United States v. Joseph ( 1995 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20202
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHNATH JOSEPH,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(CA-H-94-678)
November 17, 1995
Before THORNBERRY, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant, Johnath Joseph, appeals his resentencing by the district court. 18
U.S.C. § 3582(c)(2). We affirm.
Background
Joseph was convicted by a jury of possession of a firearm by a felon and on August
24, 1990, was sentenced by the court to thirty years confinement, five years supervised
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
release, and a $50.00 mandatory special assessment. The conviction and sentence were
affirmed. United States v. Joseph, 940 F.2d 655 (5th Cir. 1991). Joseph filed a motion
alleging his sentence should be corrected due to retroactive application of an amendment
to the career offender guidelines, and urging ineffective assistance of counsel for failing
to advise him of the applicable law and failing to object at sentencing to his enhancement
as a career offender. Following an evidentiary hearing, the district court followed the
magistrate judge's recommendation and denied relief on one complaint of ineffective
assistance, and granted the government's motion for summary judgment on the other. 1
After receiving a supplemental presentence investigation report ("PSR") the district court
granted relief on the guideline amendment and resentenced Joseph to 327 months
imprisonment, with the balance of the sentence remaining the same.
Discussion
Joseph first complains that he was not given adequate notice on resentencing of
the district court's intent to upwardly depart from the applicable guideline range. The
record reflects the district court decided a departure was warranted because the criminal
history category did not adequately reflect his violent past, and the likelihood was great
that he would commit future violent crimes. The only objection raised to the upward
departure was a "violation of the ex post facto clause since the Court did not consider
these matters when it first sentenced him. It should now be limited by an earlier
determination." This objection mentioned nothing about notice. Therefore, since this
complaint was not raised in the district court, in order to prevail Joseph must show this
court's failure to consider it would result in manifest injustice. Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991).
1
Joseph has not raised on appeal his ineffective assistance
of counsel claims.
2
The district court may upwardly depart on a ground not identified as a reason for
departure either in the PSR or otherwise if the parties are given reasonable notice as
required by Fed. R. Crim. P. 32. United States v. Bachynsky, 949 F.2d 722, 733 (5th Cir.
1991) (appeal following remand from en banc court). Here, in response to the
government's written objections, the probation officer in an addendum to the Supplemental
PSR, deferred to the district court on the matter of an upward departure. Although the
specific grounds for upwardly departing were not given in the PSR addendum, this notation
should have provided adequate notice that the district court could consider such a
departure. Joseph has not shown how failure to consider this issue would result in
manifest injustice.
Joseph next complains that the district court erred because it failed to give
acceptable reasons justifying its upward departure. Joseph argues that the reason given,
namely that his criminal history was understated, was insufficient to justify the departure.
The district court must offer acceptable reasons for the departure. United States
v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc). The record reveals that, after
remarking on Joseph's extensive prior criminal record, the district court articulated the
following reasons for its upward departure:
I conclude that given the seriousness of the Defendant's prior conduct
that was not included in his Criminal History Category, and his long and
violent criminal history, that there is a likelihood that he will commit future
crimes and that a Criminal History Category of V inadequately accounts for
both his past criminal history and the likelihood that he will commit future
crimes, and I will depart upward[.]
Inadequacy of a defendant's criminal history category and the likelihood that he
would commit other crimes are acceptable reasons for an upward departure. See U.S.S.G.
§ 4A1.3. p.s.; United States v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993). The district
court did not err in upwardly departing from the guideline range. Lambert, 984 F.2d at 663.
Finally, Joseph argues that the district committed "double counting" by increasing
his base offense level by two levels for possessing a firearm in connection with a drug
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offense when the offense for which he was convicted already included such consideration.
This complaint is foreclosed by United States v.Segler, 37 F.3d 1131, 1135 (5th Cir. 1994)
(no double jeopardy violation resulted when defendant assessed two-level increase under
U.S.S.G. § 2D1.1(b)(1) for possessing firearm while manufacturing methamphetamine and
sentenced for being felon in possession of firearm). Joseph does not dispute that the
firearm he possessed was connected to the offense committed. The district court did not
err by increasing his offense level after finding that he possessed the firearm during the
commission of a drug offense.
AFFIRMED.
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