United States v. Byron Handley

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-4118
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Byron David Handley, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 5, 2000
Filed: July 12, 2000
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Before RICHARD S. ARNOLD, BOWMAN, and BEAM, Circuit Judges.
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PER CURIAM.
Byron Handley pleaded guilty to possessing an organization’s counterfeited
security with intent to deceive another person or organization, in violation of 18 U.S.C.
§ 513(a). Based on a total offense level of 8 and a Category VI criminal history, his
Guidelines imprisonment range was 18-24 months. The district court1 departed
upward, concluding that his criminal history significantly underrepresented his past
criminal conduct and likelihood of recidivism, and sentenced him to 48 months
1
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
imprisonment and 3 years supervised release. Handley appeals, challenging the extent
of the departure.
Having reviewed the matter, we find no abuse of discretion. See United States
v. Johnson, 56 F.3d 947, 958 (8th Cir. 1995) (standard of review). “If reliable
information indicates that the 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 may consider imposing a sentence departing from
the otherwise applicable guideline range.” U.S. Sentencing Guidelines Manual
§ 4A1.3, p.s. (1998). In determining whether an upward departure is warranted, the
district court may consider the similarity of past offenses to the instant offense, and may
conclude that there is a heightened need for deterrence or that leniency has not been
effective. See United States v. Goings, 200 F.3d 539, 542 (8th Cir. 2000). Here, the
court identified a multitude of convictions between 1992 and 1999, many for similar
“fraud-type offenses,” including retail fraud, check-kiting-type offenses, and forgery.
The court appropriately imposed a 48-month prison term, noting that the sentences
Handley had received for his prior crimes--probation, boot camp, and short terms of
imprisonment--had not deterred him from committing additional offenses. Despite
Handley’s arguments to the contrary, the seriousness of a defendant’s offenses need not
escalate throughout his criminal history, nor must he commit violent or drug-related
crimes, to warrant an upward departure. See, e.g., United States v. Herr, 202 F.3d
1014, 1017 (8th Cir. 2000).
Accordingly, we affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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