United States v. Brack

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4214
MARGARET ANN BRACK,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-304)
Submitted: September 19, 2002
Decided: September 30, 2002
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Walter T. Johnson, Jr., LAW OFFICE OF WALTER T. JOHNSON,
JR., Greensboro, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Arnold L. Husser, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BRACK
OPINION
PER CURIAM:
Margaret Ann Brack pled guilty to three counts of identification
fraud, in violation of 18 U.S.C.A. § 1028(a)(7), (b)(2)(B) (West
2000). At sentencing, the district court granted the government’s
motion for an upward departure, increasing Brack’s criminal history
category from level III to level V at an offense level of twelve, with
a sentencing range of twenty-seven to thirty-three months. Brack sub-
sequently received a thirty-three month sentence. Brack’s sole argu-
ment on appeal is that the court abused its discretion in granting the
government’s motion for a upward departure. We affirm.
A sentencing court may depart above the guideline range only if
the court finds an aggravating factor of a kind, or to a degree, not ade-
quately taken into consideration by the Sentencing Commission. 18
U.S.C.A. § 3553(b) (West 2000). The court’s determination in this
regard should focus on whether the factor is taken into account by the
guidelines, policy statements, or commentary. United States v. Bar-
ber, 119 F.3d 276, 280 (4th Cir. 1997) (en banc). If the court identi-
fies a factor for which departure is encouraged, and the factor is
already accounted for under the applicable guideline, a departure is
possible only if the factor is present to an exceptional degree or in
some other way makes the case different from the ordinary case
where the factor is present. Koon v. United States, 518 U.S. 81, 96
(1996).
Generally, a district court’s decision to depart is reviewed for an
abuse of discretion. Id. at 91, 98-99. However, a district court’s deci-
sion that an encouraged factor is not adequately accounted for under
the applicable guideline is not accorded deference. Id. at 95-96, 99-
100; see also United States v. Rybicki, 96 F.3d 754, 757-58 (4th Cir.
1996). A defendant’s criminal history is an encouraged factor for an
upward departure. A court may depart upward from the guideline
range "[i]f reliable information indicates that the criminal history cat-
egory does not adequately reflect the seriousness of the defendant’s
past criminal conduct or the likelihood that the defendant will commit
other crimes." U.S. Sentencing Guidelines Manual § 4A1.3, p.s.
(2001).
UNITED STATES v. BRACK 3
In this case, the district court chose to depart as a result of the
extent of damage to the victims, the likelihood of recidivism, and the
understatement of Brack’s criminal record. We have reviewed the dis-
trict court’s reasoning at sentencing and the briefs and materials sub-
mitted by the parties in this case, and find no abuse of discretion in
the district court’s upward departure. Accordingly, we affirm Brack’s
sentence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED