United States v. Richard R. Starnes , 2 F. App'x 639 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-2729
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Richard R. Starnes, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: December 13, 2000
Filed: February 14, 2001
___________
Before LOKEN and HEANEY, Circuit Judges, and BATTEY,1 District Judge.
___________
PER CURIAM.
Richard R. Starnes was charged in an eight-count indictment with possessing
altered money orders, in violation of 18 U.S.C. § 500. He pleaded guilty to Count 1
of the indictment in exchange for the government’s dismissal of the remaining seven
counts. A presentence report was prepared, which yielded a guidelines range of 15 to
21 months imprisonment. The district court departed upward from the guidelines
1
The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
range, imposing the statutory maximum of five years. Starnes objected to the lack of
prior notice of the district court’s intention to depart upward and to the extent of the
departure. The district court rejected both arguments and Starnes appeals, raising the
same issues with this court. We affirm.
I. Notice
Federal Rule of Criminal Procedure 32 requires a court to provide a defendant
notice if it intends to depart upward from a defendant’s guidelines sentencing range.
See Burns v. United States, 501 U.S. 129, 138-39 (1991). This court has held that
inclusion in a presentence report of the grounds that may form the basis for an upward
departure satisfies the rule. See United States v. Hill, 951 F.2d 867 (8th Cir. 1991).
Here, the presentence report included a section entitled, “FACTORS THAT MAY
WARRANT DEPARTURE.” The section read as follows:
The Court may consider U.S.S.G. § 4A1.3 to determine if the defendant's
criminal history category represents the seriousness of his past criminal
conduct. The defendant has well over 20 criminal history points. The
defendant has continued the same type of criminal activity as in the past.
In our view, this was sufficient notice to Starnes concerning the possibility of an
upward departure.
II. The Extent and Reasons for Departure
The district court stated that it departed upward because Starnes’s past and
present conduct warranted a departure. The court referred to U.S. Sentencing
Guidelines Manual § 4A1.3, which permits an upward departure if a defendant’s
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 pointed out that Starnes had been sentenced on several prior occasions for
-2-
burglary, theft, attempted theft, and forgery. The court further noted that Starnes had
been sentenced in 1996 for a crime identical to the crime with which he was charged
in this case.
We review the district court’s decision under an abuse-of-discretion standard.
We find no abuse here. The guidelines specifically authorize a departure if the court
finds that “[t]here exists an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence different from that
described.” 18 U.S.C. § 3553(b); see also United States v. Sharna, 85 F.3d 363, 364
(8th Cir. 1996).
In conducting our review, we defer to the district court in the critical issue of
whether a given factor is present to a degree not adequately considered by the United
States Sentencing Commission. See United States v. Coon, 187 F.3d 888, 899-900
(8th Cir. 1999), cert. denied, 120 S. Ct. 1417 (2000). We agree with the district court
that the factors it cited were appropriate in considering the propriety of an upward
departure.
After carefully reviewing the entire record, we affirm the judgment of the district
court.
A true copy.
Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-