United States v. James Lee Loggins ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 1, 2006
Nos. 05-11692, 05-11693, THOMAS K. KAHN
05-11694 & 05-11932 CLERK
Non-Argument Calendar
________________________
D. C. Docket Nos.
04-00340-CR-1-1, 04-00332-CR-1-1,
04-00109-CR-1-1 & 05-00105-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES LEE LOGGINS,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(February 1, 2006)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
James Lee Loggins appeals his concurrent sentences of 150 months
imprisonment for four counts of bank robbery and one count of attempted bank
robbery in violation of 18 U.S.C. § 2113(a).1 We affirm.
The district court held a sentencing hearing on March 4, 2005. It initially
gave Loggins a base offense level of 26 and criminal history category of IV.
However, the court stated that “the criminal history score of 4 is not adequate to
predict the risk of recidivism in this case” given Loggins’ drug habit and previous
bank robbery convictions. The court also noted that Loggins had benefitted greatly
from having received reduced sentences for prior offenses due to their
consolidation. The court stated that “what I’m supposed to do at least under the
strict guideline scheme is first consider whether 110 to 137 months [the next
criminal history category, which is V] is enough, and I think it’s not . . .” The
court determined that a two-level upward adjustment to criminal history category
VI was appropriate.
With a total offense level of 26 and a criminal history category of VI, the
court determined the guideline range to be 120 to 150 months. The court then
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Loggins was convicted of the following offenses: (1) two bank robberies in the
Northern District of Alabama; (2) a bank robbery in Middle District of Alabama; (3) a bank
robbery in the Northern District of Georgia; and (4) an attempted bank robbery in the Southern
District of Alabama. Originally, there were four separate cases. However, the three Alabama
cases were consolidated with the Northern District of Georgia case.
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asked the parties for their recommendations within the applicable guideline range,
and both recommended the low end of the range. However, the court sentenced
Loggins to 150 months imprisonment for each of the four counts of bank robbery
and for the one count of attempted bank robbery with the terms to run
concurrently.
Loggins contends that the district court erred when it departed upward at
sentencing pursuant to U.S.S.G. § 4A1.3 because it did not refer to any of the
enumerated factors as justification for the departure. He argues that the district
court failed to seriously consider whether the next higher criminal history category
of V adequately reflected Loggins’ past conduct before settling on a criminal
history category of VI.
We are required to “review for unreasonableness” a sentence imposed post-
Booker. United States v. Booker, 543 U.S. 220, ___, 125 S. Ct. 738, 765 (2005)
(internal quotation marks and alteration omitted); see also United States v.
Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (noting that “Booker established a
‘reasonableness’ standard for the sentence finally imposed on a defendant”).
Nonetheless, we have held that the district court is obligated “to calculate correctly
the sentencing range prescribed by the Guidelines.” Crawford, 407 F.3d at 1178.
The requirement to calculate correctly the guideline range applies to upward
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departures. See United States v. Ellis, 419 F.3d 1189, 1193 (11th Cir. 2005).
The pre-Booker standards of review for application of the Sentencing
Guidelines issues apply post-Booker. Crawford, 407 F.3d at 1178. We review
departures from the guidelines in three analytical steps: (1) any legal question
concerning the district court’s interpretation of the guidelines is reviewed de novo;
(2) “the factual basis for a departure is reviewed for sufficiency under a clear error
standard”; and (3) “the direction and scope of a departure are reviewed for
reasonableness.” United States v. Maurice, 69 F.3d 1553, 1556 (11th Cir. 1995).
We will not reverse, however, if an error is harmless, that is if it does not “affect
the substantial rights of the parties.” See United States v. Hernandez, 160 F.3d
661, 670 (11th Cir. 1998).
Under U.S.S.G. § 4A1.3(a)(1), a court can depart upward “[i]f 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 crimes . . . .” A court can base its
upward departure, pursuant to U.S.S.G. § 4A1.3(a)(2), on the following
information:
(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.
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(C) Prior similar misconduct established by a civil adjudication or by
a failure to comply with an administrative order.
(D) Whether 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.
As to the extent of the upward departure, except as to departures from category VI,
“the court shall determine the extent of a departure . . . 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.” U.S.S.G.
§ 4A1.3(a)(4)(A).
In departing upward under § 4A1.3, a court “may not simply, and
inexplicably, depart from the applicable guidelines range.” United States v.
Williams, 989 F.2d 1137, 1142 (11th Cir. 1993) (internal quotation marks
omitted). A district court must follow a step-by-step procedure. See id. We have
stated:
[w]hen departing upward under the auspices of § 4A1.3, the court
must look first to the next criminal history category. If that category
adequately reflects the defendant’s past conduct, then the court must
state its findings and sentence the defendant within the range for the
new category. If, on the other hand, the court decides that this new
category is still inadequate to reflect the defendant’s criminal history,
the court must look to the next highest category and repeat its inquiry.
Id. (internal quotation marks and citations omitted). “What the court cannot do is
hold that because the defendant almost falls within the definition of career
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offender, i.e., he would be a career offender if his sentences had not been
consolidated, it automatically will treat him as such.” United States v. Delvecchio,
920 F.2d 810, 814 (11th Cir. 1991).
In this case, the court did not err in its application of the guidelines. The
district court followed the required step-by-step procedure. First, the court
correctly calculated the applicable guidelines range. Second, in departing
horizontally across the guidelines table, the court considered the next highest
criminal history category, which was category V. Third, only when the court
determined that category V was insufficient did it consider and impose a sentence
based on a criminal history category of VI. Moreover, the court relied on the
factors listed in U.S.S.G. § 4A1.3 when it imposed the upward departure, including
information regarding Loggins’ 1991 bank robbery convictions for which he
received a sentence of more than one year. See U.S.S.G. § 4A1.3(a)(2)(B). Thus,
the court’s upward departure was reasonable.
Loggins also contends that the district court violated the mandatory
provisions of both 18 U.S.C. § 3553(c) and U.S.S.G. § 4A1.3(c) by failing to set
forth in writing the reasons for its departure. Under § 3553(c), the court is required
to state in open court at the time of sentencing its reasons for imposing a particular
sentence. Section 3553(c). If the sentence is outside the guideline range for the
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applicable category of offense, the court must state with specificity in its “written
order of judgment and commitment” the reasons for its departure. § 3553(c)(2).
Pursuant to U.S.S.G. § 4A1.3(c), the court, in departing from the otherwise
applicable criminal history category, “shall specify in writing the following: (1)
[i]n the case of an upward departure, the specific reasons why the applicable
criminal history category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other
crimes.” U.S.S.G. § 4A1.3(c)(1).
Because Loggins did not object in the district court to its failure to provide a
written statement pursuant to 18 U.S.C. § 3553(c)(2) and U.S.S.G. § 4A1.3(c)(1),
the absence of a written statement is reviewed only for plain error. See United
States v. Massey, 89 F.3d 1433, 1441 (11th Cir. 1996). To satisfy the plain error
standard, the defendant must establish that: (1) the district court committed
“error,” (2) the error was plain or obvious, and (3) the error “affected substantial
rights,” in that the error was prejudicial and not harmless. United States v. Olano,
507 U.S. 725, 730–32, 113 S. Ct. 1770, 1776 (1993).
There is error in this case and it is plain or obvious. The district court failed
to state in writing its reasons for the upward departure, as required by 18 U.S.C. §
3553(c)(2) and U.S.S.G. § 4A1.3(c)(1). However, Loggins has not shown that the
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error affected his substantial rights. During the February 16, 2005 hearing
regarding the PSI and the March 4, 2005 sentencing hearing, the court explained in
great detail why it considered the guidelines range for a criminal history category
of IV to be inadequate. The judge referred to Loggins’ criminal history, his
likelihood of recidivism, and the fact that Loggins had benefitted greatly from
having received reduced sentences for prior offenses due to their consolidation.
Because the court articulated its reasons for the upward departure on the record in
two separate hearings, Loggins has not demonstrated that the court’s failure to
memorialize in writing its reason for the upward departure affected his substantial
rights, that it was prejudicial.
AFFIRMED.
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