United States v. Varney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4327
TEDDY VARNEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-95-173)
Submitted: April 29, 1997
Decided: May 22, 1997
Before WIDENER, WILLIAMS, and MOTZ,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
R. Clarke VanDervort, ROBINSON & MCELWEE, Charleston, West
Virginia, for Appellant. Rebecca A. Betts, United States Attorney,
Margaret A. Hickey, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Teddy Varney appeals from a district court judgment entered pur-
suant to his plea of guilty to charges that he violated 18 U.S.C. § 371(1994), by conspiring to steal United States Treasury checks from res-
idential mailboxes. The district court sentenced Varney to 21 months
imprisonment, denying him a reduction for acceptance of responsibil-
ity under U.S.S.G. § 3E1.1* and departing upward from the applica-
ble guideline based on its determination that a criminal history
category of V rather than IV more accurately reflected Varney's prior
criminal conduct. Varney's counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), challenging the court's
denial of a reduction and decision to depart. Finding no error, we
affirm.
The record discloses that, while on bond pending sentencing pursu-
ant to his plea of guilty to violating section 371, Varney was arrested
on charges of forging and uttering a stolen social security check, an
offense similar to the offenses charged in his federal indictment.
Moreover, around the time of his arrest federal officials learned of
five more criminal matters pending against Varney in West Virginia,
some of which were also for crimes similar to those charged in his
federal indictment. The district court denied a reduction for accep-
tance of responsibility based on this criminal conduct. Although
Varney points out that he admitted to his criminal conduct and fully
cooperated with law enforcement authorities, we have previously held
that continued criminal conduct following the defendant's indictment
and plea agreement provides a proper basis for denying a reduction
under § 3E1.1, even despite a defendant's cooperation and acknowl-
edgement of wrongdoing. See United States v. Kidd, 12 F.3d 30, 34
(4th Cir. 1993).
We review the district court's decision to depart upward from the
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995)
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applicable guideline range for an abuse of discretion. See United
States v. Koon, ___ U.S. ___, 64 U.S.L.W. 4512, 4516-17 (U.S. June
13, 1996) (Nos. 94-1664/8842); United States v. Rybicki, 96 F.3d 754,
756-57 (4th Cir. 1996). Guideline section 4A1.3 authorizes a sentenc-
ing court to depart from the otherwise applicable guideline range
where the defendant's criminal history category underrepresents his
past criminal conduct or the likelihood that he will commit future
crimes. Hence, where, as in this case, the district court has found the
existence of atypical circumstances or consequences surrounding the
offense of conviction, section 4A1.3 "encourages" a departure. See
United States v. Hardy, 99 F.3d 1242, 1250 (1st Cir. 1996).
Encouraged factors are an appropriate basis for departure if not
already taken into account by the applicable guideline. See Rybicki,
96 F.3d at 757-58. Section 4A1.3(e) of the guidelines explicitly
acknowledges that departure is appropriate where the defendant has
committed prior similar adult criminal conduct that has not resulted
in a criminal conviction. In this case, there was no dispute that Varney
was guilty of such conduct.
Under these circumstances, we find that the district court did not
abuse its discretion by finding that a departure was warranted. More-
over, we find the extent of the court's departure to be reasonable, as
the court merely raised Varney's criminal history category from IV
to V. Accordingly, we affirm the district court's judgment order.
In accordance with Anders, we have examined the entire record in
this case and find no meritorious issues for appeal. This court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such a peti-
tion would be frivolous, then counsel may move in this court for leave
to withdraw from representation. Counsel's motion must state that a
copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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