United States v. Philip Scott Ashburn

argue ap- Conclusion Secondarily, defendants 2Sl.l(b)(l) § violates plication of U.S.C. error, Finding the district no we AFFIRM of the Constitution. Facto Clause Ex Post appeal. on court on all issues raised apply sentencing A court must guidelines effective at the time

version of the application of that ver unless

of Ex Post Facto Clause would violate the

sion Mills, United States

of the Constitution. (5th Cir.1993). 1132, 1136 n. 5 Sentencing The Federal America, UNITED STATES amended include were Plaintiff-Appellee, 2S1.1(b)(1) § and this circuit held United 381, Breque, 964 F.2d Cir.1992) (3) “sting” ad three level ASHBURN, Philip Scott Defendant- 2S1.1(b)(1) § justment provided in was a sub Appellant. change guidelines- that could stantive 1, 1991, pre-November apply conduct No. 93-1067. and belief. Appeals, United States Court notes, however, Court the case This Fifth Circuit. defendants, charged each was with at of both 10, May 1994. (1) subsequent one count to the Novem- least guidelines inclusion in the ber Granting Rehearing En Order Banc 2Sl.l(b)(l).7 § July 1994. “grouped” money The district court

laundering together counts in accordance Guidelines, Sentencing

with United States 3D1.3(d)8

§ and accordance with 18 3553(a)(4).9

Accordingly, we the district AFFIRM (3) a in-

court’s assessment of three level 2Sl.l(b)(l) pursuant

crease of the Fed- therefore, Sentencing

eral Guidelines and

AFFIRM the district court’s sentence of

both defendants. 3553(a)(4) Tíquet, charged activity 7. in Count XVII for on 9.18 U.S.C. states: Castaneda, January charged Imposition of a Sentence: 20, 1991, activity Count XV for Count on December (a) imposing Factors to be considered in Sixteen, January on 1992 and Count impose sentence—The court shall Januaiy on Seventeen 1992. sufficient, greater necessary, but not than Groups closely related counts. All counts comply purposes para- with the set forth in involving substantially the same harm shall be (2) court, graph of this subsection. The grouped together single Group. into Counts determining particular sentence to be substantially involve the same harm within the imposed, shall consider (d) meaning of this rule: when the offense level (4) the kinds of sentence and the largely determined basis of the total range applicable category established for the loss, quantity amount of harm or of sub- by applicable of offense committed cate- aggre- stance gate or some other measure involved gory guide- of defendant as set forth in the harm, ongoing or if the offense behavior is lines that are issued Com- guideline or continuous in nature offense 994(a)(1) mission to 28 U.S.C. is written to cover such behavior. following and that are in effect on the date the defen- covered Offenses grouped are to be under this subsection: Section dant is sentenced ... 2S1.1.

Timothy Henry, Asst. Federal Public J. Defender, Kirkendoll, Ira R. Federal Public Defender, Worth, TX, appellant. Fort Stokes, Lockhart, Christopher Joe C. Asst. Attys., Stephens, Atty., Richard H. U.S. U.S. Worth, TX, appellee. Fort DAVIS, GOLDBERG, Before DeMOSS, Judges. Circuit GOLDBERG, Judge: Circuit Philip appeals Scott Ashburn the sentence pleaded guilty given him after he to two robbery in counts of bank violation of 18 2113(a). At Ashburn’s hearing, adopted the district court the Pre- (PSI) Investigation Report’s calcu- range lation of the defendant’s un- Guideline der the Guidelines. The sentenc- ing court overruled all but one of Ashburn’s objections report.1 The court then appropriate determined Guideline for Ashburn’s offense was 63 to 78 range months. because the range believed the insuffi- Guideline ciently reflected Ashburn’s recidivism, upwardly and likelihood he de- parted, sentencing Ashburn term of 180 months. objec- appeals

Ashburn the denial of his upward departure. tions to the PSI and the Although objections to the PSI are with- merit, upward departure out we find that the sufficiently justified was not and was based improper on considerations. We therefore vacate Ashburn’s sentence and remand this resentencing pursuant case to 18 U.S.C. 3742(f)(2)(A). Background I. pleaded guilty

Ashburn Counts 3 and alleged of a four count indictment that participated separate he in four Texas bank guilty plea, robberies.2 In return for the government agreed to dismiss the other two only objection specifically charged 1. The sustained the district 2. The indictment Ashburn 2113(a). court was to allow an additional reduction in with violations of 18 U.S.C. acceptance respon- Ashbum’s offense level for sibility. robberies in mitted two earlier December with a charged Ashburn Count counts. July January of 1992. These two rob- on 1992 1991 and robbery occurred which bank beries, charged Bank of in counts 1 and of Ash- $4,167 from the was stolen in which Worth, Texas; indictment, Count later dismissed un- bum’s were in Fort America robbery in plea agreement. which with a der the charged Ashburn $32,000 in cash stolen approximately English April told Eckert that in Hurst, Texas Bank from the American (English) received a call from"Ash- she July he had committed' a in which he stated burn Ashburn’s sen- prior to prepared The PSI Eckert that a robbery Florida. confirmed had been convicted tencing that he West, revealed Key robbery reported had been robbery. For of armed bank in 1984 day.3 specified Eckert also Florida on offense, year sentence served a six attempted two additional rob- testified about Attorney custody General July of 1992 Ashburn had beries which (YCA), Act Youth Corrections the Federal English.4 to related 5010(b). at 18 U.S.C. formerly codified The district court concluded Crim- three The PSI assessed History Category adequately II did not inal prior convic- for this points against Ashburn past of Ashburn’s con- reflect the seriousness tion, history category of a criminal producing that commit or the likelihood he would duct of- increased Ashburn’s also II. PSI up- therefore additional crimes. The by two for the instant offenses level fense wardly departed, to Ashburn express threat of death he made because impris- month terms serve concurrent 180 robbery. committing July 31 Unit- while court also onment on Counts 3 and 4. The Commission, Guidelines ed States year super- to a 3 term of sentenced Ashburn (U.S.S.G.) 2B3.1(b)(2)(F). Manual vised release. request for a granted Ashburn’s The court that court Ashburn contends the district in his offense level for reduction three level erroneously level and calculated his offense responsibility, U.S.S.G. acceptance History Category and made various Criminal 3El.l(b)(2), reduc- instead of the two level depart. upwardly decision to errors its The court by the PSI. tion recommended objec- all of Ashbum’s other then overruled Analysis II. result, Ashburn’s to the PSI. As tions objections to the dis- Ashburn makes two calculated at 25. When offense level was appropriate calculation of the trict court’s with his Criminal figure was cross-referenced His first range for his crimes. II, History Category of Ashburn’s Guideline the, in his sen- argument regards increase court, range 63 to 78 months. was death; express threat of tence for an range, par- notified dissatisfied with con- the inclusion of his YCA other concerns upwardly to provisional ties of its intention of his Criminal in the determination viction calculation. depart from the Guideline appeals the History Category. Ashburn gov- upward departure, the support To upwardly depart from the judge’s to decision Investiga- Bureau of ernment called Federal range grounds on the Guidelines (FBI) Eckert, testi- agent, Deborah who tion justification provide judge failed to sufficient hearing her in- about fied at the departure departure and because for the robberies and at- vestigation into several by proper evidence. We unsupported was which Ashburn was tempted robberies for in turn. each consideration will address responsible; Agent Eckert de- alleged to be analysis embarking upon the Prior conducted with Ash- scribed an interview she contentions, note specific co-defendant, English. of Ashburn’s April Jeanette burn’s “[ojur under the of a sentence interview, Ash- review English asserted that In that determining wheth- guidelines is ‘confined had com- to her that he burn had admitted govern- agreement, robbery. charged 4. Pursuant with this 3. Ashburn was never prosecute for these agreed ment attempts. two 1340 -, -, imposed in 113 123 violation of law U.S. S.Ct.

er a sentence (1993). application Thus, an incorrect a result of L.Ed.2d 598 we are bound to or as sentencing guidelines.’” United States Commentary unless it can be follow F.2d 56, Cir.), Shipley, 963 cert. to be inconsistent with the shown Guidelines. — --, denied, U.S. S.Ct. case, In this because we find such an incon- (1992) (quoting United States v. L.Ed.2d 263 sistency, we are not constrained the Com- Nevarez-Arreola, Cir. mentary’s interpretation of the Guidelines. 1989)) (internal omitted); quotations Commentary on the Ashburn relies sec- 3742(e). This court reviews the meaning explains tion 2B3.1 which of an application of the de lower court’s “express Commentary threat death”. The findings.of for clear error. novo and its fact states that the: Brown, United States (5th Cir.1993). should consider the intent of the underlying provision provide in- is to Express Threat of Death A. creased level for cases in offense which the adopted The district court the PSI’s offender(s) engaged in conduct that would point recommendation of a two increase person, instill in a reasonable is a who express due to an Ashburn’s offense level offense, significantly greater victim of the 2B3.1(b)(2)(F).5 § of threat death. U.S.S.G. necessary fear an than to constitute escape his from While the 3Í July robbery. element of the offense of robbery, bystanders Ash- several observed ' 2B3.1, § According note U.S.S.G. Ash- gave exit the The observers burn bank. burn, Application explains Note stopped^ turned chase. Ashburn toward enhancement for.a threat of death is directed and, interlopers, holding his hand in these his at those offenders who menace victims with presence gun, pocket to simulate the of a of threats death. He notes that the exam- “Stop got gun I shouted and will —I’ve Note, ples Application cited “an oral you!” then ran a car shoot toward using or written words such as ‘Give demand by English, hopped occupied his co-defendant ” money you,’ always me the or I will kill in, sped away. combine the threat of death the demand with court concluded The district that Ash- fact, money. for Application the Note threatening bystand- burn’s remarks to the specifically links the threat of death with justify point ers were sufficient to a two element of the offense. Ashburn concludes increase in'Ashburn’s offénse level. Ashburn escape that since is not an element of 18 contends that this increase was error be- incorrectly U.S.C. district court the Commentary §to cause the 2B3.1 establish- enhanced his for threats of death. applies es that the two level enhancement only when the threat is directed at the victim If bystander Ashburn is correct that a robbery. of the The threat of death in this robbery cannot be a victim of a bank case, Ashburn, only contends was directed at Commentary, inconsistency the then ex- Therefore, bystanders. according to Ash- Application ists between this Note and the interpretation Commentary, of the burn’s the section of the it Guidelines which is based. improper. increase of two levels was circumstances, In such follow the Guide- — Stinson, at-, lines. U.S. 113 at Supreme recently S.Ct. Court held that (“If, example, commentary Commentary Sentencing in the guideline interprets it interprets explains guideline “that are inconsistent in that is following violating authoritative unless it violates the one will result in the Constitu dic- statute, other, tion or a or is tates of the federal inconsistent Reform with, of, plainly reading compliance or a erroneous that Act itself commands with the — States, (b).”) guideline.” guideline. 3553(a)(4), §§ Stinson See 18 that, 2B3.1(b)(2)(F) specifies 5. Section “if an ex- levels.” made, press by threat of death was increase simply culpability of applicable Guideline states that those who assist in perpe made, express

“if an threat death tration of the crime. 559 F.2d 444 n. 5 (5th Cir.1977). by levels.” U.S.S.G. increase The Willis court determined 2B3.1(b)(2)(F). This section is not limited larceny obviously “[t]he crime contin against the to those threats made victims long asportation ues as as the continues and robbery, e.g., a teller. The Guide- the bank original asportation continues at least so bystanders exclude from its line does not long perpetrator as the of the crime indicates imply and to such an exclusion would reach actions his that he is with dissatisfied language of contradict the Guidelines. goods 444; location of the stolen ...” Id. at Thus, Commentary properly if is con- Pate, see also United States v. Ashburn, carry it does not strued (8th Cir.1991) (“A robbery bank does not force of law. necessarily begin or end at the front doors of bank.”); James, United States v. however, opinion, This be inter- — (2d Cir.), denied, cert. U.S. death, preted any hold that threat of -, (1993) 114 S.Ct. 126 L.Ed.2d 362 made, whenever and to whomever suffices to (bank 2113(a) robbery offense in 18 U.S.C. The threat enhance defendant’s sentence. period pursuit). extends to the of hot part must occur as of the commission of the courts, many sum of these cases is that ours below, robbery. bank as we show included, escape phase have found that the robbery ongoing during the crime of bank robbery part can be considered phase in effects his which the defendant robbery offense of bank Thus, under various cir escape. a sufficient nexus exists be- cumstances. present We believe that bystand- Ashburn’s threat of death to tween situation is such a robbery circumstance. ers and his commission of the bank two level enhancement under any The Guidelines intended that threat 2B3.1(b)(2)(F) proper this case. death, during if made the commission of a To determine whether a link ex- sufficient robbery, bank would be sufficient for a two express ists between an threat of death made point increase in a offense level. defendant’s bystander and the commission of the The Guidelines as were concerned with the offense, must we delineate boundaries of impact upon pass- of death threats innocent Specifically, the crime. the issue before us is ersby upon Therefore, employees. as bank committing whether Ashburn was still a bank properly we conclude that the trial court robbery when he threatened to shoot the objections denied Ashbum’s to the two level is, bystanders. That ask we must whether express enhancement his sentence for process in robbing’ Ashburn was threat of death. bank, both, escaping, or or when he menaced the lives of these onlookers. B. Consideration of Youth Corrections Act Bates, United States 896 F.2d 912 History Catego- Conviction for Criminal (5th Cir.), denied, cert. 496 U.S. 110 ry 2628, 110 (1990), S.Ct. L.Ed.2d 648 this court that his Ashburn contends 1984 bank calculating held that in a defendant’s sen robbery “expunged” conviction is an convic tence, entitled, the “district court was if in that, pursuant 4A1.2(j) tion to U.S.S.G. required, deed not to consider conduct dur in should not be included his Criminal Histo ing flight imposing sentence.” Id. at 915. ry Category. pro 5021 of the Section YCA upheld up The court then the trial court’s vides: departure in ward the defendant’s sentence mayhem during

based on the committed his (a) Upon discharge by the unconditional escape robbery. from a bank youth of a committed of- Commission Willis, Similarly, in expiration United States v. of the maxi- fender before him, although upon ruled that imposed the crime of bank rob- mum sentence the con- bery require escape automatically does not as an essential viction shall be set aside and element, throughout youth “the crime continues the Commission shall issue to the escape” purposes determining for offender a certificate to that effect. added). 5021(a) (1976) Congress’ design employing the term (emphasis 18 U.S.C. easily determined. We “set aside” cannot “set here is whether the question central utilizing whether the “set must determine in the YCA means language aside” YCA, Congress in- language aside” as that term is used “expunged” conviction all of the convic- tended to eliminate evidence 4A1.2(j) pro- Section in U.S.S.G. 4A1.2®. tion, through physical destruction of the i.e. expunged convic- “[sentences vides conviction,7 Congress or whether record of purposes of calcu- counted” tions are not legal merely to eradicate certain intended History Cate- Criminal lating a defendant’s If it is the consequences of that conviction. consid- cannot be conviction gory. The YCA latter, we must ascertain whether then calculating Ashburn’s ered legal consequences abolishing the of a YCA YCA, Congress meant in the byif aside” “set conviction, Congress intended to sus- “expunged.” to be for the conviction ability court to consider pend the of a future are bound that we contends calculating a defendant’s conviction v. Ar in United States this court’s decision Category. History Criminal (5th Cir.1980), cert. rington, F.2d 1119 whether the Various courts have addressed denied, 101 S.Ct. 449 U.S. mandating language in the YCA an “auto- (1981). In that case we re L.Ed.2d conviction, 18 set aside” of a YCA matic[] posses conviction for the defendant’s versed 5021, requires actual destruction or weapon by a felon because the sion of a elimination of the record of conviction. Most under the YCA. aside conviction had been set does not allow a have found that YCA Arrington’s “[e]xpunction We stated that physical court to authorize the actual obliter- upon clearly automatic his conviction of conviction. See United ation of the record discharge of six at the end unconditional (1st Doe, Cir.1984); 732 F.2d 229 States v. held that years.” “[i]f F.2d at 1124.. Doe, 556 United States v. unconditionally has youthful offender been McMains, Cir.1977); United States a criminal con discharged, the disabilities of (8th Cir.1976); but see F.2d 387 automatically re completely and

viction are Cir.1992). Doe, (3d 980 F.2d 876 moved; indeed, is set aside as the conviction generally Congress that if These cases hold if Id.6 it had never been.” “expunge” the records in the sense meant to wholly through them unavailable the reach of our Ashburn has overstated through complete segregation and seal therefore, holding Arrington; we are not destruction, specified in the it would have so persuaded expunged that his conviction (1st See, Doe, e.g., F.2d at 230 statute. purposes calculating his Criminal His- for Cir.) (district correctly refused to order court tory Arrington, explicitly Category. In destroyed records because “we do see the contours of “ex- declined to delineate granted can without rewrit- how this relief be to pungement”: do not need decide now ‘We statute, no ing the since the statute makes 5021(a) (1976) § if also serves to 18 U.S.C. records.”) arrest reference to pre- Arrington’s expunge even the record of addition, In these courts reasoned that be- purposes For the of this vious conviction. at cause the arrest records of those who are appeal, defining expunction to include acquitted prosecuted or not at all remain setting his conviction is satisfac- least aside files, destroy general police seg- or tory “[t]o F.2d at 1124 n. 8. resolution.” 618 ex- Circuit’s deci- 7. We note Tenth Circuits definition of 6. Ashburn also relies on the Ninth Kammerdiener, punction respect States v. 945 F.2d “[w]ith sion in United as follows: to criminal (9th Cir.1991) holding records, that convictions YCA process expunction of seal- refers to § under 5021 could not which had been set aside ing destroying or the record of a criminal convic- criminal cate- be counted in a defendant’s expiration tion after of a certain time." United part gory. relied in The court in Kammerdiener Johnson, (10th 941 F.2d States v. in United States v. on the circuit’s decision Cir.1991) (citing Dictionary Law at 522 Black’s Cir.1991) stating Hidalgo, that 932 F.2d 1979)). ed. youthful "set aside” as defined in a California expungement an offender statute amounted to 4A1.2(j). § under records would offer of a “second chance” to the regate present arrest immature person with a cleaner slate offender should not be as a leave a convicted available shield original never found an arrestee who was for those whose encounter with the than Finally, Id. the First Circuit is guilty.” springboard world used as a legislative history of the YCA agree looked life felonious eondüct. We with the nothing support to the conclusion juve- and found rationale of the D.C. Circuit that “[i]f expunge- an Congress that intended to allow recidivist, nile offender turns into a the case of a YCA convic- ment of the actual records conferring dissipates. for the benefit Soci- Id.; Doe, contra 980 F.2d at 879-82 tion. ety’s stronger punishing appro- interest inis (3d Cir.) (history of act indicates drafters priately unrepentant an criminal.” United youthful served their wanted offenders who McDonald, to (D.C.Cir.1993) time and rehabilitated themselves have (quoting Barnes v. United out). exception stigma wiped of the States, (ci- With (D.C.1987)) 529 A.2d 286-89 decision, recent Doe our sis- omitted). Third Circuit’s tations The YCA was not intended generally agreed have that ter circuits person auspices to allow a convicted under its 5021(a) provision in is not an “set aside” handwriting to rewrite his life when his obliterating expungement in the sense of post-conviction shows that are crim- activities ' sealing segregating and the records even inal nature. conviction. sum, conviction, the YCA which under 5021(a)

Similarly, today we decide the “set automatically section “set aside” interpreted defendant, provision upon should not be to aside” release of the not be 4A1.2(j) expungement cal- expunged purposes considered of calcu- culating history cate- lating History a defendant’s criminal the defendant’s Criminal Cate- 4A1.2(j) gory. Commentary to ex- gory. Although language of section 5021 plains be, set aside for that convictions which are is not as as it clear should we believe that or errors of Congress “reasons unrelated innocence did not intend that it be used to law, e.g., rights civil or to protect order restore from full recidivist conse- stigma court, associated with a criminal quences remove the of his actions. The district expunged purposes therefore, properly considering conviction” are not acted and can be included Crimi- Guideline conviction. History Category Be- nal determinations. Upward Departure C.

cause YCA conviction here was set aside or errors for “reasons unrelated innocence complains the district law,” properly in the crimi- it was utilized improperly imposed upward depar history calculation. nal ture to U.S.S.G. 4A1.3. He ar gues departure from a Guideline legislative history sup- of section 5021 range of 180 analysis. spon- of 63-78 months a sentence ports our amendment’s unjustified sor, Dodd, was excessive and months Senator testified that section based on conduct dismissed 5021: plea bargain or not established sufficient provides an additional incentive for main- evidence. good by holding out to the taining behavior

youth opportunity an to clear his record may upwardly depart A district court from willing- ... For who those demonstrate Sentencing if the court finds themselves, help every ness to reasonable aggravating that an circumstance exists that opportunity is afforded to assist them adequately was not taken into consideration making a new start. 18 Commission. 3553(b). (1961). Cong.Rec. § a defendant is sen- The YCA was Whenever tenced, judge required designed give young the district is to defendant a new open impo- its Congress that a “state in court the reasons for lease on life. determined particular 18 U.S.C. spontaneous, youthful transgression should sition of the sentence.” (cid:127) 3553(e). departs person’s produc- upwardly If the court not inhibit a evolution into Guidelines, However, citizenship. from the the court must tive this beneficient through exercise in which it me- imposition a ritualistic reason for the specific state “the criminal chanically discusses each from that de- different of the sentence rejects category category it en route Id. scribed.” at 663. that it selects.” Id. district court’s decision review the any in our progress further Before we for abuse of discretion. upwardly depart analysis, advanced we will set out the reasons McKenzie, 991 F.2d v. States justifying up an by the court Cir.1993). (5th departure affirm a willWe judge The de departure ward this case. “if the district court from the Guidelines robbery offenses com termined that had the departure for the ‘acceptable reasons’ offers ” 1991, January of in December of mitted departure is ‘reasonable.’ United April considered 1992 and 19929 been Lambert, States History Category, Ashburn his Criminal Cir.1993) (en banc) (quoting United States criminal his would have received nine extra Velasquez-Mercado, calculations, tory court’s points. Under the Cir.1989)). 4A1.3, up Under U.S.S.G. have a total of twelve Ashburn would then warranted when the departure “is ward corresponding history points and a criminal History Category significantly un Criminal History Category con Criminal of V. When of the defen der-represents the seriousness with an Ashburn’s offense level of sidered history or the likelihood that criminal dant’s facing a judge figured that Ashburn was crimes.” will commit further the defendant range months. of 100 to 125 Guideline Departure Adequacy Justification court then the 1984 YCA convic- The cited they “if and concluded that were to be tions previously pro outlined the haveWe account, History Cat- taken into the Criminal departure upward cedure for egory sufficient to take into VI would History Criminal Cat where the defendant’s past criminal account his conduct.” Lambert, inadequate. 984 F.2d at egory is at- court at this time referenced various depart upwardly under U.S.S.G. 662-63. To tempted which Ashburn’s co-defen- robberies 4A1.3, first consider district courts must imputed had to him. The court stated dant History Criminal adjusting the defendant’s given the “likelihood the defendant will category. at Category higher next Id. ... as the commit other crimes as well seri- then evalu sentencing court must 661. The past of his criminal conduct” the ousness History Catego ate each Criminal successive upward impose court would a “rather drastic range. ry appropriate Guideline above the range departure guideline from what Lambert, we ex 4A1.3. U.S.S.G. contemplates.” The then fixed sen- plained: months, by indexing found tence of 180 in- consider each the district History Category of with an Criminal VI history category be- termediate offense level of 29. arriving it settles fore at the sentence indeed, state for upon; the court should sum, sentencing judge, provide did in- it has considered each the record that explanation for his some substantive decision Further, adjustment. it should termediate upwardly depart. the sentence why history category explain the criminal actually given per cent of the maxi- was 230 inap- is as calculated under the court, therefore, range. mum Guideline why category it chooses propriate and given accounting of should have a detailed appropriate. how it reached this rather severe enhance- Lambert, However, recognizing explained In a “[i]n ment. 984 F.2d at 662-63. cases, setting very class of we can conceive complexities the inherent a sen- narrow defendant, departure court’s will be so every “we do that the district appropriate tence to review, great that, it go to in order to survive our require not ... the district court allegations January was never indicted on the 8. The December 1991 and 1992 robber- the indictment April robbery. ies had been Counts 1 and of the 1992 bank plea bargain. the and were dismissed to why depar- final a radical explain in careful detail the sentence.11 Such to will need requirements ture from the of the Guidelines crimi- adjustments the defendant’s lesser justified by simple cannot be recitation of the inadequate.” 984 history score would be nal language of 4A1.3 that the Histo- Criminal sort of The instant case is the F.2d at 663. ry Category probability failed to reflect the Lambert court had departure that the drastic wrongfulness recidivism passage. in mind in this prior Mouthing defendant’s acts.12 of the sentencing judge failed to make ex- The authority depart court’s under 4A1.3 reasoning behind his plicit the bulk history category where the criminal “does Additionally, depart. judge decision to adequately not reflect the seriousness of the justify magnitude of the did not the overall past defendant’s criminal conduct or the like- departure. are therefore com- upward lihood that the defendant will commit other the sentence and remand pelled to vacate sentencing crimes” does not meet the court’s this case to the district court resentenc- adequately justifying upward burden ing. departure. Recidivism and seriousness are with, sentencing judge begin To failed magic by not words which their mere utter- why History catego- to indicate the Criminal empower judge depart ance from the bypassed. of III and should be He ries TV Guidelines. merely the unindicted and dis- assessed decision, requires Lambert Our prior as sentences under missed robberies judge departing guidelines from the to make History Category. The court the Criminal First, showings. various why thought a calcu- failed to indicate it such or court must indicate that he she has consid lation, contrary requirements of the Lambert, categories. ered intermediate Guidelines, necessary.10 judge was partially 984 F.2d at 662. This was accom why he believed the Crimi- failed to indicate plished given in this case. inadequate History Category V was nal large categories skipped, a more number required. why jump to VI was intervening catego detailed consideration of previ- judge’s reference to Ashburn’s Second, given. ries should have been upwardly departing is ous YCA convictions show, sentencing judge required why is justification up- for the also insufficient as History Category un Criminal as calculated departure since this conduct had al- ward Id. inadequate. der the is ready in the calculation of been considered sentencing judge in the instant case failed to History .Category. To the Criminal avoid requirement. Although he with this comply counting, necessary for the court double it is that the Criminal Histo reiterated his belief History why the to demonstrate Criminal inadequate, ry Category was he failed Category inadequately reflected calculation why provide any illumination as to this was Ashbum’s crime. Without the seriousness of Third, why the so. the court must show explanation, more detailed the district court Id. appropriate. upon it sentence settles prior should not have included accomplished at 663. This was nowhere in its consideration. Finally, Ashburn. addition, ref sentencing judge should make sufficient the lower court did not indi- justifying the record in why History Category VI erence to the factual cate even Criminal cage, refer inadequate, thereby justifying departure. an in- In this more detailed essential, especially record level from 25 to 29 in ences to the were crease the offense sentences, only prior of the defendant's crimi- reflect the seriousness 10. The Guidelines include conduct, statement). prior history.” (policy in calculat- offenses nal U.S.S.G. 4A1.3 History Category. ing the Criminal U.S.S.G. § 4A1.1. upward 12.The Second Circuit has held history category departure beyond VI explicitly themselves state that 11. The Guidelines compel- justified "only the most would be Category departure beyond History Criminal example, prior ling miscon- circumstances —for egregious, crimi- VI is for the "case of an serious cruelly accompanied ..." United duct wanton guideline range even the nal record in which Cervantes, (2d Cir.1989). 878 F.2d States History Category adequate VI is Criminal not Coe, (2d upward departure judge made of United States v. 891 F.2d 405 Cir. since the 1989), years top applicable the of the the Second Circuit determined that nine over “where a defendant commits a series of simi range. Lambert’s words are not Guideline crimes, elevating type departure im- lar it would be form over empty slogans. The of regard early episodes in posed for strict adherence to substance the the in this case calls ‘prior history1 simply series as its commands. be guilty pled cause the defendant to the last in court, in addition to series, the rather than the first.” Id. at 409- justifying particular steps upward of the prior acts considered justify departure, should be able to the over in the district court the instant case occurred departure. magnitude all of that As the seven, prior six and three months “[bjecause stated, Tenth Circuit who upon pleaded guilty. offenses which Ashburn departs longer strictly no follows the stan analogous His situation is therefore not Guidelines, uniformity is threat dards contemporaneous spree crime faced ened. The relative lack of constraint accom court in in Coe which all the offenses panying departures princi also threatens the occurred within two weeks each other. ple proportionality.” United States v. Thus, argu find in no merit Ashbum’s Jackson, Cir.1990). 921 F.2d improperly ment that court The exercise of restraint and moderateness contemporaneous in considered acts its deci departures in the situation of is therefore of upwardly depart sion to based on the inade great importance. quacy History Category. of the Criminal There has been much written about the appendi- Guidelines and all of its b. Dismissed Offenses ces and commentaries. Some doubt has aris- Ashburn also contends that the sen controlling en as to their in effectiveness tencing improperly court considered the De capacity equalizing crime and in their January cember 1991 and as a robberies sentences based on actual criminal activities. upward departure basis for because this con say requiring specificity it to that Suffice duct formed the basis for the counts of Ash- reasoning judges of district will assure pur burn’s indictment which were dismissed appellate courts fulfill their role as intel- plea bargain. suant to his agree. We ligent capable carrying overseers out the Counts which have been dismissed lofty intentions that animate the Guidelines. plea bargain should not be considered adequately effecting upward

Because the court did not com- departure. United 3553(c) Fine, ply explaining with U.S.C. the States v. 975 F.2d Cir. 1992) (en banc); upward departure, reasons for the we are States Castro- Cervantes, (9th Cir.1990). compelled to set aside Ashburn’s sentence 927 F.2d 1079 resentencing and to remand the case for To allow consideration of dismissed counts explication any upward for more detailed upward departure in an eviscerates the departure appropriate. the court finds bargain. pros Such consideration allows the drop charges against ecutor to defendant Up- 2. Consideration Prior Conduct in guilty plea return for a and then turn around Departure ward against and seek a sentence enhancement very raises three additional concerns charges defendant for the same about the three sentencing hearing. robberies that the court United States v. Cf. Thomas, (3d Cir.1992) upward considered in departure. argument (government each bring address turn. should not be allowed to charges “through

dismissed the ‘back door’ in Contemporaneous a. crimes sentencing phase, previously it when had bring through chosen not to it ‘front complains Ashburn first charging phase.”) door’ have considered the robber they Guidelines, ies contemporaneous because were with Prior to the enactment of the upon the counts placed which he was sentenced. no limits'were on the information a

1347 fashioning acts of misconduct other than the which consider sentencing court could by offense of conviction could be considered a utilized a federal courts The a sentence. court). sentencing delineat- The Commission in which sentencing approach real-offense particular information it found ed any con- sentencing judge could consider which appropriate relevant and for consideration setting whatsoever the defendant duct setting appellate left to the a sentence and sentence, including all offenses committed enforcing courts the role of those limits. dismissed, unin- whether by the defendant dicted, an earlier conviction. or the basis of sum, preservation In of limits on what was, as a system Appellate review under by way courts can consider of leg- The result, dramatically circumscribed. part sentencing is an essential of the struc- Sentencing history of the Guidelines islative that consid- ture of the Guidelines. We find appellate review that the absence indicates eration of dismissed offenses as a for an basis result of the cases was a pre-Guidelines is a upward departure under 4A1.3 breach judges traditional- “sentencing have fact that adopt reasoning of that structure. We impose to almost absolute discretion ly had outlined the Ninth Circuit that sentenc- particular in a any legally available sentence ing court not be allowed to violate the 225, Cong., S.Rep. 98th 2nd Sess. case.” No. worked out between the defendant bargain (1983) in, 149, 1984 reprinted 150 Castro-Cervantes, government. and the 927 3332, U.S.C.C.A.N. Saldana, 1082; v. F.2d at United States (9th 160, 163 Cir.1993); F.3d see also United bring uni- enacted to The Guidelines were Ruffin, States v. 997 F.2d Cir. sentencing. formity predictability to and 1993) (allowing consideration offenses dis Sentencing “are intended to Guidelines bargains prior plea missed enough guidance and control of the afford offenses, charged distinguishing presently court’s] discretion to exercise of district [the grounds on it Castro-Cervantes rationality, and and re- promote fairness than that a defendant who “holds no more sentencing.” disparity, in duce unwarranted pleads guilty receives Guideline Appellate review of sentences effectu- I'd. pleaded.”); crime to he but see which uniformity predictability and ate the desired Zamarripa, 905 F.2d United States to the structure the Guidelines. is essential (10th Cir.1990) (when pleads a defendant sentencing approach This rationalized Id. offenses, of which to one in a series of some of the real-offense included a modification dismissed, upward departure is allow are limiting at sentencing program aimed counts.). on dismissed able based sentencing court could take information a setting account in a defendant’s sen- allowing into The Ninth Circuit has stated 1B1.3, 8; note see tence. U.S.S.G. counts in sentenc consideration of dismissed Sentencing Breyer, Federal Stephen integrity ing “would undermine Compromises Upon Key system ... would se plea bargaining [and] Rest, 1, 11 They 17 Hofstra L.Rev. Which verely of defendants undermine the incentive (“A (1988) sentencing guideline system must plea bargains.” United States to enter into elements, many but not so Faulkner, have some real Cir. unwieldy un- procedurally 1991). that it becomes eighty percent five that close Given system makes such bargained, fair. Commission’s are of federal convictions compromise.”). system to our nation integrity is vital justice. See United system al of criminal modifying approach, the the real-offense Comm’n, Sentencing Supplementary States adopt a refused to Commission Sentencing Guidelines Report on the Initial only charge-offense approach in which pure (1987). Statements, n. Policy at 48 actually charged consid- could be the conduct upon judi- society depends as civil sentencing. It instead limited Just ered in private contracts between cial enforcement of ways information the specific justice individuals, the institutions of setting a sentence. judge could consider Kim, enforcement depend equitable the fair and 682- See United tamper (2nd Cir.1990) with ways plea bargains. We should (setting out the four allowing government may that a court system by [Castro-Cervantes ] the not de- this part upward guidelines from the sentence on bargain bargain and the whole violate its charges.” of the basis dismissed 994 F.2d at bring offenses back in process and dismissed (emphasis original). upward departures purposes of under for the reasoning put by The forward the Fine § 4A1.3. repeating: court bears power has The the person pleads guilty A who under the sen- if it reject plea agreement a does not “ade- tencing guidelines may entitled to ex- quately of the actual reflect the seriousness pect guidelines that he will receive the (policy offense behavior.” 6B1.2 U.S.S.G. sentence, departs not a sentence which statement). Having accepted agreement, upward. guidelines put cap The a on his however, gov- not allow .the the court should exposure, usually statutory well below the spirit to violate if not the letter ernment “the maximum. bargain” by considering dismissed of the contrast, By 975 F.2d at 602. where the departure. upward offenses as a basis for an sentencing court the dismissed considers Castro-Cervantes, at 1082. conduct, by example counts as relevant for grouping stipulated government drugs a amounts of which asserts that subject had been the of counts dismissed contradicts our amendment pursuant plea bargain, to a Fine states argument. al- Commission expectation ... “[t]he reasonable of a sen- provide if tered U.S.S.G. 6B1.2 guidelines, tence accord with the was hon- plea agreement includes a dismissal of by imposed ored on defen- [the charges, agreement, preclude “shall not Id. dant].” underlying charge the conduct such from be- Consideration of dismissed counts as rele- ing provisions considered under vant explicitly by conduct is allowed (Relevant Conduct) § 1B1.3 in connection However, guidelines. considering the bar to count(s) with the of which the defendant is making upward depar- dismissed counts in amendment, govern- convicted.” This important tures remains an limitation argues, provides considering ment basis sentencing approach modified real-offense the conduct of the defendant if even dis- sentencing program. Allowing our current pursuant plea agreement.- missed to a consideration of dismissed offenses would difficulty government’s bring posi type pure with the us much closer to the real- sentencing system explicitly rejected offense case, tion is the dismissed counts upward departures the Guidelines. Such were not counted as relevant conduct set also contradict commit- Commission’s ting Ashburn’s offense level.13 The sentenc maintaining uniformity ment to and fairness ing court instead considered the dismissed sentencing by significantly expanding the upward departure counts in based making acceptable upward bases for depar- inadequacy on the of the defendant’s Crimi S.Rep. Cong., tures. No. 98th 2nd Sess. History Category. nal The Ninth Circuit has reprinted at 150 in 1984 U.S.C.C.A.N. at distinction, precisely allowing observed think that the overall ends of the consideration of dismissed counts in the case Sentencing Guidelines are best served conduct, upward relevant but de prevents government, rule which Fine, partures pursuant §to 4A1.3. See 975 sentencing judge, considering from counts F.2d at 602-03. In United States v. McAn pursuant plea bargain dismissed in re- inch, (9th Cir.), 994 F.2d 1380 cert. de questing carrying upward depar- or out an —nied, -, U.S. 114 S.Ct. ture under 4A1.3. (1993), L.Ed.2d 342 the court found that Unreliability e. of Prior Evidence Con- dismissed counts could be considered as rele duct 1B1.3(a)(2). vant conduct to section distinguish the court was careful to Ashburn final raises a contention re “previous holding garding

and reaffirm the court’s propriety upward depar- of his robbery, 13. Ashburn was convicted of bank considered within the relevant conduct of non-groupable which under the is a 1B1.3(a)(2). U.S.S.G. Thus, offense. the dismissed counts could not be culpability because those dant’s. conduct or upward departure claims that ture. He product passages may be the well and there- information unreliable is based shift, blame, spread desire to or codefendant’s § 4A1.3. be considered cannot fore himself, favor, curry atten divert avenge only con- evidence contends tion to another.” 985 F.2d in the considered him to the offenses necting Cir.1993) Illinois, (quoting Lee v. 476 U.S. accusa- the unsworn departure was upward 530, 545, 106 2056, 2064,90 L.Ed.2d 514 S.Ct. co-defendant, English. Unsworn tions of his (1986)). prior aside the Because we have set not ‘sufficient generally “do bear assertions sentence, on remand can evaluate the court proba- reliability support [their] indicia whether, light precedents in of these therefore, gen- not and, should accuracy’, ble the co-defendant’s testi the circumstances of in trial court erally considered the mony through agent, FBI the sufficient evi States findings.” factual making its support finding as to dence exists to a factual Cir.1990) (5th 962, 966 Alfaro, 919 F.2d v. previous these robberies. 6A1.3(a)). (quoting U.S.S.G. However, has a district court III. Conclusion reliability of evaluating the wide discretion opinion a number of ele- This discusses it and mak presented before the information many of the and its satelli- ments or not to as to whether ing the determination holding disquisitions. te We affirm the Kinder, 946 consider it. United regard court to the two level the lower with — denied, Cir.1991), cert. express for threat of death as enhancement -, L.Ed.2d 394 S.Ct. U.S. artificially limit we- see no reason to the (1992). only deter court need The district the defendant’s crime to the commission of findings by “preponderance a factual mine its actually when is in the bank. moments he sufficiently reliable evi relevant and Next, Congress not the because did provide Alfaro, F.2d at 965.14 de dence.” provisions for use as a “set aside” of the YCA proving that bears the burden fendant carrying out a life of protective shield in sentencing is against him in used evidence crime, prior YCA convictions were Ashburn’s untrue, or unreliable.” “materially inaccurate calculating properly counted in his criminal 202, 204 Angulo, 927 F.2d United States history category. Cir.1991). findings ... “Specific factual First, holdings. final we There are two only clear error.” appeal for are reviewed obligation sentencing court has an find that a Id. at 205.15 justifications legal explain factual or holding regard to dismissed with Given our departure from 78 to guideline for January counts, the December 1991 any It not take stretch months. does consideration are unavailable for offenses that this is a imagination to determine However, the upward departure. making an departure, and if not radical significant, in the participation allegations of Ashbum’s depart- legal requirement impose a as the at- robbery in Florida as well for that judge provide legal explanation bank ing for evalu- Second, only remain available tempted robberies it is we hold diversion. assessing adequacy of the Crimi- that counts dis- ation circumstances under unusual History Categoiy. agreement can be plea nal missed foreground pun- brought again into con- court nevertheless The district ishment; party for- allow one cannot fac- objections to these the defendant’s sider agreement the other to which sake longstanding findings light of the tual remained faithful. party has unreliability of un- presumptive suspicion and In the lower court Unit- The sentence set of co-defendants. sworn statements is RE- Flores, and this case that confessions therefore VACATED we held ed States resentencing in accordance “presumptively unrelia- MANDED of co-defendants are opinion. detailing with this passages the defen- as to the ble has failed to show challenge We note that Ashburn Alfaro, 15. we denied a defendant's In findings by English where factual were untrue. to the the defendant "did not hearing court's statements made evidentiary request testify, English herself did not because issue, he submit affidavits on the nor did testimony possi- of her no cross-examination testimony the evidence sworn to rebut or other ble. pre- in the officer’s affidavit contained report." 919 F.2d at 966. DAVIS, Judge, deciding Circuit depart W. EUGENE whether to because of concurring part, dissenting part: history, defendant’s criminal subsection (e) expressly the court authorizes to consider totally agree majority I with “prior similar adult criminal conduct not re- so the case should be remanded district court sulting in a criminal conviction.” Neither give consideration to its can further sentence. guideline commentary suggests nor its majority, on remand I Unlike would exception prior that an exists for similar considering foreclose the district from subject criminal conduct that is the of dis- upward departure in the calculus the missed counts an indictment. charged bank robberies the defendant was nothing Because plea agreement committing with in Counts 1 and 2 of this guidelines prevents the district court indictment. considering from underlying the criminal acts majority reflects, opinion As the the cir- counts, require the dismissed I would not split question. major- cuits are over this district eyes to close his to this con- ity opinions relies on the the Ninth and duct. hold, Third Circuits.1 These cases as do the majority, get defendant does not ORDER bargain plea benefit of his when the district 1994) (July upwardly departs based on the dis- agree missed counts of the I indictment. BY THE COURT: with the Second and Tenth Circuits2 that no majority Judges service, A in active reasonable basis exists for a defendant who motion, on the having Court’s own deter- guilty plea enters a to believe that the court banc, mined to have this case reheard en cannot use the criminal conduct from IT IS ORDERED that this cause shall be the dismissed counts of the indictment reheard argu- the Court en banc with oral enhance his sentence. Ashburn’s bar- ment on a date hereafter to be fixed. The gain language had no that could have led him specify briefing Clerk will schedule provided to that conclusion. It gov- filing supplemental briefs. ernment would dismiss two of the counts and government fully complied with that obli- gation. nothing

I also find in the them-

selves that would lead defendant to reason- ably expect that underlying the conduct Joseph WALTON, as next friend of dismissed counts could not be used to en- Christopher Walton, minor, general hance guideline his sentence. The Plaintiff-Appellee, authorizing departure, § 5K2.0 does so in very broad terms. It authorizes the court to ALEXANDER, al., Defendants, Alma et impose a guideline sentence outside the range if the court finds “that there exists an Alexander, Defendant-Appellant. Alma aggravating mitigating circumstance of a No. 93-7313. kind, degree or to a adequately taken into consideration Com- United Appeals, States Court of ” formulating mission in guidelines.... Fifth Circuit. specifically, More 4A1.3 authorizes a court to May 1994. depart “[i]f reliable information indicates that Granting Rehearing Order the criminal category does not ade- En July Banc quately reflect the seriousness of the defen- past dant’s criminal conduct or the likelihood the defendant will commit other ” crimes,.... Fine, Kim, (2d

1. United States v. 975 F.2d 2. United States v. 896 F.2d 678 Cir. Cir.1992) (en banc); United States v. 1990); Castro- Zamarripa, United States v. Cir. Cervantes, (9th Cir.1990); 927 F.2d 1079 1990). Thomas, (3d Cir. 1992).

Case Details

Case Name: United States v. Philip Scott Ashburn

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 1, 1994

Citation: 20 F.3d 1336

Docket Number: 93-1067

Court Abbreviation: 5th Cir.