United States v. Peterson, Jeffrey A. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1003
United States of America,
Plaintiff-Appellee,
v.
Jeffery A. Peterson,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 CR 15--John C. Shabaz, Judge.
Argued June 8, 2001--Decided July 5, 2001
Before Bauer, Easterbrook, and Kanne,
Circuit Judges.
Kanne, Circuit Judge. Jeffery Peterson
pleaded guilty to one count of bank fraud
in violation of 18 U.S.C. sec. 1344. The
pre-sentence report (the "PSR")
calculated Peterson’s base level offense
at 11, and his total criminal history
points at 19, which placed his criminal
history in category VI of the Sentencing
Guidelines./1 Based on these suggested
findings, the appropriate sentence range
for Peterson under the Sentencing
Guidelines was 27 to 33 months. The court
made a two-level upward departure in
Peterson’s offense level, pursuant to
U.S.S.G. section 4A1.3, and sentenced him
to 41 months in prison. Peterson now
appeals his sentence, arguing that the
district court incorrectly applied
section 4A1.3 in imposing the upward
departure. For the reasons stated below,
we affirm Peterson’s sentence.
Section 4A1.3 of the Sentencing
Guidelines explains that, "[i]f reliable
information indicates that the criminal
history category does not adequately
reflect the seriousness of the
defendant’s past criminal conduct or the
likelihood that the defendant will commit
other crimes, the court may consider
imposing a sentence departing from the
otherwise applicable guideline range."
U.S. Sentencing Guidelines Manual sec. 4A1.3
(1998). Section 4A1.3 then provides a
non-exhaustive list of five types of
information that a district court might
rely on to impose an upward
departure./2
We employ a three part test to review
the district court’s use of section 4A1.3
to depart from the Sentencing Guidelines.
See United States v. Duncan, 230 F.3d
980, 986 (7th Cir. 2000); United States
v. McKinley, 84 F.3d 904, 911 (7th Cir.
1996). First, we review de novo whether
the district court articulated adequate
grounds for the departure. See Duncan,
230 F.3d at 986. Second, we examine the
facts cited by the district court in
support of the departure, ensuring that
such facts actually exist in the record.
See id. We conduct this review for clear
error. See United States v. Paredes, 87
F.3d 921, 926 (7th Cir. 1996). Finally,
we determine whether the degree of the
district court’s departure is linked to
the structure of the sentencing
guidelines. See Duncan, 230 F.3d at 986.
This aspect of the court’s departure is
reviewed deferentially. See id.
Peterson first argues that the district
court relied solely on his criminal
history points in deciding to impose an
upward departure and that this was not an
adequate ground upon which to base such a
departure. We do not agree with
Peterson’s assessment of the ground
articulated by the court as the basis for
its imposition of an upward departure.
This court has explained that "if a
defendant has been convicted for the same
offense more than once, he has
demonstrated the need for greater
sanctions to deter him from committing
that same crime again--greater sanctions
than might be required for a defendant
who has never been convicted of a similar
offense." United States v. Schmude, 901
F.2d 555, 559 (7th Cir. 1990). The
district court recognized that Peterson
is just such a defendant. Noting the fact
that seven of Peterson’s eight
convictions over the course of the last
ten years involved check deception,
forgery, theft, or identity theft, the
court correctly observed that Peterson
had "made a full-time career of
defrauding individuals and financial
institutions." Tr. of Jeffery Peterson’s
Sentencing Hr’g. at 18. The court also
stated that such an extensive pattern of
behavior indicated a serious likelihood
that Peterson would continue this
deceptive behavior when given the
opportunity. Additionally, the court
explained that it considered the PSR’s
tally of 19 criminal history points to be
accurate, and that "Peterson ha[d] at
least 18 criminal history points and a
number of pending charges not used to
calculate his offense level." Id. Taking
all of these specifically articulated
facts into account, the district court
concluded that there was a "substantial
amount of reliable information . . .
indicating [that] the criminal history
category d[id] not adequately reflect the
seriousness of [Peterson’s] past criminal
conduct or the likelihood that he w[ould]
commit other crimes, " and that "the
extent and nature of the defendant’s
criminal history taken together are
sufficient to warrant an upward
departure." Id. at 18, 24.
Just as the district court did here, we
have found factors such as a defendant’s
accumulation of excessive criminal
history points and a pattern of
repeatedly committing specific types of
crimes to be adequate grounds for an
upward departure pursuant to section
4A1.3. See, e.g., United States v. Ewing,
129 F.3d 430, 437-38 (7th Cir. 1998)
(explaining that defendant’s "extensive
number of criminal history points" and
the "fact that [the defendant] repeatedly
engaged in the same course of criminal
conduct" were each adequate grounds upon
which to base an upward departure
pursuant to section 4A1.3); see also
United States v. Lewis, 954 F.2d 1386,
1397 (7th Cir. 1992) (finding that defen
dant’s 22 criminal history points
warranted the district court’s imposition
of an upward departure). Therefore, we
find that the district court’s thorough
explanation of the grounds upon which it
based its decision to impose an upward
departure was more than adequate.
As to the second prong of our review of
the district court’s decision, Peterson
concedes that the facts relied upon in
support of the upward departure have been
proven by a preponderance of the evidence
by the government and that they exist in
the record. We agree with Peterson’s
assessment and therefore conclude that
the district court did not err in relying
on the facts that it did.
Finally, Peterson contends that the
district court’s degree of departure was
not reasonable because it failed to
articulate a link between his excess
criminal history points and its decision
to impose an incremental upward
departure. He also argues that the court
failed to state a reason for its decision
to structure the increase in the manner
in which it did. We reject both of these
arguments. "The question of degree of
departure is entirely one of
reasonableness, and we give considerable
leeway to a district court’s
determination of the criminal history
category that most accurately reflects
the defendant’s true criminal history."
United States v. Schweihs, 971 F.2d 1302,
1319 (7th Cir. 1992). The district court
in this case structured its upward
departure from the PSR’s suggested
offense level of 11 to an offense level
of 13 by increasing one offense level for
Peterson’s first three criminal history
points in excess of the 13 required for
category VI and one additional level for
the remaining criminal history points.
This court has found similarly structured
upward departures to be "reasonable and
sufficiently linked to the structure of
the guidelines." McKinley, 84 F.3d at
910-11 (affirming upward departure
pursuant to section 4A1.3 where the
district court "added one offense level
for every three of [defendant’s] criminal
history points that exceeded 15"); see
also Ewing, 129 F.3d at 437 (same). Thus,
we find that the district court’s upward
departure was both reasonable and
sufficiently linked to the structure of
the Sentencing Guidelines.
Because the district court’s imposition
of an upward departure pursuant to
section 4A1.3 was proper, we AFFIRM
Peterson’s sentence.
FOOTNOTES
/1 Under the Sentencing Guidelines, a defendant with
at least 13 criminal history points falls into
category VI.
/2 Section 4A1.3 explains that "reliable informa-
tion" may include, but is not limited to, infor-
mation concerning:
(a) prior sentence(s) not used in computing the
criminal history category (e.g., sentences for
foreign and tribal offenses);
(b) prior sentence(s) of substantially more than
one year imposed as a result of independent
crimes committed on different occasions;
(c) prior similar misconduct established by a
civil adjudication or by a failure to comply with
an administrative order;
(d) whether the defendant was pending trial or
sentencing on another charge at the time of the
instant offense;
(e) prior similar adult criminal conduct not
resulting in a criminal conviction.