*2 BRORBY, Circuit Before BALDOCK McWILLIAMS, Circuit Judges, Senior Judge.
* 34(f); record, Fed.R.App.P. argument. oral See appellate without examining After the briefs therefore ordered The case is unanimously 10th Cir.R. 34.1.9. panel to honor has determined argument. oral without request the briefs submitted parties’ for a decision on
BRORBY,
Judge.
The district court sentenced
Okane
Circuit
imprisonment
262 months
on each of the ten
appeals
Dee Okane
Defendant Robert
armed bank
counts with those sen-
interpretation
application
district court’s
concurrently.
tences to be served
The dis-
provisions
of various
*3
trict court also sentenced Mr. Okane to five
upon
upwardly
in
that were relied
Guidelines
years imprisonment on each of the two fire-
departing
applicable
otherwise
from the
charges,
consecutively
arms
be served
jurisdiction
guideline range.
arises un-
Our
consecutively to the sentences
each other and
der 28 U.S.C.
1291 and
U.S.C.
imposed
robbery
appeal,
on the
counts. On
3742(a)(2),
vacate the sentence im-
and we
only challenges
Mr. Okane
the sentences im-
re-sentencing.
posed
remand for
and
counts,
posed
robbery
asserting
on the ten
those sentences resulted from an erroneous
application
sentencing guidelines.
In
BACKGROUND
claims,
order to address Mr. Okane’s
Okаne,
Okane,
Robert
his brother Walter
methodology
must first understand the
used
Blacketer,
Thomas J. Gieseke and William L.
by
calculating
the district court in
Mr. Ok-
were involved in a series of armed bank
ane’s sentence.
federally
robberies of
insured financial insti-
presentence report
The
set Mr. Okane’s
City,
in
tutions
and around the Kansas
Mis-
adjusted
combined
offense level at 37 under
par-
souri area.1 Robert Okane admitted his
adjustment
multiple
count
of U.S.S.G.
ticipation
twenty
in a total of
three robberies.
§ 3D1.4. After a three-level downward ad-
subsequently charged
The defendants were
justment
acceptance
for Mr. Okane’s
of re-
informations,
by
supersеding
and later
infor-
sponsibility,
adjusted
his
offense level was
mations, in
court in
federal district
Kansas.
presentence report
set at 34. The
de-
then
Each defendant
thereafter entered into a
history
termined Mr. Okane’s criminal
cate-
plea agreement
they agreed
where
to waive
gory
should be level I. The
plead guilty
indictment and venue and
guideline range for an individual with a total
superseding
certain counts of the
informa-
offense level of 34 and a criminal
exchange
tions in
for dismissal of the remain-
category
impris-
of I is 151 to 188 months of
ing counts.
however,
sentencing,
onment. At
the district
court, in accordance with the
plеa
recommenda-
Under
the terms of Mr. Okane’s
in
presentence report, departed up-
tion
agreement,
plead guilty
he would
to all
guideline range by making
ward from this
superseding
twelve counts of the
information.
two alternative
calculations.
one,
through
Counts
three and five
twelve
charged Mr. Okane with the armed bank
As we understand the district court’s first
federally
in
ten
insured banks
ruling,
upwardly departed by
the court
in-
Missouri,
Kansas and
in violation of 18 creasing
by
Mr. Okane’s offense level
three
2113(d).
2113(a)
§§
U.S.C.
counts
levels, from 34 to 37. The district court
four,
charged
two and
Mr. Okane was
separate
made three
increases to Mr. Ok-
using
carrying
during
in
a firearm
ane’s offense level. The first increase was
violence,
relation to a
crime of
violation of
attributed to the fact that Mr. Okane’s of-
924(e).
§§
exchange
2 and
U.S.C.
only
fense level was increased
five levels
pleas
guilty,
government
his
agreed
3D1.4,
though
pled
under U.S.S.G.
even
he
pursue prosecution
not
remaining
on the
guilty
separate
to ten
bank robberies. The
thirteen bank robberies which he admitted
prior
second increase was based on
un-
involvement,
agreeing
charged
well as
not to
similar adult criminal conduct under
particular
4A1.3(e).
advocate a
sentence and not to
This
was
oppose
acceрtance
three-level reduction for
partic-
warranted
Mr. Okane’s admitted
responsibility.
ipation
in the thirteen additional bank rob-
Okane, along
tively,
disposed
unpublished
1. Robert
with Messrs. Gieseke and
were
of in
orders
appealed
Blacketer have
judgments
their sentences in these
filed this date. Walter Okane has
companion cases. Mr. Gieseke and Mr. Blacket-
appealed
not
his sentence.
93-3283,
appeals,
respec-
er’s
Nos. 93-3273 and
may depart
from the
A
and final increase
The third
beries.
only if
to cer-
sentence
it ‘“finds that
psychological
on extreme
based
robberies,
mitigating
aggravating
an
or
vаrious bank
there exists
tain victims
kind,
the Guide-
degree,
§ 5K2.3 of
or to a
to U.S.S.G.
circumstance of a
pursuant
departure,
three level
After this
adequately
lines.
taken into consideration
to 262
sentencing range became 210
Okane’s
formulating
Commission
imprisonment.
months
guidelines that should result
a sentence
” White,
that described.’
different from
alternative,
court indi-
In the
(quoting 18
I to level
(citations omitted).
Tisdale,
962
7 F.3d at
his criminal his-
category underrepresented
I
tory
of his admitted involvement
because
circum
If
find the existence of
uncharged robberies.
additional
thirteen
warranting
departure,
a
stances
second
court observed the
The district
analysis
a factual
step of the
involves
review
level of
range
with an offense
for a defendant
cir
whether
to “ascertain
record
III
history category of
a criminal
35 and
by
cumstances cited
the district
months,
range applicable
the same
262
210 to
actually
in the instant
justify departure
exist
an offense
of 37
a
with
to defendant
White,
(emphasis
at 278
893 F.2d
case.”
history category of I. Over Mr.
a criminal
added).
will not disturb a district court’s
We
then
objections, the district court
Okane’s
findings that circumstances warrant
factual
imprisonment
months
him to 262
sentenced
particular
case
ing
departure exist
a
a
counts,
to be
the ten
on
each
id.
showing of clear error. See
absent a
concurrently.
appeal, Mr. Okane
On
served
3742(e));
(citing 18
accord United
U.S.C.
challenges
aspect of the
each
(10th Cir.),
983, 990
v.
899 F.2d
Keys,
States
upward.
depart
decision
denied,
160, 112
111 S.Ct.
cert.
498 U.S.
(1990).
finding of
“A
fact
L.Ed.2d 125
DISCUSSION
clearly
only if it is “without factual
erroneous
I.
record,
reviewing all
or if after
support in the
analyzing
propriety of a dis
In
we are left with
definite
the evidence
depart upward, we
decision to
trict court’s
mistake has been
firm
that a
conviction
”
process, which
review
apply
Chavez-Palacios,
a three-tiered
States v.
made.’ United
White,
States
we first enunciated United
(10th Cir.1994) (citation
1290, 1295
30 F.3d
Cir.1990).2
(10th
Under
277
F.2d
893
omitted).
White,
requires us to examine
step one
de-
having
that some
Finally,
determined
to determine
de novo
whether
record
legally appropriate, and that
parture is
the exis
рroperly
district court
identified
support
case
such
particular
facts of a
warrant
appropriate
circumstances
tence
analysis re-
step in the
departure,
third
v. Tis
ing
departure. See United States
degree of
whether the
quires us to determine
(10th Cir.1993),
dale,
cert.
7 F.3d
962
—
actually imposed
denied,
-,
114
127
S.Ct.
U.S.
White,
F.2d
893
See
(1994); White,
court was reasonable.
at 277-
L.Ed.2d
3742(e)(3));
see
(citing 18 U.S.C.
at 278
two-step approach. See United
analysis
dorsed a similar
is consistent
three-tiered
White
2. Our
Tsosie,
Supreme
decision in Williams v.
1440 n.
Court’s
States v.
201-03,
States,
Cir.1994)
503 U.S.
(discussing why
United
and White
Williams
(1992),
1112, 1120,
which en-
L.Ed.2d 341
Tisdale,
(collecting
being
also
II.
offense,
subsequent
stant
crimes.” For
reviewing
a district court’s decision tenbury,
917 F.2d at
origi
depart
applicable
from the otherwise
nal).
guideline range, we must be careful not to
depart
But when a court seeks to
blur the distinction between offense level de
upward based on circumstances not tied to
partures
history departures,
criminal
conviction,
specific
offense of
then de
recognized
prior
distinction well
our
parting by way of the defendant’s offense
See,
Flinn,
e.g.,
cases.
States v.
United
ordinarily improper.
level is
Our ease law
1497, 1500,
Cir.1993);
сircumstances,
holds that under those
in
Fortenbury,
States v.
creasing
the defendant’s criminal
cat
(10th Cir.1990).
principle,
We reiterate the
egory
appropriate
is the
departing
means of
Guidelines,
basic to the
that “[flactors consid
Thornton,
upward.
1494;
See
922 F.2d at
in departing
applicable
ered
from
Jackson,
Moreover,
ness of
court next increased
The district
public,
deterrence,
ment,
protection
point
on the
level one
based
Okane’s
*6
sentencing pat
treatment,
the
in
correctional
which
bаnk robberies
uncharged
thirteen
Guidelines,
to avoid
and the need
tern of the
While
participation.
admitted
Mr. Okane
Flinn,
sentencing disparities.”
certainly a
unwarranted
conduct is
uncharged criminal
omitted);
(citations
see also
1501
987 F.2d at
upward departure,
see
for an
valid basis
first of
1099. “‘The
Kalady,
by
F.2d at
4A1.3,
941
erred
§
district court
the
U.S.S.G.
proffered
factors —the district court’s
by increasing
these
Mr. Ok
upwards
departing
departure
an
degree of
for the
level,
reasons
his criminal
opposed to
ane’s offense
—is
Tsosie, 14 F.3d at
requirement,’”
absolute
category.
history
(citation omitted),
may con
“[w]e
1443
our
statement
We reiterate
only
of reasonableness
the other indicia
sider
conduct re
“[p]rior criminal
that
Thornton
Jackson, 921
requirement
is met.”
if this
crimi
adequacy of
flecting
defendant’s
on the
F.2d at 990.
an
basis for
provide
the
category
nal
does
Thornton,
922
departure.”
level
proffered
district court’s
We find
offense
a dis
original).
When
(emphasis
1494
at
Mr. Okane’s
which was
departing,
reason
on
upwards based
depart
to
trict court seeks
other rob
guilty to five
pleas of
additional
4A1.3(e)
grounds
on the
§
of
Guidelines
warrant
legally
to
charges, is
sufficient
bery
history
score
Furthermore,
criminal
the defendant’s
that
upward departure.
level
a one
histo
underreprеsentative of the defendant’s
referred
of reasonableness
the other indicia
conduct,
should
ry
criminal
depar
of
this
support
conclusion
to above
by way
an
ordinarily5
of
enhancement
be
bank
Armed
was reasonable.
ture
history category.
criminal
crime,
serious,
which
violent
is a
4A1.3,
§
it was
amendment
recurring
Prior to
potentially
situation
5. There is one
depart
sentencing court
towas
how a
unclear
be accom-
§a
4A1.3
would
where
the de-
history
when
score
criminal
increasing
offense
way
the base
plished by
of
Courts,
already
VI
a level
offender.
was
exception
fendant
represents an
situation
level. This
court,
set formula
including
indicated no
this
departures are
§
general
rule
4A1.3
"continuing conun-
this
appropriate and left
his-
was
increasing
criminal
the defendant's
made
sentencing courts.
to the
drum”
discretion
tory category.
upwardly-
changes
this
the district court
ed behavioral
that she attributes to
departed because it believed the defendant’s
this incident. Another victim of one of the
history category
underrepre-
criminal
was
preexisting anxiety
robberies stated that her
entirely
proper
sented.
This
under
disorder has been exacerbated
inci-
4A1.3(e)
p.s.
4A1.3. See
&
psychologist
dent and her
believes she has
applying §
depart by
But
4A1.3 to
offense
aggressive
become more
as a result of these
level,
history score,
than
rather
criminal
robberies.
error.
5K2.3,
A
premised
psychological
on serious
Finally, the district
upwardly depart-
victim, qualifies
ground
as a
for an of
ed one level under
5K2.36 for extreme
fense level
depar
“The bases for
psychological injury to victims of these bank
§§
ture listed in U.S.S.G.
5K2.1-5K2.15 all
robberies. The district
primari-
court relied
offense,”
aspect
involve
some
the instant
ly
findings
presentence
on the
report
therefore, departure
by offense level is
victim
one
of one of the robberies had a
approрriate.
Fortenbury,
see readily apparent id. It thus becomes havior the §to amendment 4A1.3 has eviscerated our state Newman, ment in Russell may that the 7. See also United States v. 965 F.2d depart by (7th Cir.) offеnse level when defendant is (affirming the de- court's injury clearly er- psychological is “extreme” district court’s the Moreover, agree with we roneous. one, the term that implicit an finding, albeit a respect to §
“victim,” in 5K2.3 as used logic § of 5K2.3 Both the text the of employees robbery, includes bank may sentencing court a mandate that before See United customers. as well bank section, there this upwards under depart (6th Bond, 662, 671-72 22 F.3d v. States (1) nature of of: the some evidence must be Lucas, Cir.1994) v. (discussing United States victims in actually by the injury suffered the Cir.1989) (6th and acknowl 697, 700 (2) injury psychological of a bank “victim” general, edging that in of the commission “normally resulting from employees of the bank robbery includes p.s. These 5K2.3 the offense.” v. also United States present);’ see customers in en fact that flow from the requirements (im Cir.1991) (10th Lanzi, 5K2.3, did not au Commission acting of a bank a “victim” that recognizing plicitly upwards depart sentencing courts to thorize includes, of purposes for victim, injury to the any psychological for 2B3.1(b)(3), employee); accord bank based rather, only allowed but Muhammad, 948 F.2d v. States inju psychological finding of “extreme” on a (“victim” Cir.1991) of a bank evidence of Thus, be some ry. there must 2B3.1(b)(3) includes em robbery under to enable order these elements both of denied, cert. present), customers рloyees and to determine whether 1239, 117 L.Ed.2d 502 U.S. serious, sufficiently actually injury suffered Hoyungowa, (1992). United States incurred, injury Cf. normal to the relative Cir.1991) (limiting the 744, 747 warrant of “the direct victim § 5K2.3 to application of occasion to only other had one have We by the affected not to others the crime” and In Za- 5K2.3. application of discuss family; not defin crime, as the victim’s such court’s concluded marripa, we “the direct victim parameters of ing the suffered extreme had finding that the victim crime”). was 5K2.3 psychological com- was This conclusion clearly erroneous. an permits 5K2.3 Section stipulation parties’ pelled it level because involves by offense not state treating victim could therapist of conviction. to the offense a factor related than greater to the victim harm Thus, step at 479. Fortenbury, 917 F.2d See at 341. Zamarripa, 905 normal. See must now We is satisfied. of our review one “normal” of the lack evidence on the Based a factual basis there is whether examine injury, held the district we level of upward. depart decision the district court’s by the rec- unsupported finding of fact was determination, are mindful making this Id. clearly erroneous. ord and proving, burden government’s that it is the evidence, factually distin- Zamarripa that the Although by preponderanсe employed in that reasoning an case warrant guishable, of this factual circumstances *8 government The Za case. applies States v. in this case departure. See United upward Cir.1990) Zamarripa be- (10th 337, carry its burden failed F.2d 341 marripa, 905 sentencing provided Kirk, not the F.2d it had 894 cause (citing United States of level of the normal Cir.1990)). any evidence (10th are we certain court While 1164 these circumstances. by incurred under injury incurred to the trauma ly sympathetic assuming pre- case, the robberies, even present In our the victims of these several sufficient evidence report contains of the absence sentence rеcord discloses review of the actually suffered injury of to establish “normal” level any as to the evidence findings any of is devoid the record this to a victim attributable psychological results injury that of level the normal Therefore, as to the district robbery. of a bank n Thus, in Za- circumstances. these victims suffered finding that these court’s Astorri, F.2d (1992); States v. rais depart upward 5K2.3 under cisión ing denied, -U.S. -, (same). Cir.1991) (3d points), cert. two offense level defendant’s 121 L.Ed.2d matnipa, finding district court’s that ing a thus, bank and victims psychological finding suffered “extreme” in clearly is erroneous. jury unsupported by the record. See The district court also concluded Fawbush, United States v. 586- history a category criminal underrepre of I (8th Cir.1991) (evidence before the district sented Mr. history Okane’s criminal and that support finding was insufficient to a departure from level I to level III was that psychological injury incurred “ex warranted. We believe Mr. Okane’s involve normally ceeded that particu endured” in a ment in uncharged thirteen additional bank case). type lar of But United States v. cf. clearly robberies is a sufficient factor on Passmore, Cir.1993) which sentencing may upwardly de (citing proposition cases for the expert part, thus, step and one is satisfied. More testimony required is not to establish emo over, Mr. Okane admittеd he was involved tional young trauma to a victim of a sexual robberies, such, these additional and as there assault may rely because court on common is a factual departure. for basis There experience); (McMillan, sense and id. at 939 fore, we must degree determine whether J., dissenting) (refusing speculate or as of I level to level III —was —from sume that psychological injuries the victim’s reasonable. sufficiently were obvious severe to come assessing of reasonableness within holding 5K2.3 and there was no degree departure, of par we have been support evidence to the district court’s findi ticularly demanding courts and ngs).8 implored have them precise to be in their summarize, To the one level increase based reasoning analysis why they selected a §on proper reasonable; 3D1.4 was particular criminal category. We re one level increase based on 4A1.3 im- cently stated: proper law; as a matter of and the one level [d]espite repeated our instructions that a increase based on unsupported 5K2.3 ‘district specifically court must articulate the record in this determining case. Before degree reasons departure,’ however, whether remand necessary, we Flinn, 987 F.2d at the district court examine the district court’s alternative rul- merely the instant case legal stated the ing. and factual bases for departure, its offering any
without analysis supporting- its increase in the level of B. ... When the district court fails to [ex- The district court’s ruling alternative in- plain reasoning], its we hypothesize cannot creased Mr. Okane’s offense point level one as to the reasoning might have been under 5K2.3 and increased employed by court.... history category from I level III before, As we held “[m]erely have ex-
based on
uncharged
the thirteen
robberies.
plaining “why departure
was made does
We address each of thesе issues in turn.
separate
fulfill the
requirement of stat-
As for
the offense level
ing
imposing
reasons for
particular
”
5K2.3,
hold this
unsupported
sentence.’
[United
Kelly,
States v.
by the record in
this case for
Cir.1993)
the reasons
(quoting
]
stated above. There is
Flinn,
no evidence
1502).
as to the
987 F.2d at
Kelly
“normal” psychological injury
Flinn,
incurred dur-
we were forced to remand because
*9
Although
8.
require
this case does not
us to ad
there is
evidence before the
court
dress the
prosecution might
manner in
the
"possessing]
which
a minimum indicia of trustworthi-
attempt
carry
to
demonstrating
its
Cook,
burden of
the
ness.” United States v.
296
injury,
(10th
"normal”
Cir.1991).
so,
level of
we
that
note
reliance on
If
may
then that information
expert
sufficient,
an
likely
witness would
be
upon by
but
be relied
the
court in deter-
Ellis,
necessary.
not
See United
mining
States v.
propriety
935
the
particular
of a
sentence.
(1st Cir.),
denied,
F.2d
Ortiz,
n. 12
396
cert.
502
See United
v.
States
F993 2d
(1991).
U.S.
(10th Cir.1993)
837 why of the question the critical not address pre- provided a had not courts the district a more category III was court felt respective selec- district methodology for their cise I, category other category than history cate- appropriate criminal particular a tions of agreement of conclusory statement a than gory. recommendation. probation officer’s with the (10th Yates, 990 v. States United impossible explanation, “it is an such Without to fails Cir.1994). court the district When rea- was the sentence whether to determine the specificity, and precision explain, with Tsosie, F.3d at 1443 14 sonable.” se- reasoning it utilized in methodology and Pool, F.2d added) 937 States v. (citing United category history criminal lecting particular a Cir.1991)). 1528 been forced have departing, we upwardly in resentencing. for the case to remand inability review to our Given case, a in this pres departure in the degree of of the record court’s A review necessary. On resentencing of deficien types is the same for reveals remand ent case The court eases. prior remand, reasons “[t]he our we note found we have cies its departure should be degree two statements of made its gives court for district of upward. inadequacies “[T]he an ruling departing in terms of alternative ‘couched ” history history category.’ criminal the defendant’s or criminal finds fense level Court prior crim (quoting his underrepresents Tsosie, category of at participated Roth, Cir. defendant activity. The inal States that 1991)). prior approval robberies bank our armed also additional We reiterate if he had аnd character charged “analogies in this to of offense were not of use history those, and levels, history categories, criminal of criminal been convicted istic court then The to deter guidelines one.” principles not have been would other probation offi departure.” degree with agreement appropriate stated its mine the histo “a criminal Roth, that 252. F.2d at cer’s recommendation repre appropriately 3 more ry category of prior criminal conduct.” sents his CONCLUSION more, do statements, simply without These de- exposes several discussion above The explication type of detailed not constitute application court’s in the district fects in a mean- engage permit us to to required to the Guidelines provisions of various de- decision to of whether
ingful review ease. facts of Mr. complex Okane’s somewhat reasonable. I to level III part from level errors, REMAND of these Because Flinn, “the district Yates, Kelly, and inAs to VACATE instructions court with district for a rationale furnish detailed failed to court in a and to resentence sentence Mr. Okane’s level, criminal selecting particular opinion. inconsistent manner justi- reasons on its initial relied instead but Yates, 22 F.3d at fying departure.” Judge, McWILLIAMS, Circuit Senior cirсumstances, such Under result. concurring in the the deference give are unable [w]e deci- a court’s be ordinarily accorded district should sentence that agree I Okane’s be- departure ... degree of Howev- for the resentenced. sion be he vacated an justification Sentencing court’s that the er, cause view of the firm I am supply where, by itself as does not contemplate that upward do not Guidelines depar- degree specific court, 18 U.S.C. for the here, a rationale a district court, 5K2.0, we, reviewing selected, 3553(b) ture Guideline rationale. supply that are not able make an decides by prior dеter- range (“It established Jackson, F.2d at 993 Id.; see also base aof defendant’s mination a district what to determine not our task dis- history category, that could for a explanation upward de- making such may, in trict be.”). sen- record shows All the back, raise speak, and go so parture, appro- an III was tencing believed level *10 level, or base offense defendant’s simply does The record priate both, history category, or and then arrive at
a second and guideline “brand new” range
dramatically in original excess of the guide- range.
line The district court simply should
depart upward guideline from the range, as
established, give its reasons therefor. Guideline provides 5K2.3 if a victim suffers psychological injury
much more serious normally than that result-
ing offense, commission “may increase the sentence
above the guideline range.” authorized That
guideline, view, my its own terms sim-
ply court, authorizes a district if it finds psychological injury,”
“serious to “increase
the sentence above the guideline authorized
range,” but does not authorize a district
court to factor the “serious psychological in-
jury” into a recalculation of the base offense
level and up then come with a second and
“brand new” range, much in excess original guideline range.
Toby ESPINOZA, J. Plaintiff-Appellant,
UNITED America, STATES of
Defendant-Appellee.
No. 94-1438.
United States Court of Appeals,
Tenth Circuit.
April