United States v. Schuler , 282 F. App'x 221 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4870
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GENE SCHULER,
Defendant - Appellant.
No. 07-4871
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GENE SCHULER,
Defendant - Appellant.
No. 07-4872
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GENE SCHULER,
Defendant - Appellant.
No. 07-4873
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GENE SCHULER,
Defendant - Appellant.
No. 07-4874
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GENE SCHULER,
Defendant - Appellant.
No. 07-4875
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
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v.
GENE SCHULER,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:06-cr-00775-TLW; 4:06-cr-01342-TLW; 4:07-cr-00221-TLW; 4:07-cr-
00222-TLW; 4:07-cr-00223-TLW; 4:07-cr-00230-TLW)
Submitted: February 29, 2008 Decided: June 18, 2008
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, William E. Day, II, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gene Schuler pled guilty to six counts of bank burglary,
18 U.S.C. § 2113(a) (2000), and was sentenced to concurrent terms
of 82 months imprisonment. The offenses were committed in South
Carolina, Georgia, and Alabama, and were transferred with Schuler’s
consent to the District of South Carolina for disposition. Schuler
appeals his sentence, contending that the district court erred in
departing above the advisory guideline range pursuant to U.S.
Sentencing Guidelines Manual (USSG) § 4A1.3, p.s. (2006). We
affirm.
Between April 11, 2006, and his arrest on July 11, 2006,
Schuler burglarized twenty-five banks. Schuler began this series
of burglaries while he was on supervised release, a week after he
finished serving a 63-month federal sentence for burglarizing eight
banks in Florida in 2000. In addition, he had previously served a
one-year federal sentence for burglarizing two banks in Florida in
1998, as well as a one-year state sentence for another bank
burglary committed the same year. In departing upward, the
district court considered both prior sentences that were not
counted in Schuler’s criminal history score because they were
outside the applicable time period, see USSG § 4A1.2(e), and the
fact that Schuler had been convicted and imprisoned twice before
for burglarizing banks, and upon release each time immediately
committed the same offense again.
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After United States v. Booker, 543 U.S. 220 (2005), a
sentence is reviewed for reasonableness. Gall v. United States,
128 S. Ct. 586, 597 (2007).
A district court may depart upward based on the
inadequacy of the defendant’s criminal history if “reliable
information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant
will commit other crimes . . . .” USSG § 4A1.3(a)(1).
Here, the court could properly consider, as a basis for
departure, outdated sentences that provided “evidence of similar,
or serious dissimilar, criminal conduct . . . .” USSG § 4A1.2,
comment. (n.8). Not all of Schuler’s early criminal conduct was of
this kind; however, he had three unscored sentences for grand theft
and two unscored sentences for retail theft. Moreover, Application
Note 2(B) to § 4A1.3 states that “the court should consider that
the nature of the prior offenses rather than simply their number is
often more indicative of the seriousness of the defendant’s
criminal record.” In this regard, the court properly considered
Schuler’s repeated burglaries of banks and his immediate resumption
of the same criminal conduct as soon as he was released from
custody for two prior convictions for bank burglary. Notably,
Schuler committed an increasing number of burglaries after each
prior sentence. We conclude that the court’s decision to depart
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was not unreasonable, particularly in light of the Supreme Court’s
recent holding in Gall, 128 S. Ct. at 597, directing appellate
courts to review sentences outside the advisory guidelines range
for abuse of discretion only. In addition, the extent of the
departure was reasonable. See United States v. Evans, No. 06-4789,
2008 WL 2174237, at *7 (4th Cir. May 27, 2008).
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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