United States v. Baker

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11085
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MICHAEL ANTHONY BAKER
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-466-1-X
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April 8, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Michael Anthony Baker appeals his sentence of 46 months’
imprisonment after pleading guilty to conspiracy to commit bank
fraud. Baker waived his right to appeal his sentence in his plea
agreement, except in the event of an upward departure. The
district court did depart upward from the sentencing guideline
range, and it is that action which Baker appeals.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-11085
-2-
Baker argues that the guidelines had already taken into
account his prior conviction and the fact that this offense was
committed while he was under a criminal justice sentence and so
quickly after his release. Baker’s argument ignores the district
court’s stated reasons for the departure: the similarity of the
offenses and the resulting greater likelihood of recidivism.
This court upheld an upward departure for these reasons in United
States v. De Luna-Trujillo, 868 F.2d 122, 124-25 (5th Cir. 1989),
specifically noting that similarity of offenses is not a factor
considered by the criminal history guidelines, and that
similarity of offenses suggests an increased likelihood of
recidivism. The district court specifically cited this case in
its reasons. The district court also noted its concern for
giving Baker a lesser sentence than that imposed for his previous
conviction, another factor not considered by the guidelines, and
a factor approved as a reason for upward departure in United
States v. Barnes, 910 F.2d 1342, 1345 (6th Cir. 1990).
Baker’s second argument, that his criminal history was not
significantly more serious than that of most others in criminal
history category III, also ignores the district court’s reasons
for departure. The district court did not base its departure on
a determination that his criminal history category significantly
underrepresented the seriousness of his criminal history. The
district court focused solely on the likelihood of recidivism and
No. 01-11085
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the need for incapacitation by incarceration, which reasons Baker
does not address.
Baker argues that the district court did not follow this
court’s methodology for upward departures in United States v.
Lambert, 984 F.2d 658 (5th Cir. 1993)(en banc) because it gave no
explanation for why it bypassed intermediate criminal history
categories between III and VI. The district court stated that it
had
considered all alternatives between the applicable pre-
departure guideline range of offense level 14, criminal
history category III and the departed to guideline
range of offense level 14, criminal history category
VI. The Court found them to all be inadequate to
fulfill the purposes of sentencing . . . under the
specific facts of this case.
The district court complied with Lambert. The district court was
not required to discuss each category rejected. Lambert, 984
F.2d at 663. The district court’s reason for rejecting the
intermediate categories was implicit in its explanation of its
reasons for departure, incapacitation from further criminal
activity for as long as possible, and imposition of a higher
sentence for the second offense to impress upon Baker the
seriousness of his repeated conduct.
Baker’s last argument, that the district court’s action
effectively nullified his substantial assistance, again ignores
the fact that the district court granted the Government’s motion
for downward departure and gave Baker a sentence of 46 months, 14
months less than the 60 months that the court was originally
No. 01-11085
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contemplating. The district court gave effect to Baker’s
substantial assistance to the extent that the court determined it
was outweighed by the other factors warranting an upward
departure.
The district court did not abuse its discretion in departing
upward. United States v. Ashburn, 38 F.3d 803, 807 (5th Cir.
1994)(en banc). Baker’s sentence is AFFIRMED.