United States Court of Appeals,
Eleventh Circuit.
No. 95-4035
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Reinaldo SANTOS, Defendant-Appellant.
Sept. 5, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-8108-CR-NCR), Norman C. Roettger, Jr.,
Chief Judge.
Before DUBINA and BLACK, Circuit Judges, and FAY, Senior Circuit
Judge.
PER CURIAM:
Reinaldo Santos appeals his sentence for possession of
ammunition and possession of a firearm by a convicted felon. The
District Court enhanced his sentence under the Armed Career
Criminal Act and in addition departed upward from the applicable
sentencing guidelines range in order to more accurately reflect
Santos' criminal history. The District Court also ordered
restitution. Santos argues that his criminal history was already
taken into account by the Armed Career Criminal Act enhancement,
and that the court ordered restitution for a crime Santos was not
convicted of. We affirm the length of the sentence but reverse the
order of restitution.
I. BACKGROUND
Mr. Santos was convicted of violating
18 U.S.C. § 922(g),
which prohibits a convicted felon from possessing a firearm and
from possessing ammunition. Santos' offense level under the
sentencing guidelines was increased from 28 to 34 because he was an
armed career criminal under
18 U.S.C. § 924(e). That section
requires an increase in the offense level for defendants convicted
under
18 U.S.C. § 922(g) who have three prior convictions for
violent felonies or serious drug offenses. In addition, Santos had
a criminal history score of 21, which resulted in a Criminal
History Category VI. With a guideline base offense level of 34 and
a Criminal History Category VI, the guidelines called for
imprisonment for 262 to 327 months. However, the court made an
upward departure under U.S.S.G. § 4A1.3, increasing the offense
level to 36 with a guideline range of 324 to 405 months.
The court sentenced Santos to 360 months imprisonment. In
addition, the court ordered Santos to pay restitution for a robbery
that the prosecution contends Santos committed just before he was
arrested with the firearm. Santos appealed.
II. STANDARD OF REVIEW
This Court reviews the legal justification for a District
Court's departure from the sentencing guidelines de novo. United
States v. Maurice,
69 F.3d 1553, 1556 (11th Cir.1995). We review
the factual justification for such a departure for clear error.
Id. We must also review such a departure for reasonableness.
Id.
We review an order of restitution de novo. United States v. Cobbs,
967 F.2d 1555, 1556 (11th Cir.1992).
III. ANALYSIS
A. The Sentencing Guidelines
Section 4A1.3 of the Sentencing Guidelines allows a departure
from the sentencing range where
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.
U.S.S.G. § 4A1.3. However, the Supreme Court has held that
it is an incorrect application of the Guidelines for a
district court to depart from an applicable sentencing range
based on a factor that the Commission has already fully
considered in establishing the guideline range.
Williams v. United States,
503 U.S. 193, 200,
112 S.Ct. 1112, 1119,
117 L.Ed.2d 341 (1992).
Santos argues that the increase in the offense level under the
Armed Career Criminal Act precludes an upward departure under
U.S.S.G. § 4A1.3 because the factors that can enhance the sentence
under § 4A1.3 were already considered by the Sentencing Commission
under the Armed Career Criminal Act.
It is true that the Armed Career Criminal Act increases the
offense level from 28 to 36. An offense level of 36 with a
Criminal History Category VI (as opposed to a defendant with no
criminal history who had illegal possession of a firearm) results
in an enormous increase in the term of imprisonment based solely on
the defendant's past criminal behavior. See U.S. v. Ford,
996 F.2d
83, 87 (5th Cir.1993).
However, Santos' 21 criminal history points far exceeded the
13 points needed for a Criminal History Category VI. In addition,
Santos' criminal history score did not reflect several other prior
convictions or conduct, including a burglary and conduct in
connection with an aggravated battery. Nor were those other crimes
needed to sentence Santos as an armed career criminal under
18
U.S.C. § 924(e). Thus the enhancement under U.S.S.G. § 4A1.3 was
not "based on a factor that the Commission ha[d] already fully
considered in establishing the guideline range," Williams,
503 U.S.
at 200,
112 S.Ct. at 1119, and "reliable information indicate[d]
that the criminal history category [did] not adequately reflect the
seriousness of the defendant's past criminal conduct or the
likelihood that the defendant will commit other crimes." U.S.S.G.
§ 4A1.3. Based on the specific circumstances of this case, the
enhancement was within the District Court's discretion.
B. Restitution
Santos was not convicted of the crime of robbery, yet the
District Court ordered him to pay $2000 in restitution, equal to
the amount taken in the robbery. A court can order restitution for
offenses which the defendant has been convicted of, for harm due to
the defendant's criminal conduct in the course of a conspiracy or
pattern of criminal activity, and to the extent agreed on in a plea
agreement.
18 U.S.C. § 3663. The United States concedes that none
of the grounds for restitution apply in the instant case, and that
Santos' conviction for possession of a firearm and ammunition by a
felon does not support the order of restitution.
IV. CONCLUSION
We conclude that the District Court was within its discretion
when it departed from the sentencing guidelines, but that the court
had no authority to order restitution. The term of imprisonment is
AFFIRMED, while the order of restitution is REVERSED.
