United States v. Sloan , 117 F. App'x 869 ( 2004 )

Vacated by Supreme Court, April 25, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4297
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALAN TODD SLOAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-96)
Submitted: October 1, 2004 Decided: December 9, 2004
Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alan Todd Sloan pled guilty to bank robbery, 18 U.S.C.
§§ 2113(a), 2 (2000). The district court departed upward from the
guideline range pursuant to U.S. Sentencing Guidelines Manual
§ 4A1.3, p.s. (2003), and sentenced Sloan to a term of 188 months
imprisonment. Sloan appeals his sentence, arguing that Blakely v.
Washington, 124 S. Ct. 2531 (2004), applies to the district court’s
decision to depart upward and that § 4A1.3 is unconstitutional
under Blakely. He further contends that, if Blakely does not
apply, the district court abused its discretion in departing upward
and sentencing him as a de facto career offender. We affirm.
Sloan’s criminal history was replete with crimes of
violence. Between July 9 and September 24, 1992, Sloan committed
a total of nine robberies in Pennsylvania. He was convicted of
four robberies, three of which were consolidated for sentencing.*
Because all these offenses were treated by the probation officer as
part of a common scheme or plan, i.e., as related cases, USSG
§ 4A1.2, comment. (n.3), Sloan fortuitously did not qualify for
sentencing as a career offender under USSG § 4B1.1. See USSG
4B1.2(c).
Sloan received three criminal history points for his ten-
year sentence for bank robbery under USSG § 4A1.1(a), and one point
*
Five counts of bank robbery were dismissed under a plea
agreement.
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for each sentence imposed for the remaining three robberies. USSG
§ 4A1.1(f). Including the points awarded for other prior
sentences, Sloan had a total of nine criminal history points, which
placed him in category IV. The recommended guideline range was 77-
96 months.
At the sentencing hearing, Sloan’s attorney acknowledged
that an upward departure was appropriate under § 4A1.3. He
recommended a departure to category VI and a sentence of 125 months
imprisonment. The district court decided to depart upward in part
because it believed, mistakenly, that Sloan’s three sentences for
robberies that were consolidated for sentencing in July 1993
received no criminal history points because they were related
cases, when in fact each was awarded one point under USSG
§ 4A1.1(f).
The court noted that Application 3 to § 4A1.2 recognizes
that, in some cases, the definition of related cases may be overly
broad and may “result in a criminal history score that
underrepresents the seriousness of the defendant’s criminal history
and the danger that he presents to the public.” The court found
that this was true of Sloan’s three supposedly unscored crimes of
violence. The court found that Sloan was a de facto career
offender and therefore departed upward from category IV to category
VI and from offense level 24 to offense level 32. The court
imposed a sentence of 188 months.
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On appeal, Sloan first argues that his sentence must be
vacated under Blakely because the district court engaged in
unconstitutional fact finding when it departed upward, and that
§ 4A1.3 is unconstitutional under Blakely because it permits
judicial fact finding to increase the statutory maximum sentence.
Because we recently held that Blakely “does not affect the
operation of the federal sentencing guidelines,” United States v.
Hammoud, 381 F.3d 316, 2004 WL 2005622, at *28 (4th Cir. Sept. 8,
2004) (en banc), we conclude that neither of these contentions has
merit.
Alternatively, Sloan argues that, if Blakely does not
apply, the district court abused its discretion in departing by
treating him as a de facto career offender. A sentencing court may
depart from the guideline range only if the court finds an
aggravating or mitigating factor of a kind, or to a degree, not
adequately considered by the Sentencing Commission. 18 U.S.C.A.
§ 3553(b) (West Supp. 2004) (setting out general principles for
departures and special considerations for child crimes and sexual
offenses); Koon v. United States, 518 U.S. 81, 98 (1996). As of
April 30, 2003, the Prosecutorial Remedies and Tools Against the
Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub. L.
No. 108-21, 117 Stat. 650, 670 (amending 18 U.S.C. § 3742(e),
(e)(3)), requires a reviewing court to review certain departures de
novo. The appeals court must review de novo whether the district
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court failed to provide a written statement of its reasons for
departing, 18 U.S.C.A. § 3742(e)(3)(A) (West Supp. 2004), and
whether the departure was based on a factor that (1) does not
advance the objectives set forth in 18 U.S.C.A. § 3553(a)(2) (West
Supp. 2004), (2) is not authorized by § 3553(b), or (3) is not
justified by the facts of the case. 18 U.S.C.A.
§ 3742(e)(3)(B)(i)-(iii) (West Supp. 2004). If the departure is
justified, the appeals court must review the extent of the
departure deferentially. See United States v. Davis, 380 F.3d 183,
188 n.3 (4th Cir. 2004), petition for cert. filed, Sept. 15, 2004
(No. 04-6377); see also 18 U.S.C.A. § 3742(e)(3)(C) (West Supp.
2004).
An upward departure pursuant to § 4A1.3 is encouraged if
the court finds that the criminal history category does not
adequately represent the defendant’s past criminal conduct. The
district court’s determination that an encouraged factor is not
already accounted for in the guideline is reviewed de novo. United
States v. Rybicki, 96 F.3d 754, 757 (4th Cir. 1996) (citing Koon,
518 U.S. at 96).
In this case, although the district court mistakenly
stated that three of Sloan’s prior crimes of violence received no
criminal history points because they were related, when in fact
each of the 1992 hotel and store robberies was awarded one criminal
history point, the record amply supports the district court’s
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decision to depart. As Sloan concedes in his opening brief, he
would have been a career offender if there had been an intervening
arrest in his series of robberies in 1992, or if his 1985 burglary
conviction were not outside the applicable time period for
sentences of less than a year and a month, see USSG § 4A1.2(e)(2).
Moreover, Sloan would have been a career offender if he
had been prosecuted separately for any of the five bank robberies
he committed in 1992 for which charges were dismissed under his
plea agreement relating to the sixth bank robbery. United
States v. Harrison, 58 F.3d 115, 118 (4th Cir. 1995) (“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.”). Sloan’s criminal history included more than the two
crimes of violence necessary to qualify him for career offender
status. Therefore, we conclude that the district court did not
abuse its discretion in deciding to depart or in treating Sloan as
a de facto career offender.
We therefore affirm the sentence imposed by the district
court. We deny as moot the government’s motion to place this case
in abeyance for Hammoud, and we dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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