United States v. Lawrence ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4886
DESMOND CHARLES LAWRENCE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-96-449)
Argued: September 23, 2003
Decided: November 13, 2003
Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Widener and Judge Niemeyer joined.
COUNSEL
ARGUED: Allen Bethea Burnside, Assistant Federal Public
Defender, Columbia, South Carolina, for Appellant. John Michael
Barton, Assistant United States Attorney, Columbia, South Carolina,
for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States
Attorney, Columbia, South Carolina, for Appellee.
2 UNITED STATES v. LAWRENCE
OPINION
WILKINSON, Circuit Judge:
Appellant Desmond Charles Lawrence robbed one bank and
attempted to rob another bank on June 14, 1996, in Columbia, South
Carolina. Lawrence pled guilty to one count of bank larceny, 18
U.S.C. § 2113(b), and was convicted by a jury of attempted unarmed
bank robbery, 18 U.S.C. § 2113(a). After he twice successfully
appealed for resentencing, the district court resentenced Lawrence to
240 months for unarmed bank robbery and 22 months for bank lar-
ceny, to be served consecutively. Lawrence’s present contention is
that the district court erred in concluding that he was a de facto career
offender and upwardly departing on that basis. Because the district
court’s upward departure was an appropriate and reasonable response
to the court’s finding that Lawrence’s criminal history category sig-
nificantly underrepresented the seriousness of his criminal history and
his likelihood of recidivism, we affirm the sentence.
I.
On June 14, 1996, Desmond Charles Lawrence attempted to rob
one bank and successfully robbed another bank in Columbia, South
Carolina in rapid succession. At 3:30 p.m. he gave a bank teller a
handwritten hold-up note, but fled with nothing when he saw the
teller dialing 911. Approximately half an hour later, Lawrence entered
another bank, distracted a teller, grabbed $1591 in cash from the tell-
er’s drawer, and ran out of the bank. Lawrence fled to Los Angeles,
and five days later turned himself in to federal authorities.
On December 30, 1996, Lawrence entered a guilty plea to one
count of bank larceny, 18 U.S.C. § 2113(b). On January 6, 1997, a
jury convicted Lawrence of attempted unarmed bank robbery, 18
U.S.C. § 2113(a). On February 24, 1997, the trial court sentenced
Lawrence to 240 months on the unarmed bank robbery charge and
120 months on the bank larceny charge, to be served consecutively.
Lawrence appealed his sentence, and the case was remanded twice for
resentencing. See United States v. Lawrence, 161 F.3d 250, 255-56
(4th Cir. 1998) (remanding for resentencing so that the district court
could more completely explain how it arrived at the sentence); United
UNITED STATES v. LAWRENCE 3
States v. Lawrence, 248 F.3d 300, 304-05 (4th Cir. 2001) (remanding
for resentencing on grounds that Fed. R. Crim. P. 43 required the
defendant’s actual presence at sentencing).
On November 5, 2002, the district court resentenced Lawrence.
The Presentence Report showed that Lawrence’s offense level was 22
and that he had a criminal history category of V, which resulted in a
sentencing guideline range of 77-96 months. The district court deter-
mined that Lawrence’s criminal history did not fully reflect the seri-
ousness of Lawrence’s past criminal conduct and the likelihood that
Lawrence would commit other crimes. Pursuant to section 4A1.3 of
the Sentencing Guidelines, the district court decided on an upward
departure from the criminal history category V. The district court
detailed several independent grounds for an upward departure and
determined that the appropriate criminal history category was VI,
which called for a sentencing range of 84-105 months.
The district court then found that an upward departure to category
VI still failed to capture the full seriousness of Lawrence’s past
offenses and his likelihood of recidivism. Since Lawrence had only
one and not "at least two prior felony convictions of either a crime
of violence or a controlled substance offense," under U.S.S.G.
§ 4B1.1 he could not be formally classified as a career offender. But
the district court nevertheless determined that a number of Law-
rence’s previous crimes and convictions were sufficiently analogous
to qualifying felonies that they could be considered for all intents and
purposes a second predicate conviction. As a result, the district court
found that Lawrence was a de facto career offender and departed from
the previously calculated offense level of 22 to the base offense level
of 32 for a career offender. The combination of criminal history cate-
gory VI and a base offense level of 32 resulted in a sentencing range
of 210-262 months. The district court sentenced Lawrence to 240
months for unarmed bank robbery and 22 months for bank larceny,
to be served consecutively.
II.
Lawrence argues that the district court erred in concluding that he
was a de facto career offender and in upwardly departing on this
basis. "A district court must impose a sentence within a defendant’s
4 UNITED STATES v. LAWRENCE
guideline range ‘unless the court finds that there exists an aggravating
or mitigating circumstance of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission in formulat-
ing the guidelines that should result in a sentence different from that
described.’" United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992)
(quoting 18 U.S.C. § 3553(b) (2000)). The sentencing court must first
identify a particular aggravating or mitigating circumstance not ade-
quately considered by the Sentencing Commission in formulating the
Sentencing Guidelines. Second, the sentencing court must determine
that the circumstance is of sufficient importance and magnitude that
a departure from the guideline range should result. Third, the extent
of any departure adopted by the sentencing court must be reasonable.
See United States v. Cash, 983 F.2d 558, 560 (4th Cir. 1992).
The Sentencing Commission has expressly identified some circum-
stances that it did not adequately consider, including the inadequacy
of a defendant’s criminal history category. See United States v. Sum-
mers, 893 F.2d 63, 67 (4th Cir. 1990). Section 4A1.3 of the Guide-
lines expressly authorizes sentencing courts to upwardly depart when
the defendant’s "criminal history category significantly underrepre-
sents the seriousness of the defendant’s criminal history or the likeli-
hood that the defendant will commit further crimes," U.S.S.G.
§ 4A1.3, and the district court relied on this section for its upward
departure.
We do not believe that the district court erred in the nature or in
the extent of the departure from Lawrence’s criminal history category
or base offense level. We need not conclude whether an abuse of dis-
cretion standard, see Koon v. United States, 518 U.S. 81, 99-100
(1996), or de novo review applies to this case, see Prosecutorial Rem-
edies and Tools Against the Exploitation of Children Today Act of
2003, Pub. L. No. 108-21, § 401(d), 117 Stat. 650, 670 (amending 18
U.S.C. § 3742(e)), because we find that the result would be the same
under either standard of review.
The district court detailed several independent grounds for both the
departure from criminal history category V to category VI and the
finding that Lawrence was a de facto career offender.
UNITED STATES v. LAWRENCE 5
A.
Although Lawrence only indirectly challenged the court’s determi-
nation that a departure from criminal history category V to category
VI was appropriate,1 it is important to confirm the fact that the district
court soundly grounded this initial step.
"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, the court may consider imposing a sentence departing
from the otherwise applicable guideline range." U.S.S.G. § 4A1.3. "A
departure under this provision is warranted when the criminal history
category significantly underrepresents the seriousness of the defen-
dant’s criminal history or the likelihood that the defendant will com-
mit further crimes." Id. Section 4A1.3 allows sentencing judges to
consider reliable information which "may include, but is not limited
to, information concerning: (a) prior sentence(s) not used in comput-
ing 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 adjudi-
cation 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 crimi-
nal conduct not resulting in a criminal conviction." Id.
The district court identified three independent reasons why the sen-
tencing range failed to accurately reflect Lawrence’s criminal history
or his likelihood of recidivism. First, the district court found that
Lawrence’s extensive juvenile record, which included multiple thefts
and charges for assaults, was not used to determine his criminal his-
tory category. Second, the district court noted that Lawrence was
involved in no fewer than six incidents in which he assaulted or
fought with others in custody, as well as multiple other incidents of
1
Lawrence’s arguments focus on challenging the de facto career
offender designation, but the district court’s upward departure from the
77-96 month range includes the upward departure from criminal history
category V to category VI.
6 UNITED STATES v. LAWRENCE
misconduct ranging from physical interference with guards to defi-
ance of guards’ orders. This misconduct was handled administratively
by correctional officials and therefore was not reflected in Lawrence’s
criminal history. The district court noted a departure was appropriate
because Lawrence’s juvenile criminal history and conduct while in
custody made his criminal history conduct considerably more serious
than that of a "hypothetical person, [who] had only defendant Law-
rence’s adult and point countable offenses," yet shared the same crim-
inal history category. Third, the district court found that Lawrence’s
likelihood of committing other serious crimes was "clearly present."
The district court emphasized the number and type of the incidents
and the fact that Lawrence had rarely, if ever, successfully completed
parole or probation without problems or violations. Lawrence even
suggested at his original sentencing that he would break the law again
and later demonstrated this resolve through an attempted jail break
and carjacking while in transit to a federal prison in Atlanta.
These three factors, both individually and collectively, support the
district court’s decision that an upward departure was appropriate.
The district court followed the guidance that the Policy Statement for
U.S.S.G. § 4A1.3 provides and moved Lawrence up one category
from criminal history category V to criminal history category VI. This
change, as noted, increased Lawrence’s sentencing range from 77-96
to 84-105 months.
B.
The district court next determined that even the upgraded sentenc-
ing range of 84-105 months failed to adequately reflect the serious-
ness of Lawrence’s past conduct and his likelihood of committing
future crimes. For this reason, the court proceeded to find that Law-
rence was a de facto career offender and therefore departed directly
to the career offender guidelines range.2
2
"A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time of the instant offense of conviction, (2) the
instant offense of conviction is a felony that is either a crime of violence
or a controlled substance offense, and (3) the defendant has at least two
UNITED STATES v. LAWRENCE 7
This court has laid out three possible approaches for a district court
to follow when it finds that the highest criminal history category, cat-
egory VI, is inadequate or that the defendant would be considered a
career offender, but for the defendant’s successful challenge to a
predicate offense. See United States v. Cash, 983 F.2d 558, 561 (4th
Cir. 1992). First, a district court may exercise its discretion not to
depart. Second, a district court may determine the extent of a depar-
ture by extrapolating from the existing sentencing table and consider-
ing the appropriateness of successively higher categories level by
level. Id. Third, a sentencing court may act as the district court did
in the present case and directly depart to sentencing based on de facto
career offender status: "[o]nce the district court determines that a
departure under U.S.S.G. § 4A1.3 is warranted and that the defen-
dant’s prior criminal conduct is of sufficient seriousness to conclude
that he should be treated as a career offender, the district court may
depart directly to the guideline range applicable to career offenders
similar to the defendant." Id. at 562; see also United States v. Hines,
943 F.2d 348, 354-55 (4th Cir. 1991) (per curiam); United States v.
Gardner, 905 F.2d 1432, 1437-39 (10th Cir. 1991); United States v.
Campbell, 888 F.2d 76, 78-79 (11th Cir. 1989).
This court has further explained the de facto career offender classi-
fication in terms that apply to Lawrence’s case. "[T]he district court
may sentence a defendant as a de facto career offender when he has
committed two crimes that would qualify as predicate crimes for
career offender status, but for some reason cannot be counted."
United States v. Harrison, 58 F.3d 115, 118 (4th Cir. 1995). Further,
"a defendant may be sentenced as a de facto career offender . . . if two
of the defendant’s prior crimes of violence are consolidated for sen-
tencing purposes and thus do not constitute two separate predicate
offenses." Id.prior felony convictions of either a crime of violence or a controlled sub-
stance offense." U.S.S.G. § 4B1.1. "The term ‘crime of violence’ means
any offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that — (1) has as an element the use,
attempted use or threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another." U.S.S.G. § 4B1.2.
8 UNITED STATES v. LAWRENCE
That is what happened here. Lawrence committed two bank rob-
beries on January 14, 1991, in Hawaii, which were consolidated for
sentencing on April 29, 1993. These robberies occurred within fifty-
three minutes of each other and were treated as related for Sentencing
Guidelines purposes, because they "resulted from offenses that (A)
occurred on the same occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated for trial or sentencing."
U.S.S.G. § 4A1.2 n.3. If the second robbery conviction had not been
treated as a related prior sentence, it would have served as the second
predicate offense of a felony crime of violence to establish Law-
rence’s de jure career offender status. See U.S.S.G. § 4B1.1.
"The guidelines do take into account the possibility that an offender
may be sentenced for multiple related offenses at one time and prop-
erly count such an incident as a single offense. Nothing in the guide-
lines, however, indicates that such a calculation is designed to treat
more leniently a defendant who is fortuitously sentenced at one hear-
ing on two disparate charges." United States v. Hines, 943 F.2d 348,
354 (4th Cir. 1991) (per curiam). The district court thus correctly held
that the fact that the two bank robberies were treated as related and
not counted separately under the Sentencing Guidelines for calculat-
ing the criminal history category, does not bar the determination that
these crimes were factually distinct, and thus not adequately consid-
ered under the Guidelines for the purposes of an upward departure.
See id. at 355. These two crimes were not considered separately in the
Presentence Report’s determination of Lawrence’s criminal history or
in the district court’s decision on an upward departure to criminal his-
tory category VI.
Lawrence argues, however, that U.S.S.G. § 4A1.1(f) shows that the
Guidelines anticipate how to address violent felonies as related con-
victions for criminal history calculations. That section states that the
district court should "[a]dd 1 point for each prior sentence resulting
from a conviction of a crime of violence that did not receive any
points under (a), (b), or (c) [of § 4A1.1(f)] because such sentence was
considered related to another sentence resulting from a conviction of
a crime of violence, up to a total of 3 points for this item." U.S.S.G.
§ 4A1.1(f). Lawrence therefore asserts that only one point should
have been added to his criminal history for the second bank robbery,
UNITED STATES v. LAWRENCE 9
rather than the district court’s upward departure to de facto career
offender status.
Lawrence’s contention that a point should have been added under
§ 4A1.1(f) to his criminal history for each prior crime of violence that
was treated as a related crime for sentencing does nothing to render
§ 4A1.3 inoperative. Section 4A1.1(f) does not undermine the appro-
priateness of the upward departure decision under § 4A1.3 since the
district court could still determine at the end of the day that Law-
rence’s criminal history significantly underrepresented the seriousness
of the defendant’s criminal history and the likelihood of recidivism.
It is unlikely that the Sentencing Commission sought to place sentenc-
ing courts in a virtual straightjacket by limiting consideration of all
related convictions of crimes of violence to a maximum of three crim-
inal history points. Such an approach would dictate that no matter
how heinous a violent crime spree, it could at most boost a defen-
dant’s criminal history by three points. This approach could also
undermine the goal of uniformity in sentencing. Individuals who for
reasons of convenience or economy fortuitously had prior convictions
consolidated for sentencing might receive much different treatment
than defendants who had separate prior sentences. See United States
v. Hines, 943 F.2d 348, 354-55 (4th Cir. 1991) (per curiam).
Our prior recognition of de facto career offender status exists to
remedy precisely the type of situation in which a district court deter-
mines that in the final analysis a defendant’s criminal history category
is inadequate. Section 4A1.3 was drafted in classic catch-all terms for
the unusual but serious situation where the criminal history category
does not adequately reflect past criminal conduct or predict future
criminal behavior. The relatedness of the two bank robbery convic-
tions matters for the purposes of adding an additional criminal history
point under U.S.S.G. § 4A1.1(f). But nothing in the Sentencing
Guidelines prohibits the district court from considering the second
factually distinct but related conviction as a reason for upward depar-
ture under U.S.S.G. § 4A1.3.
This approach is consistent with this court’s principle that "the sen-
tencing guidelines should be applied as written" and that "[t]o effectu-
ate this principle, double counting is permissible under the sentencing
guidelines except where it is expressly prohibited." United States v.
10 UNITED STATES v. LAWRENCE
Wilson, 198 F.3d 467, 472 n.* (4th Cir. 1999) (internal quotation
marks and citations omitted). The defendant seeks to nullify the force
of section 4A1.3, but we see no indication that the Sentencing Com-
mission so intended. To the contrary, Lawrence seems just the kind
of defendant for whom this section was included.
The district court also found two other independent bases for treat-
ing Lawrence as a de facto career offender. First, Lawrence admitted
committing two other bank robberies on January 7, 1991 and January
14, 1991 for which he was never convicted. Lawrence does not con-
test his admission of these two unsentenced bank robberies. Second,
Lawrence pled and was convicted for third degree assault for striking
a Hawaii state prison guard on the head with a laundry iron and a
metal box on October 18, 1985. The district court stated that the
underlying facts of this assault conviction could satisfy assault sec-
ond, a felony under Hawaiian law. We need not rule on these alterna-
tive bases for the departure, as the district court’s treatment of the two
1991 bank robbery convictions was sufficient.
III.
The district court declared that it "never had before this court any
other defendant whose conduct in my opinion more clearly deserves
the departure based upon the inadequacy analysis which is allowed in
4A1.3 nor one who is more correctly labeled under the facts of the
case a de facto career offender." This judgment, and the carefully
detailed evidence substantiating the district court’s upward departure,
warrants affirming the decision to classify Lawrence as a de facto
career offender and to sentence him to a term of 262 months.
AFFIRMED