United States v. William St. John ( 1997 )

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No. 96-2805
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
William St. John, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 4, 1997
Filed: February 7, 1997
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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.
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PER CURIAM.
William St. John appeals from the 41-month sentence imposed by the
district court1 following his guilty plea to theft of property in Indian
Country, in violation of 18 U.S.C. §§ 661 and 1153. We affirm.
We reject St. John's argument on appeal that, when considering
imposition of an enhancement under U.S. Sentencing Guidelines Manual
§ 2B1.1(b)(4)(A) (1995) for more than minimal planning, the district court
violated Federal Rule of Criminal Procedure 32(c)(1).2 St. John did not
dispute any factual allegation in the
1
The Honorable Charles B. Kornmann, United States District
Judge for the District of South Dakota.
2
Language formerly in Rule 32(c)(3)(D) was amended and
relocated to Rule 32(c)(1) in 1994. See Fed. R. Crim. P. 32
Advisory Committee Notes (1996).
presentence report (PSR). Rather, he objected only to the application of
the more-than-minimal-planning enhancement based on the uncontested facts.
In such circumstances, Rule 32(c)(1) is not implicated. See United States
v. Tovar, 27 F.3d 497, 499-500 (10th Cir. 1994). Given the evidence in the
record that St. John took definite precautions to conceal the automobile
theft at issue, and that he had an extensive prior history of automobile
thefts, we conclude the district court did not clearly err in finding more
than minimal planning. See U.S. Sentencing Guidelines Manual § 1B1.1,
comment. (n.1(f)) (1995); United States v. Coney, 949 F.2d 966, 968 (8th
Cir. 1991) (standard of review).
We further reject St. John's argument that the district court erred
in departing upward under U.S. Sentencing Guidelines Manual § 4A1.3 (1995).
St. John's 30 criminal-history points placed him in Criminal History
Category VI. In departing upward beyond Category VI, the Guidelines direct
the sentencing court to "structure the departure by moving incrementally
down the sentencing table to the next higher offense level in Criminal
History Category VI until it finds a guideline range appropriate to the
case." The district court's methodology achieved the result of moving
incrementally six levels down the sentencing table, and we find such
methodology reasonable. See United States v. Dixon, 71 F.3d 380, 382-83
(11th Cir. 1995) (district court need not explicitly discuss reason for
bypassing incremental offense level; departure above Category VI will be
reviewed for reasonableness); cf. United States v. McKinley, 84 F.3d 904,
911 (7th Cir. 1996) (finding district court's methodology reasonable and
sufficiently linked to structure of Guidelines where court moved down eight
levels, or one level for every three criminal history points over number
required for placement in Category VI); United States v. Cash, 983 F.2d
558, 561 n.6 (4th Cir. 1992) (departing above Category VI by moving
vertically to successively higher offense levels will produce roughly same
10-15% increase in guideline range
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as extrapolating horizontally by extending criminal history categories),
cert. denied, 508 U.S. 924 (1993).
Moreover, the sentence imposed by the district court was not an abuse
of discretion, as St. John had more than double the number of criminal
history points required to reach Category VI, and the sentence was well
below the five-year statutory maximum. See 18 U.S.C. § 661; United States
v. Poe, 96 F.3d 333, 334 (8th Cir. 1996) (standard of review); United
States v. Saffeels, 39 F.3d 833, 838 (8th Cir. 1994); United States v.
Carey, 898 F.2d 642, 646 (8th Cir. 1990).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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