United States v. Angle, Ralph W. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3670
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RALPH WAYNE ANGLE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 98 CR 37—Rudy Lozano, Judge.
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ARGUED SEPTEMBER 17, 2002—DECIDED JANUARY 10, 2003
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Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Ralph Wayne Angle was con-
victed of receiving and possessing child pornography and
using interstate commerce to entice a child under 18 years
old to engage in a sexual act. See 18 U.S.C. §§ 2252(a),
2422(b). On appeal this court affirmed the conviction but
vacated his sentence. See United States v. Angle, 234 F.3d
326, 347 (7th Cir. 2000) (“Angle I”). On remand, the district
court sentenced Angle to 325 months, finding that he was
likely to repeat his crimes and was more comparable to
a career criminal due to his past history. Angle appeals. Be-
cause the district court did not make sufficient reliabil-
ity findings and did not explain why Angle was more com-
parable to a career criminal than any other criminal, we
vacate the sentence and remand for resentencing.
2 No. 01-3670
I. BACKGROUND
Angle was first sentenced to 325 months1 for the three
counts related to child pornography and solicitation in
1999. When the district court initially sentenced Angle, it
imposed several enhancements and an upward departure
to Angle’s baseline sentence.2 See Angle I, 234 F.3d at
333, 344-46. The district court reasoned that criminal his-
tory category II did not adequately reflect the seriousness
of Angle’s criminal behavior and there was a likelihood that
he would commit further crimes. Id. at 333. Angle appealed.
In Angle I, we vacated the sentence for receiving child
pornography and remanded for resentencing, finding
that the district court neglected to explain why Angle’s
criminal history was more comparable to the criminal
histories found in a higher category than category II. Id.
at 344. On remand, the district court imposed a five-level
upward departure without ruling on the reliability of
uncorroborated molestation allegations and did not ex-
plain why Angle’s criminal history was more comparable
to category VI, a career criminal.3 Accordingly, we vacate
and remand for resentencing.
1
The district court sentenced Angle to concurrent prison terms
of 325 months on Count I (receiving child pornography) and 120
months on each of Counts II (possessing child pornography) and
III (soliciting a minor).
2
Angle’s sentence was increased from 151-188 months to 325
months.
3
It is unclear whether the district court imposed a five-level
enhancement and an upward departure or simply imposed a five-
level upward departure to Angle’s baseline criminal history
category and his offense level. Angle argues that the court im-
posed an enhancement and an upward departure, while the
government argues that the district court simply imposed an
upward departure. Because the court made no specific findings
concerning an enhancement, we assume that the district court
imposed a five-level upward departure.
No. 01-3670 3
II. ANALYSIS
When examining the district court’s imposition of an
upward departure, we review the factual findings underly-
ing the departure for clear error and whether the degree
of departure is linked to the structure of the sentencing
guidelines for abuse of discretion. See United States v.
Cross, 289 F.3d 476, 478 (7th Cir. 2002); United States v.
Peterson, 256 F.3d 612, 614 (7th Cir. 2001). Although
deferentially reviewed, the district court must explain its
departure by assigning “some value” for each ground of
departure. See United States v. Tai, 994 F.2d 1204, 1214
(7th Cir. 1993) (the court must explain factors in defen-
dant’s history not accounted for by the guidelines that
make the defendant more comparable to a criminal in a
higher category and then assign some value to each
ground of departure).
The sentencing guidelines authorize an upward depar-
ture when reliable evidence indicates that the criminal
history category does not adequately reflect the serious-
ness of the defendant’s past criminal conduct or there is
a high likelihood of recidivism. U.S.S.G. § 4A1.3. In this
case, the government offered evidence in the presentence
report that Angle had sex with a fourteen-year-old boy
in Georgia, possessed child pornography from Mexico, sent
a Valentine’s Day card to a child he met at a gym, took
a shower with an unrelated twelve-year-old boy, and mo-
lested numerous children. The district court did not make
findings regarding the reliability of this evidence. Instead,
the court simply relied on the evidence submitted includ-
ing the uncorroborated allegations that Angle molested
numerous children—his girlfriend’s daughter, his niece
and nephew, and children in Mexico. The only evidence
offered regarding Angle’s molestation of family members
was a letter from the wife of Angle’s nephew. The letter
described these incidents of molestation by Angle but
did not offer any specific details about the alleged incident.
4 No. 01-3670
Moreover, the only evidence concerning Angle’s behavior
in Mexico was a videotape of children committing lewd
acts in which Angle did not appear. Because these alleged
incidents of molestation are uncorroborated, the district
court was required to make specific findings regarding
the reliability of the evidence before it used the evidence
to support an upward departure. See United States v.
Ruffin, 997 F.2d 343, 346 (7th Cir. 1993). Without such
findings none of the evidence may be used to support the
upward departure. Id.; U.S.S.G. § 4A1.3.
Furthermore, we have ruled on several occasions that
when the district court applies an upward departure it
must analogize the factors it identified as grounds for de-
parture to similar offenses contained within the guidelines
and link the factors to the degree of the departure. See
Cross, 289 F.3d at 478; Peterson, 256 F.3d at 614; Tai,
994 F.2d at 1214. However, the district court did not as-
sign “some value” for each ground of departure. See Tai,
994 F.2d at 1214. Instead, the district court found that
Angle was more comparable to a category VI criminal
without discussing whether Angle had committed three
crimes of violence, a required element of a category VI
criminal. Id. Additionally, the court did not explain why
Angle was more comparable to a category VI criminal than
a category II or III criminal. It is not enough that Angle
meets most of the criteria for a career criminal; the court
must employ a step-by-step process when imposing an
upward departure to determine the most comparable
criminal history category that applies to the defendant.
See United States v. Croom, 50 F.3d 433, 435 (7th Cir.
1995); Ruffin, 997 F.2d at 346. Because the court did not
follow the step-by-step process in imposing the upward
departure or make reliability findings about the uncor-
roborated evidence, this case must be remanded. See
Cross, 289 F.3d at 478-79; Tai, 994 F.2d at 1214.
No. 01-3670 5
III. CONCLUSION
For the foregoing reasons, we VACATE Angle’s sentence
and REMAND the case for further proceedings consistent
with this opinion. Circuit Rule 36 shall apply on remand.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-10-03