United States v. Shockey ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-50685
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVE RICHARD SHOCKEY,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-94-CR-67-4)
April 9, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Steve Richard Shockey, federal prisoner #60947-080, appeals
his sentence following a guilty plea for possession with intent to
distribute cocaine in violation 18 U.S.C. § 841(a)(1) and for using
and carrying a firearm during and in relation to a drug trafficking
offense in violation of 18 U.S.C. § 924(c).
Shockey contends that the factual basis was inadequate to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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support his guilty-plea conviction for carrying a firearm in
relation to a drug-trafficking crime. Although Shockey does not
dispute that he “carried” the firearm, he argues that his carrying
of the firearm was not “in relation to” the underlying drug
trafficking offense. According to the facts presented in the plea
agreement and at the plea hearing, officers observed that when
Shockey was leaving his apartment, after arranging the drug
transaction over the telephone, he was holding an object in his
hand, concealed under his jacket. The officers then executed an
existing warrant for Shockey’s arrest and discovered that the
object Shockey had been holding under his jacket was a firearm;
Shockey was in possession of the narcotics at that time. The
district court’s finding that the weapon was carried in relation to
Shockey’s narcotics offense, rather than simply coincidental to it,
was, therefore, not clearly erroneous. See United States v.
Tolliver, 116 F.3d 120, 125-26 (5th Cir.), cert. denied, 118 S. Ct.
324 (1997); United States v. Wilson, 884 F.2d 174, 176-77 (5th Cir.
1989).
Shockey also argues that the district court erred in departing
upward from the sentencing guidelines based on his criminal history
score. Shockey’s presentence investigation report (PSR), which the
district court adopted, placed him at an offense level of 8 and
criminal history category VI, yielding an imprisonment range of 18
to 24 months. Pursuant to U.S.S.G. § 4A1.3, the district court
then upwardly departed from the guideline range and sentenced
Shockey to a term of 46 months. Shockey contends that the district
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court unreasonably based the departure on his prior convictions,
which he characterizes as primarily property and drug or drug
paraphernalia possession cases and not violent or other “major”
offenses. Shockey also argues that the district court failed to
evaluate and state for the record the appropriateness of each level
above which it departed before arriving at its sentence, as
required by United States v. Lambert, 984 F.2d 658 (5th Cir. 1993)
(en banc).
We generally review the district court’s decision to depart
upward for abuse of discretion. See United States v. Ashburn, 38
F.3d 803, 809 (5th Cir. 1994) (en banc), cert. denied, 115 S. Ct.
1969 (1995). We affirm a departure from the guidelines if the
district court offers acceptable reasons for the departure and the
departure is reasonable. See id. However, a defendant who seeks
to appeal his sentence must have objected to his PSR or at his
sentencing hearing in order to preserve the alleged error for
appeal. See United States v. McCaskey, 9 F.3d 368, 376 (5th Cir.
1993), cert. denied, 114 S. Ct. 1565 (1994). A failure to object
limits us to plain error review. See United States v. Ravitch, 128
F.3d 865, 869 (5th Cir. 1997) (per curiam).
The government maintains that Shockey failed to object to the
upward departure. Although Shockey concedes that he did not file
objections to the PSR, he claims that he objected at his sentencing
hearing when, prior to its imposition of sentence, the court asked
Shockey and his attorney if they had any comments or objections
regarding the PSR. Shockey replied in the negative, and his
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attorney said that they “did not file objections” to the PSR but
that he “would like to make a few observations about the report.”
He asked the court to consider the following in reviewing the
recommendations of the probation officer:
[Shockey’s] criminal record, arrest and conviction record
in the past takes several pages, but I would respectfully
point out to the court that virtually every one of those
offense relates to the original mistake that Mr. Shockey
made which is becoming a drug addict or a drug user. The
conviction record does not indicate a record of violent
crimes against the person but crimes that are directly
related to drug use and drug possession, which has been
a continuing problem. Mr. Shockey has repeatedly
expressed his desire and interest in entering a drug
rehabilitation program, [and] hopes to do that as soon as
possible.
At no other time did either Shockey or his attorney comment on
Shockey’s criminal history. Later in the sentencing hearing, the
court expressed concern about Shockey’s criminal history as
reflected in the PSR and, after comments by the prosecutor and
probation officer, imposed sentence, including the upward
departure. Neither Shockey nor his attorney objected to the
sentence; in fact, neither of them said anything after the court
imposed the sentence.
For an objection to be adequate, a party must raise the
objection with sufficient specificity so that the district court is
alerted to the issue before it. See United States v. Richardson,
87 F.3d 706, 710 (5th Cir. 1996) (per curiam). “A party must raise
a claim of error with the district court in such a manner so that
the district court may correct itself and thus, obviate the need
for our review.” United States v. Krout, 66 F.3d 1420, 1434 (5th
Cir. 1995) (internal quotations and citation omitted). An argument
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for leniency does not constitute an objection for purposes of
preserving error for appeal. See United States v. McDowell, 109
F.3d 214, 216 (5th Cir. 1997) (holding that the defendant’s plea
for leniency was inadequate to preserve the issue of upward
departure for appeal because it did not directly address the
issue); Krout, 66 F.3d at 1434 (holding that defendant’s request at
sentencing that the district court reconsider its decision to run
two sentences concurrently was a simple plea for leniency and that
the corresponding objection was insufficient to preserve the issue
for appeal because it offered no particular legal basis). Here,
the attorney’s comments, which merely set forth reasons for
leniency and did not offer any relevant legal basis for objection,
were not sufficiently specific to inform the court that Shockey
objected to the district court’s reasons for departing, to its
method of calculating the departure, or even to the extent of the
departure. Thus, we are limited to reviewing for plain error.
In order to show plain error, the appellant must show that (1)
there was an error, (2) the error was clear or obvious, and (3) the
error affected the substantial rights of the defendant. See United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc),
cert. denied, 115 S. Ct. 1266 (1995). While it is error to depart
from the guidelines, it is plain error only if a court on remand,
after correctly applying the sentencing guidelines, could not
reinstate the same sentence. See Ravitch, 128 F.3d at 872
(affirming the defendant’s sentence even though the district
court’s method of departing may have been incorrect because the
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district court could have imposed the same sentence if it had
properly applied the guidelines); McDowell, 109 F.3d at 219
(concluding that although the district court erred in relying on an
inappropriate reason for departing upward, the sentencing error was
harmless because the departure was valid for another stated reason
and the court could have imposed the same sentence had it relied
only on that proper reason).
Here, the district court concluded that Shockey’s criminal
history score of 25 points, which the court considered to be
“substantially greater than the average category score,” and the
nature and extent of Shockey’s criminal history, including “a
number of felony forgery passing convictions, convictions of stolen
property, grand theft, possession of controlled substances,
carrying concealed weapons and escape,” supported a departure for
an inadequate criminal history score. Upon review of the record,
we hold that the imposed departure from the guidelines and the
extent of the departure were reasonable and, therefore, did not
amount to plain error. See Ashburn, 38 F.3d at 809 (upholding a
sentence that was more than twice the recommended guideline range
because the § 4A1.3 departure was reasonable); Pennington, 9 F.3d
at 1118 (reasoning that the defendant’s history of crime, which
resulted in a criminal history score of 26 points, although
nonviolent, demonstrated a disrespect for the law and justified an
upward departure); United States v. Chappell, 6 F.3d 1095, 1102
(5th Cir. 1993) (upholding district court’s decision to depart
upwardly because the defendant’s criminal history score of 25 far
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exceeded the minimum score of category VI and did not take into
account several stale offenses).
With regard to the method of departure, we note that “when a
district court intends to depart above Category VI, it should stay
within the guidelines by considering sentencing ranges for higher
base offense levels.” Lambert, 984 F.2d at 663 (citing U.S.S.G. §
4A1.3). The application of this requirement need not be
ritualistic or mechanical. See, e.g., United States v.
Daughenbaugh, 49 F.3d 171, 175 (5th Cir. 1995), cert. denied, 116
S. Ct. 258 (1995) (holding that the district court’s explanation
was sufficient to satisfy Lambert’s requirements, where it had
“considered all of the other offense levels up to a level 35" and
concluded that level of sentencing was appropriate). However, even
if the departure is reasonable, it is error for the court to
calculate upward departures beyond category VI without consulting
higher base offense levels and thus staying within the guidelines.
See United States v. Pennington, 9 F.3d 1116, 1119 (5th Cir. 1993)
(remanding for resentencing although the departure was reasonable
because the district court used the wrong method of departure,
apparently relying on the government’s suggested, imaginary higher
criminal history categories rather than on the guideline’s higher
base offense levels). The court in the instant case, like the
court in Pennington, completely failed to mention base offense
levels and appeared to erroneously extrapolate criminal history
categories outside the guidelines to account for Shockey’s
excessive criminal history points. We conclude, however, that
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although the court’s method of departure was inappropriate, it
could arrive at the same sentence that it imposed if the district
court were to apply the method required by Lambert. See Ravitch,
128 F.3d at 872. Shockey has therefore failed to show plain error
with respect to the method of departure. We accordingly affirm the
sentence imposed by the district court.
AFFIRMED.
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