United States v. Brown ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4281
DARYL L. BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-95-95)
Submitted: April 29, 1997
Decided: May 19, 1997
Before MURNAGHAN and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Aubrey F. Hammond, Jr., Richmond, Virginia, for Appellant. Helen
F. Fahey, United States Attorney, M. Hannah Lauck, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Daryl L. Brown appeals his 63-month sentence imposed pursuant
to his conviction for possession of stolen firearms, 18 U.S.C. § 922(j)
(1994). He now appeals, arguing that the district court should not
have departed upward in imposing his sentence. Finding no error, we
affirm.
Brown and others broke into a sporting goods store in Petersburg,
Virginia, and stole seven guns. Brown's presentence report stated that
his offense level was 14 and his criminal history category was V,
resulting in a guideline range of 33-41 months imprisonment. The
probation officer recommended that the district court consider an
upward departure based on the inadequacy of Brown's criminal his-
tory category. See USSG § 4A1.3, p.s. 1 The report stated that on May
28, 1992, Brown was sentenced in state court pursuant to twenty juve-
nile convictions, fourteen of which were felonies. Under USSG
§ 4A1.2(a)(2), he received only two criminal history points for these
twenty crimes because the offenses were considered"related."2
The United States moved for an upward departure from the guide-
line range because the criminal history category reflected neither the
seriousness of Brown's past criminal conduct nor the likelihood of his
committing other crimes. At sentencing, Brown opposed the motion,
arguing that most of his prior convictions occurred when he was a
juvenile, that he was the only one of the robbers who was charged
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2 The probation officer's conclusion that the offenses were related is
questionable. Nothing in the materials before us reveals that the twenty
crimes were factually related, and there is no formal order showing that
the matters were consolidated. See United States v. Allen, 50 F.3d 294,
297-98 (4th Cir.), cert. denied, ___ U.S. ___, 63 USLW 3907 (U.S. June
26, 1995). The United States did not object to the finding that the
offenses were related under USSG § 4A1.2. However, there was no plain
error because, with criminal history points properly assessed for the
crimes, the district court could have departed upward.
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with a federal offense, and that his record included no convictions for
crimes of violence.
The district court granted the motion for upward departure. The
court found that Brown's criminal history category understated the
seriousness, depth, and breadth of Brown's criminal record. Further,
had Brown not been sentenced for twenty offenses on one day, he
would have been assessed far more criminal history points. The court
noted that Brown:
has been given chance after chance and has not taken advan-
tage of it, has demonstrated that, in fact, almost immediately
after being released from confinement willingness to com-
mit crime. And the crimes are . . . progressively more seri-
ous.
The court concluded that the upward departure was warranted
because the criminal history category did not adequately reflect the
seriousness of Brown's past criminal conduct or the likelihood that he
would commit future crimes. The court departed upward to Criminal
History Category VI and offense level 19 and sentenced him at the
lowest end of the resulting guideline range, or 63 months. See United
States v. Cash, 983 F.2d 558, 561-62 & nn.6-7 (4th Cir. 1992).
Brown argues on appeal that because he was not assessed criminal
history points under USSG § 4A1.2 for each of the offenses for which
he was sentenced on May 28, 1992, the district court erred when it
considered those sentences in departing upward under USSG § 4A1.3.
Brown failed to raise this argument in the district court, and he there-
fore may not raise it on appeal absent plain error. See United States
v. Henoud, 81 F.3d 484, 487 n.8 (4th Cir. 1996).
Under USSG § 4A1.3, a district court is not precluded from consid-
ering offenses that are deemed "related" under USSG § 4A1.2 when
deciding whether a departure is warranted. We recently stated that
USSG § 4A1.3 "is designed to deal with defendants who possess an
`extensive record' that is not adequately reflected by their Criminal
History Category, or those whose criminal background shows them to
`pose a greater risk of serious recidivism.'" United States v. Blake, 81
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F.3d 498, 504 (4th Cir. 1996) (quoting USSG § 4A1.3, comment.
(backg'd)).
In the subject case, the district court did not clearly err in determin-
ing that criminal history category V did not adequately reflect
Brown's record or the likelihood that he would commit future crimes.
See United States v. Hummer, 916 F.2d 186, 192 (4th Cir. 1990).
Brown was only nineteen when he committed the instant offense in
1995. His extensive criminal record reveals numerous convictions
dating back to 1987. As the district court found, the serious nature of
his offenses has increased with time, and his various punishments
have not had their desired deterrent effect. The departure above cate-
gory VI was not an abuse of discretion. See United States v. Cash,
983 F.2d at 561-62 & nn.6, 7.
We accordingly affirm the sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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