United States v. Reynolds ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4145
SHAWN MICHAEL REYNOLDS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Rockingham.
N. Carlton Tilley, Jr., District Judge.
(CR-95-306)
Submitted: June 30, 1997
Decided: July 25, 1997
Before HALL, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Scott P. Mebane, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Shawn Michael Reynolds appeals the 27-month sentence he
received after he pled guilty to three counts of passing and uttering
counterfeit Federal Reserve notes, 18 U.S.C. § 472 (1994). He con-
tends that the district court abused its discretion by departing above
criminal history category VI pursuant to United States Sentencing
Commission, Guidelines Manual, § 4A1.3, p.s. (Nov. 1996), and also
failed to explain the extent of the departure. We affirm.
Reynolds' 25 criminal history points placed him in category VI.
With an offense level of 7, his guideline range was 15-21 months. At
his first sentencing hearing, the district court informed Reynolds that
it was considering an upward departure because of the seriousness of
his prior record. Sentencing was continued to allow the parties to
address the issue. Reynolds had numerous convictions for breaking
and entering and larceny, a conviction for burglary, one for communi-
cating threats and assault, and several minor drug convictions. The
probation officer noted in the revised presentence report that an
upward departure might be warranted and suggested that the depar-
ture might be structured by adding one offense level for each addi-
tional three criminal history points that Reynolds had amassed.
Departing above category VI by moving to successively higher
offense levels is a method which has been approved by this court. See
United States v. Cash, 983 F.2d 558, 561 & n.6 (4th Cir. 1992). At
the second sentencing hearing, the government recommended an
upward departure. Ultimately, the court departed upward four offense
levels, following the probation officer's suggestion, and imposed sen-
tence at the bottom of the new guideline range of 27-33 months.
Reynolds first argues that the departure was unjustified. We review
the district court's decision to depart for abuse of discretion. Koon v.
United States, ___ U.S. ___, 64 U.S.L.W. 4512 (U.S. June 13, 1996)
(Nos. 94-1664/8842). Under USSG § 4A1.3, departure is encouraged
if the defendant's criminal history is over- or underrepresented. The
court found that category VI was not adequate because of the fre-
quency and seriousness of Reynolds' prior criminal conduct. We
agree.
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Reynolds also contends that the district court failed to consider
each successively higher offense level and make specific findings
before proceeding to the next higher one. See Cash, 983 F.2d at 561-
63; United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). While
the court did not make a specific finding concerning each higher
offense level, it found that the probation officer's suggested method
of departure was the right way to arrive at an appropriate guideline
range "following the Fourth Circuit's incremental analysis in depart-
ing upward in this kind of case." The court's comments indicate that
its intention was to comply with the dictates of Cash and Rusher, and
that it considered the intervening offense levels inadequate to account
for Reynolds' past criminal conduct. We find that remand for a more
explicit statement from the court is unnecessary.
The sentence is therefore affirmed. 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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