United States v. King ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4108
BRIAN P. KING, a/k/a Tony
DeAngelo,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
David A. Faber, District Judge.
(CR-96-88)
Submitted: November 25, 1997
Decided: December 17, 1997
Before MURNAGHAN and ERVIN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
Silas M. Preston, PRESTON & WEESE, L.C., Lewisburg, West Vir-
ginia, for Appellant. Rebecca A. Betts, United States Attorney, Susan
M. Arnold, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Brian P. King appeals the 78-month sentence he received after he
pled guilty to aiding and abetting bank fraud, 18 U.S.C. § 1344(1)
(1994), 18 U.S.C. § 2 (1994). He contends that the district court
abused its discretion by departing above criminal history category VI
based on pending charges, uncharged criminal conduct, and lenient
sentences he had received for past offenses. See U.S. Sentencing
Guidelines Manual § 4A1.3, p.s. (1995). He also argues that the dis-
trict court failed to explain adequately the extent of the departure
above category VI. We affirm in part and dismiss in part.
Between December 1995 and February 1996, King persuaded his
girlfriend, Teresa Ecrement, to open bank accounts in West Virginia
and Missouri. He then deposited checks written on the various
accounts and Ecrement's account at the West Virginia Air National
Guard Credit Union, and had Ecrement write checks on the accounts,
knowing there were insufficient funds to cover the checks. The check-
kiting scheme continued until the credit union began receiving dis-
honored checks. Ecrement lost her job and agreed to cooperate with
the Federal Bureau of Investigation. She then resumed her relation-
ship with King, however, and opened two more checking accounts in
Indiana and Missouri. Ecrement eventually informed authorities
where they might find King, and he was subsequently arrested. Dur-
ing this same period, King defrauded a jewelry store of over $56,000.
King's thirteen criminal history points placed him in category VI.
With an offense level of thirteen, King's guideline range was 33-41
months. At the first sentencing hearing, the district court resolved the
objections to the presentence report and then informed the parties that
it was considering an upward departure pursuant to§ 4A1.3. Sentenc-
ing was continued to permit King and the government to address the
issue. King had nine prior adult criminal convictions for writing
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insufficient funds, forging checks, cocaine trafficking, and escape, all
in California, as well as grand theft, uttering forged bills and instru-
ments, forgery, and defrauding an innkeeper in Florida, criminal
impersonation and bond violation (King absconded) in Colorado, and
reckless driving in Michigan. For most of these offenses, King
received probationary sentences or short prison sentences. At the time
of sentencing, he had three pending charges for driving on a sus-
pended license and writing an insufficient check at a charity auction
in Michigan. The presentence report also contained accounts obtained
from two women who had previous relationships with King. Both
reported that he involved them in writing bad checks, used their tele-
phones to run up huge bills, and threatened them. One of the women
had to declare bankruptcy after terminating her relationship with
King.
The district court determined that King's pending charges, unpro-
secuted criminal conduct, and prior lenient treatment in the courts
warranted an upward departure. The court noted that, in departing
above criminal history category VI, it was required to "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 appropriate to the case." USSG § 4A1.3. The
court departed to offense level nineteen, stating:
I believe that any sentencing range below this level would
be totally inappropriate in this case and would fail to satisfy
the statutory objectives of sentencing. I do not believe that
any sentence the court could impose at a lower level than
that would fulfill the obligations I have to satisfy the statu-
tory objectives of sentencing, so I have excluded all of the
levels below level 19.
King first argues that a departure was unwarranted. We review the
district court's decision to depart for abuse of discretion. See Koon v.
United States, 116 S. Ct. 2035 (1996). Under USSG § 4A1.3, an
upward departure is encouraged if a defendant's criminal history is
underrepresented. Both pending charges and prior similar conduct not
resulting in a conviction are explicitly mentioned as factors which can
support an upward departure. Here, the district court also considered
the lenient treatment King repeatedly received in the state courts for
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relatively serious offenses. On these facts, we find that the district
court did not abuse its discretion in deciding to depart. King incor-
rectly argues that the district court's consideration of similar
uncharged conduct detailed in the presentence report was improper.
See USSG § 1B1.4 (district court may consider any information con-
cerning background, character, and conduct of defendant in deciding
whether to depart).
King also contends that the district court arbitrarily decided on a
six-level departure and failed to explain adequately why none of the
intervening levels were sufficient. Moving to successively higher
offense levels is an approved method of departing above category VI.
See United States v. Cash, 983 F.2d 558, 561 & n.6 (4th Cir. 1992).
However, the district court should move to the next higher offense
level, and go on to a still higher offense level only after finding that
the next higher offense level is inadequate. See Cash, 983 F.2d at 561
n.7 (citing United States v. Rusher, 966 F.2d 868, 884 (4th Cir.
1992)). The court here did not make a specific finding concerning
each intervening offense level, but did explain that each lesser offense
level had been considered and found inadequate. We find that the
court sufficiently followed the dictates of Cash and Rusher, and that
remand for a more explicit statement is unnecessary. Moreover, we
find that the district court did not abuse its discretion in sentencing
King at the top of the new guideline range produced by the upward
departure.
Finally, King concedes that he waived his right to appeal his fine
under the terms of his plea agreement, but suggests that the $125,000
fine imposed was an abuse of discretion. King does not argue that the
waiver was invalid; consequently, we do not address the propriety of
the fine except to note that it is within the statutory maximum. See
18 U.S.C. § 1344 (1994).
The sentence is therefore affirmed. We dismiss that portion of the
appeal in which King challenges his fine. 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 IN PART, DISMISSED IN PART
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