w here the sentence is more
moderately separated from the Guideline recommendation. See United States v.
Cage, __ F.3d __, 2006 W L 1554674 (10th Cir. 2006) (reversing a non-Guidelines
sentence of six days for unreasonableness where the minimum advisory Guideline
sentence w as 46 months and the district court had already decided that a departure
under the Guidelines themselves would be inappropriate). M oreover, a sentencing
court “is not required to consider individually each factor listed in § 3553(a)
before issuing a sentence,” and we will “not demand that the district court recite
any magic words to show us that it fulfilled its responsibility to be mindful of the
factors that Congress has instructed it to consider.” United States v. Contreras-
M artinez, 409 F.3d 1236, 1242 (10th Cir. 2005). Nonetheless, we turn to a
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consideration of the § 3553(a) factors as they apply to Christiansen’s sentence to
determine whether they were properly taken into account by the district court.
Section 3553(a)(1) mandates consideration of “the nature and
circumstances of the offense and the history and characteristics of the defendant.”
Here, Christiansen’s history and characteristics were plainly considered by the
district court when it decided to enhance under USSG § 4A1.3(a) in light of
Christiansen’s extensive criminal record. The next factor requires that the
sentencing court balance
the need for the sentence imposed to: (A) reflect the seriousness of
the offense, to promote respect for the law, and to provide just
punishment for the offense; (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from further crimes of
the defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(2). The district court concluded that Christiansen deserved a
higher sentence in light of this factor. His extensive criminal history
demonstrated a longstanding lack of respect for the law, his offense was of a
serious nature, prior convictions have obviously failed to deter him from criminal
conduct, and the public clearly required protection from Christiansen’s
demonstrated penchant for criminality.
The next three factors mandate that the sentencing court consider the kinds
of sentences available, the applicable Guideline sentencing range, and any
pertinent policy statements in the Guidelines. 18 U.S.C. § 3553(a)(3)–(5). These
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factors were explicitly considered by the district court when it acknowledged the
initial G uideline range and decided that an enhancement pursuant to USSG
§ 4A1.3(a) was appropriate. The enhanced sentence is reasonable in light of these
factors for the same reason that the enhancement was itself appropriate under the
Guidelines: the Guidelines significantly under-represented Christiansen’s criminal
career.
Finally, § 3553(a)(6) requires the district court be cognizant of “the need to
avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct.” Christiansen’s sentence is
undeniably disparate from the typical sentence imposed for bank robbery;
however, this factor cautions only against unwarranted sentence disparity.
Christiansen’s enhanced sentence was warranted by his exceptional criminal
record and the inability of the Guidelines to properly account for his criminal
history absent a USSG § 4A1.3(a) departure. Therefore, Christiansen’s sentence
is reasonable under this factor.
In sum, a review of the relevant § 3553(a) factors discloses that the district
court did not impose an unreasonable sentence. 2
2
It is worth noting that Christiansen’s sentence was properly enhanced
under USSG § 4A1.3. As we have noted, the Guidelines, while advisory after the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005),
“‘represent at this point eighteen years’ worth of careful consideration of the
proper sentence for federal offenses’” and the Guidelines, “rather than being at
odds with the § 3553(a) factors, are instead the expert attempt of an experienced
(continued...)
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II. Conclusion
For the foregoing reasons, we find Christiansen’s sentence to be reasonable
and AFFIRM the district court.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
2
(...continued)
body to weigh those factors in a variety of situations.” United States v. Terrell,
445 F.3d 1261, 1265 (10th Cir. 2006) (quoting United States v. M ykytiuk, 415
F.3d 606, 607 (7th Cir. 2005). The same can be said of those portions of the
Guidelines which explicitly provide for circumstances in which a departure may
be necessary in order to achieve a reasonable sentence.
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