United States v. Eldridge ( 1998 )

Filed: July 14, 1998
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-4734
(CR-91-51, CR-96-26, CR-97-25)
United States of America,
Plaintiff - Appellee,
versus
George Eldridge, etc.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed July 2, 1998, as follows:
On the cover page, section 3, line 3 -- "James P. Jones, Dis-
trict Judge" is corrected to read "Samuel G. Wilson, Chief District
Judge."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4734
GEORGE ELDRIDGE, a/k/a George P.
Ison,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Samuel G. Wilson, Chief District Judge.
(CR-95-51, CR-96-26, CR-97-25)
Submitted: June 16, 1998
Decided: July 2, 1998
Before ERVIN and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
C. Randall Lowe, TATE, LOWE & ROWLETT, P.C., Abingdon,
Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
S. Randall Ramseyer, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
George Eldridge appeals the 175-month sentence he received after
he pled guilty to fraud offenses charged in three separate indictments.1
He challenges the district court's calculation of his criminal history
score and its decision to depart upward on the ground that criminal
history category VI did not adequately reflect his criminal record. See
U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1995). He also con-
tends that the district court clearly erred in determining the amount of
loss, see USSG § 2F1.1, and in finding that he obstructed justice, see
USSG § 3C1.1, and that he failed to accept responsibility for his
offenses, see USSG § 3E1.1. Last, Eldridge argues that the district
court judge erred in refusing to recuse himself. We affirm.
Eldridge's convictions resulted from his obtaining a post office box
in a false name, obtaining a Visa card in a false name, obtaining a job
as a security guard in a false name, completing an Immigration and
Naturalization Service (INS) form in a false name, and possessing
two stolen checks. Eldridge used the name "Melvin Wade White" to
obtain the Visa card and to gain employment with a security services
firm; he used that name on the INS form, which was part of the docu-
mentation he supplied to the securities firm. The real Melvin Wade
White had once been represented by Eldridge's wife, a lawyer.
_________________________________________________________________
1 In No. 95-51, Eldridge pled guilty to Count One, making false state-
ments in violation of 18 U.S.C. § 1001 (1994). In No. 96-26, Eldridge
pled guilty to Counts Four and Six, fraudulent use of Social Security
numbers in violation of 42 U.S.C. § 408(a)(7) (1994), and Count Ten,
making false statements. In No. 97-25 (transferred from the Eastern Dis-
trict of Tennessee), Eldridge pled guilty to Count One, theft or receipt of
stolen mail in violation of 18 U.S.C. § 1708 (1994). Pursuant to the plea
agreement, fourteen additional counts were dismissed.
2
All five counts were placed in a single group for calculation of the
base offense level. At the sentencing hearing, the district court found
that Eldridge had obstructed justice by soliciting false statements
from fellow inmates concerning his involvement with a shank (home-
made knife) while he was in custody following his arrest. The court
also increased the offense level by including in the amount of loss two
stolen but uncashed checks, the amount owed on a fraudulently
obtained credit card, and Eldridge's earnings from his employment as
a security guard.
I. Recusal
Before he entered a guilty plea, Eldridge asked the judge to recuse
himself because his brothers and sister-in-law previously had
appeared before the judge on criminal charges. The judge denied the
recusal motion on the ground that he had no personal bias against
Eldridge or his family. Eldridge argues on appeal that the judge dem-
onstrated bias by imposing a harsh sentence and by preparing, before
the sentencing hearing, a written explanation for the upward depar-
ture. A federal judge must "disqualify himself in any proceeding in
which his impartiality might reasonably be questioned." 28 U.S.C.
§ 455(a) (1994). However, the fact that the judge has previously pre-
sided over cases involving a defendant's relatives does not, absent
extraordinary facts, give rise to an appearance of partiality. See
United States v. Morris, 988 F.2d 1335, 1337 (4th Cir. 1993). Nor
does the court's preparation of a statement of grounds for a possible
departure show that it was prejudiced and predisposed against
Eldridge, as he suggests.2
II. Upward Departure
Eldridge's principal dispute on appeal is with the district court's
decision to depart above criminal history category VI and with the
extent of the departure. Eldridge had 38 criminal history points. With
a final offense level of 12, his guideline range was 30-37 months.
However, because Eldridge had a lengthy criminal record, the district
court departed upward under USSG § 4A1.3. To structure the depar-
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2 The same judge presided over the trial of Eldridge's wife, who was
charged as a co-defendant, and sentenced her to probation.
3
ture, the court moved to successively higher offense levels to account
for the 25 excess criminal history points Eldridge had accumulated
above the number necessary to place him in category VI--a proce-
dure we have approved. See United States v. Harrison, 58 F.3d 115,
118 (4th Cir. 1995); United States v. Cash, 983 F.2d 558, 561 n.6 (4th
Cir. 1992). The court also considered the fifth sentence for which
Eldridge received one criminal history point under USSG § 4A1.1(c),3
eight points that were not awarded for five sentences imposed outside
the applicable time period, see USSG § 4A1.2(e), and fourteen crimi-
nal history points that were not awarded for other criminal conduct
committed by Eldridge.4 The court then moved to increasingly higher
offense levels, guided by these "phantom" points, and finally deter-
mined that offense level 28 and the resulting guideline range of 140-
175 months adequately represented the seriousness of Eldridge's
criminal record.
We review the district court's decision to depart upward from the
guideline range for an abuse of discretion. See Koon v. United States,
518 U.S. 81, 100 (1996); United States v. Rybicki, 96 F.3d 754, 756-
57 (4th Cir. 1996). Under USSG § 4A1.3, an inadequate criminal his-
tory category is an encouraged ground for departure. When an
encouraged factor is present, the district court must decide whether it
is adequately accounted for in the applicable guideline range. This
decision is reviewed de novo. See Rybicki, 96 F.3d at 758. Eldridge
argues on appeal that the district court erred in considering sentences
too old to be counted and conduct for which he had never been con-
victed. However, the court based its departure on Eldridge's unusual
lifelong recidivism and the likelihood that he would commit further
crimes in the future, finding that "every hour he is released will be an
hour that another crime will be committed." The court considered and
"assessed" points for Eldridge's old sentences and other, unchallenged
criminal conduct merely as a means of structuring the departure. We
find that the court did not abuse its discretion in deciding that cate-
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3 This criminal history point did not count toward the criminal history
score because no more than 4 criminal history points may be counted
under USSG § 4A1.1(c).
4 These were offenses for which Eldridge had never been charged but
which were documented in the presentence report.
4
gory VI did not adequately reflect Eldridge's past criminal conduct or
in determining the extent of the departure.
III. Criminal History Score
Next, Eldridge makes numerous claims of error in the determina-
tion of his criminal history. None of his claims have merit. He argues
first that the sentences in paragraphs 107 and 108 of the presentence
report did not extend into the fifteen-year period preceding his com-
mencement of the instant offense. However, Eldridge pled guilty to
offenses involving fraudulent use of Social Security numbers which
began in January 1994. The fifteen-year period thus began in January
1979. Eldridge was paroled from one sentence in August 1979 and
sentenced on the other charge in March 1979. Points were properly
awarded for both sentences.
Eldridge argues that points were incorrectly awarded for the prior
Tennessee sentences in paragraphs 108 and 114 of the presentence
report because the official records did not show that he was repre-
sented by counsel. See Custis v. United States, 511 U.S. 485 (1994)
(defendant may challenge validity of prior conviction on ground that
it was obtained in violation of right to counsel). The probation offi-
cer's response to Eldridge's written objection noted that since June
1977 defendants in Tennessee must be advised of their right to coun-
sel and counsel must be appointed for indigent defendants who desire
representation. Eldridge provided no evidence at sentencing that he
actually lacked representation in connection with the two challenged
convictions. Therefore, the district court did not err in overruling his
objection and awarding points for the sentences.
Eldridge objects that a Tennessee sentence in paragraph 117 of the
presentence report should not be counted because it was made concur-
rent with two Kentucky sentences set out in paragraphs 115 and 116.
He made the same claim with respect to the Virginia sentences in
paragraphs 119, 123, and 124, which were concurrent with another
Virginia sentence set out in paragraph 121. Eldridge argues that
receiving a sentence which is made concurrent with another sentence
is the same as receiving a suspended sentence and that only one point
should have been awarded for each of the sentences in question under
USSG § 4A1.1(c). Eldridge offered no authority for this position and
5
offers none on appeal. As none of the sentences were suspended, the
court did not err in awarding more than one criminal history point for
each of them.
Eldridge disputes the two points he received under USSG
§ 4A1.1(d) for committing the instant offense while under a criminal
justice sentence. In December 1994, Eldridge was convicted of bur-
glary, theft, forgery, and possession of marijuana for resale, and he
received suspended two-year sentences on all counts. The suspension
was conditioned upon his payment of costs and good behavior.
Eldridge objected that the sentence of good behavior was not a sen-
tence of probation and should not result in two extra criminal history
points, but the district court found that a sentence of good behavior
is the equivalent of a sentence of unsupervised probation. Unsuper-
vised probation is considered a "criminal justice sentence" for pur-
poses of USSG § 4A1.1(d). See USSG § 4A1.1, comment. (n.4). We
therefore find that the district court did not err in finding that the two
points were properly assessed.
Eldridge's last claim concerning his criminal history calculation is
that the district court erred in "assigning" one point for the sentence
set out in paragraph 127 of the presentence report as part of the depar-
ture when the probation officer already had awarded one point for that
sentence. In fact, no double counting occurred because the sentence
in paragraph 127 was the fifth sentence to receive one criminal his-
tory point under USSG § 4A1.1(c) and was not counted in the crimi-
nal history score. See USSG § 4A1.1(c) (maximum of four points
may be counted under this item).
IV. Loss
The district court calculated the loss resulting from Eldridge's
fraud offenses as $2,763.84. This included $928.15 he owed on a Visa
card fraudulently obtained under the name Melvin Wade White and
the value of the two stolen checks. The court also counted, at the gov-
ernment's urging, $3500 Eldridge earned while working as a security
guard. Eldridge objected to inclusion of the checks because he had not
cashed them and to inclusion of the amount he owed on the Visa card
on the ground that the bill remained unpaid only because the bank
6
stopped sending him a statement after criminal charges were brought
against him. However, he made no argument about loss at sentencing.
Eldridge contends on appeal that the court clearly erred in deter-
mining the loss, which resulted in a two-level enhancement under
USSG § 2F1.1. See United States v. Chatterji, 46 F.3d 1336, 1340
(4th Cir. 1995) (standard of review). In determining fraud loss, each
case is decided on its own facts. See United States v. Mancuso, 42
F.3d 836, 849 (4th Cir. 1994). We find that the stolen checks were
properly included as an intended loss. See USSG § 2F1.1, comment.
(n.7). And even if Eldridge intended to pay the $928 debt he incurred
on the Visa card, that amount was properly treated as a loss because
Eldridge induced the bank to "unknowingly subject itself to a signifi-
cant and unappetizing risk," United States v. Baum, 974 F.2d 496, 499
(4th Cir. 1992), when it issued the card to him under a false identity.
Moreover, it appears that he had no legitimate income with which to
pay the amount owed. Similarly, while Eldridge put in the time for
which he was paid by the security services firm, he had induced the
firm to hire him under false pretenses. Thus, Eldridge did not provide
the honest service the firm was paying for and, as a consequence of
hiring him, the firm lost its contract to provide security at the motel
where he worked. Consequently, the wages he was paid were properly
treated as part of the loss.
V. Obstruction of Justice
While he was in custody following his arrest, Eldridge allegedly
helped to make and possessed a shank (a home-made knife) and
threatened to use it against the Assistant United States Attorney who
prosecuted him. At the sentencing hearing, the government asked for
an obstruction of justice adjustment. Eldridge subpoenaed two
inmates who were incarcerated with him, Douglas Dunford and
Michael VanDusen, but after talking with them Eldridge's attorney
declined to call them as witnesses. They testified for the government
that Eldridge had asked them to make false statements absolving him
from any connection with the shank found in his cell. The district
court made no finding as to whether Eldridge made or possessed the
shank, but found that he had obstructed justice by soliciting false
statements from fellow inmates. See USSG § 3C1.1, comment.
(n.3(b), (f)). The court did not clearly err in so finding. Therefore,
7
Eldridge was not entitled to an adjustment for acceptance of responsi-
bility even though he admitted the conduct underlying the charges to
which he pled guilty. See USSG § 3E1.1, comment. (n.4) (conduct
resulting in obstruction of justice adjustment ordinarily indicates
defendant has not accepted responsibility).
For the reasons discussed, the sentence is affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
8