The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Nov. 16, 2009
No. 09-11776 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00035-CR-WLS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS RICHARDSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(November 16, 2009)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Dennis Richardson appeals his 60-month sentence for knowingly possessing
counterfeit Federal Reserve notes, in violation of 18 U.S.C. § 472. He contends
that his sentence was unreasonably excessive based on a four-level upward
departure in his offense level. He further argues that his sentence was greater than
necessary to achieve the sentencing purposes set forth in 18 U.S.C. § 3553(a).
Upon careful review of the record, we AFFIRM.
I. BACKGROUND
In December 2008, Richardson pled guilty to count two of an eight-count
indictment. Count two charged Richardson with possession of counterfeit federal
reserve notes, in violation of 18 U.S.C. § 472. Pursuant to the written plea
agreement, Richardson stipulated to the following facts. In January 2008, Cartrice
Glivens was arrested when she attempted to use counterfeit Federal Reserve Notes
at a sporting goods store in Albany, Georgia. Glivens identified Richardson as the
supplier of the counterfeit bills. During a subsequent search of Richardson’s
residence, authorities discovered numerous counterfeit Federal Reserve Notes in
various denominations. The serial numbers on these bills matched those used by
Glivens. Richardson had also previously cashed three counterfeit checks at
Homerun Foods in Albany, using a fake identification card. Upon his fourth
attempt, the clerk recognized Richardson and notified the police.
The presentence investigation report (“PSI”) listed twelve convictions for
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Richardson beginning in 1989 when he was twenty years old. Based on eight of
those convictions, including six for theft by receiving stolen property, Richardson
had a criminal history score of 23. Three points were added to this score pursuant
to U.S.S.G. §§ 4A1.1(d) and (e) because Richardson committed the instant offense
while under a sentence of probation and less than two years after release from
confinement. The total criminal history score of 26 placed Richardson in Criminal
History Category VI. In conjunction with Richardson’s total offense level of 13,
his advisory guidelines range was 33 to 41 months of imprisonment.
The probation officer found reliable information, however, to support an
upward departure under U.S.S.G. § 4A1.3. Such a departure was warranted based
on (1) Richardson’s 23 criminal history points, nearly double the minimum amount
of 13 points needed for category VI; (2) the existence of four other convictions not
included in the criminal history score; (3) Richardson’s long history of continuous
fraudulent criminal activity; and (4) his plethora of probation failures. These
factors indicated that the criminal history category of VI did not adequately reflect
the seriousness of Richardson’s past criminal record or the likelihood that he
would commit other crimes.
At his sentencing hearing in March 2009, the government agreed with the
PSI that a basis for an upward departure existed but made no recommendation one
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way or the other. The government suggested that a three-level upward departure
would be appropriate if the court decided to apply one. Richardson objected to an
upward departure on grounds that the nature of his prior offenses were non-violent,
relatively minor, and mainly involved items of relatively small value. He also
emphasized that a three-level increase would be too harsh given that less than
$5000 of counterfeit money was recovered from Richardson’s residence.
Richardson suggested that he instead be given more restrictions on supervised
release. The court responded to Richardson’s objection as follows:
THE COURT: All right. Well, the Court has considered the recent
submission on that objection from counsel as well as the arguments
made today. The Court need not go back into the particulars of the
Criminal History. As counsel said, it is what it is. The Court notes
that there are 23 history points – Criminal History points because of
those things that are specifically set out in the Presentence Report.
The Court finds that probation office exactly – is exactly right,
that those – that Criminal History does not adequately reflect the
seriousness of the defendant’s Criminal History and would support or
justify an upward departure, if the Court determined that’s what it
should do. I think that’s exactly what it is intended to do to
distinguish those cases where there’s a substantial history that really
goes beyond the mere baseline.
If you take into account the fact that the defendant was on
probation and had been incarcerated less than two years prior to this
offense occurring, he has 26 points, which is twice as much as the
baseline to be a Category 6 career offender. So in that effect, he
stands head[] and shoulders above someone who just meets that
criteria.
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So I think the applicability of that provision is met, if the Court
were to determine that’s what it desired to do. So to the degree the
objection is that it would not be justified or would not authorize the
Court to do so, the objection is overruled.
R6 at 89-90. Richardson, through counsel, then addressed the court, remarking
that being in prison on his fortieth birthday had made him reflect on his life, and
that many of his crimes were due to his drug use and association with the wrong
crowd. Richardson also noted that it was his first federal offense, and he had
accepted responsibility for the crime.
Before imposing sentence, the court noted that Richardson had been given
many chances at probation but had squandered them by continuing to commit
crimes. Even though Richardson had not physically injured others, the court
admonished that his history of theft and fraud could still damage business and
individuals and do “great harm to society.” Id. at 97-98. The court also expressed
concern that Richardson had never recognized that his actions carried
consequences and that he would continue to commit more crimes.
The court then found that criminal history category VI significantly under-
represented the seriousness of Richardson’s criminal history. “After carefully
considering each incremental increase in the offense level,” the court departed
upward by four levels to a total offense level of 17, resulting in a new applicable
range of 51 to 63 months. Id. at 103-04. The court sentenced Richardson to 60
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months of imprisonment to run consecutively to his state sentences, three years of
supervised release, and restitution in the amount of $1,111.90. The court gave the
following reasons for its sentence:
Now, the Court believes that a sentence of 60 months is an
appropriate sentence in this case, and that’s not just due to the amount
– the relatively small amount, rather, of the fraud in dollars in this
case as I said to you earlier. But it’s because it reflects a continuing
extensive fraudulent conduct and because you have had many
previous opportunities in the past by being given probationary
sentences and/or short periods of incarceration, but yet have continued
in this conduct, and that being fraudulent conduct. So in view of that
history and conduct, the Court finds that a 60 months sentence, in the
Court’s view, is appropriate and justified.
Now, the Court determines, as I said, the sentence as imposed is
an appropriate sentence, that it complies with the factors that are to be
considered as set forth at 18 United States Code Section 3553(a), and
adequately addresses the totality of the circumstances.
Id. at 106-07. Richardson objected to the sentence on grounds that it was greater
than necessary to comply with the factors listed under § 3553(a).
On appeal, Richardson argues that his sentence was unreasonable because
the district court abused its discretion in applying an upward departure under
U.S.S.G. § 4A1.3. Richardson also asserts that his sentence is excessively harsh
because the district court did not properly account for all the factors in 18 U.S.C.
§ 3553(a).
II. DISCUSSION
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We review sentencing decisions, including a decision to depart from the
Sentencing Guidelines, for abuse of discretion. See United States v. Shaw, 560
F.3d 1230, 1237 (11th Cir. 2009); United States v. Smith, 289 F.3d 696, 708 n.15
(11th Cir. 2002). A sentence must be both procedurally and substantively
reasonable. See Shaw, 560 F.3d at 1237. Procedural reasonableness means that a
district court correctly calculated the advisory guidelines range, considered the
§ 3553(a) factors, relied on facts that are not clearly erroneous, and adequately
explained the chosen sentence. See id. A sentence is substantively unreasonable
“if it does not achieve the purposes of sentencing stated in § 3553(a).” United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks and citation
omitted). Those purposes include reflecting the seriousness of the offense,
promoting respect for the law, providing just punishment for the offense, deterring
criminal conduct, protecting the public from further crimes, and providing the
defendant with needed educational or vocational training or medical care. See 18
U.S.C. § 3553(a)(2). The party challenging the sentence carries the burden of
establishing unreasonableness. See United States v. McBride, 511 F.3d 1293,
1297 (11th Cir. 2007) (per curiam).
We first address Richardson’s argument that his sentence is unreasonable
based on the district court’s upward departure under U.S.S.G. § 4A1.3. Richardson
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contends that the court erroneously focused on the number, rather than the nature,
of his prior offenses. He also asserts that his criminal history category of VI
adequately accounted for his history of fraud and there was no need to increase his
offense level to reflect that. Alternatively, Richardson suggests that he did not
have a history of fraud because his six convictions for theft by receiving stolen
property, which made up 17 points of his criminal history score, did not necessarily
involve fraudulent intent.
Under U.S.S.G. § 4A1.3, a district court may depart from the sentencing
range “if reliable information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the defendant's criminal
history or the likelihood that the defendant will commit other crimes[.]” U.S.S.G.
§ 4A1.3(a)(1) (Nov. 2008). When a defendant is already in the highest criminal
history category of VI, the court may make an upward departure by moving
incrementally to the next higher offense level within category VI that it finds
appropriate. Id. § 4A1.3(a)(4)(B). A court need not explicitly discuss its reasons
for bypassing each offense level. See United States v . Dixon, 71 F.3d 380, 383
(11th Cir. 1995). “Rather, the magnitude of these upward departures will be
reviewed for reasonableness, based on findings by the district court as to (1) why
the extent and nature of the defendant’s criminal history warrants an upward
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departure from category VI, and (2) why the sentencing range within which the
defendant is sentenced is appropriate to the case.” Id. The commentary to § 4A1.3
suggests that “the nature of the prior offenses rather than simply their number is
often more indicative of the seriousness of the defendant's criminal record.”
U.S.S.G. § 4A1.3 comment. (n. 2(B)).
The record in this case supports the court’s finding that Richardson’s
criminal history category significantly under-represented the seriousness of his
criminal history or the likelihood that he would commit other crimes. As noted by
the court, Richardson’s 23 criminal history points for eight prior convictions was
nearly double the minimum 13 points needed to qualify for category VI, the
highest possible criminal history category. Moreover, these 23 points did not
include four other prior convictions. Although the sheer number of convictions is
not the sole factor for assessing the seriousness of a defendant’s criminal history,
§ 4A1.3 specifically instructs the court to consider whether “the extent and nature
of the defendant’s criminal history, taken together, are sufficient to warrant an
upward departure from Criminal History Category VI[.]” Id. § 4A1.3(a)(4)(B)
(emphasis added). The district court thus properly considered the extent of
Richardson’s repeated criminal violations during the past twenty years, the
majority of which were committed while on probation, in determining the
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seriousness of his criminal history and whether he was likely to commit future
crimes. See United States v. Santos, 93 F.3d 761, 763 (11th Cir. 1996) (per
curiam) (affirming two-level upward departure for a Criminal History Category VI
defendant who had 21 criminal points and several other prior convictions or
conduct not included in the criminal history score).
Beyond the number of convictions, the court was equally troubled by the
nature of Richardson’s prior offenses, which the court characterized as a history of
theft and fraud. Richardson argues that category VI already accounted for this
history, but he ignores the fact that three other convictions not included in his
criminal history score also involved theft or fraudulent behavior. Specifically,
Richardson had a 1989 conviction for writing a series of bad checks, a 1995
conviction for theft by receiving stolen property, and a 1995 conviction for
violating Georgia employment security law by fraudulently attempting to obtain
unemployment benefits. The court properly considered these prior sentences in
assessing the seriousness of Richardson’s criminal history. See U.S.S.G.
§ 4A1.3(a)(2)(A) (providing that an upward departure may be based on “[p]rior
sentence(s) not used in computing the criminal history category”).
We also find incredulous Richardson’s suggestion that his numerous
convictions for theft by receiving stolen property are not fraud-related because it is
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possible that he innocently came into possession of the stolen property. Not only is
there no evidence to support this suggestion, but it strains credulity to assume that
this happened on six different occasions (or seven, counting his 1995 conviction).
Furthermore, under Georgia law, “a person commits the offense of theft by
receiving stolen property when he receives, disposes of, or retains stolen property
which he knows or should know was stolen unless the property is received,
disposed of, or retained with intent to restore it to the owner.” O.C.G.A. § 16-8-
7(a) (emphasis added). As Richardson does not suggest that he had any intent to
restore the property to the owner, his convictions indicate that he knew or should
have known the property was stolen.
This brings us to Richardson’s second argument that the amount of the
departure resulted in an excessively harsh sentence. Richardson contends that the
district court did not adequately consider certain § 3553(a) factors such as his
character, the protection of society, the avoidance of sentencing disparities, and the
need for just punishment. According to Richardson, the district court’s failure to
craft a sentence that properly addressed the circumstances of this case resulted in a
sentence that was greater than necessary to accomplish the goals of § 3553(a).
The reasonableness of a departure must be assessed in light of the § 3553(a)
factors and the reasons given by the district court for the departure. See United
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States v. Blas, 360 F.3d 1268, 1274 (11th Cir. 2004) (per curiam). A district court
need not discuss each § 3553(a) factor individually. United States v. Sarras, 575
F.3d 1191, 1219 (11th Cir. 2009). Rather, the court need only acknowledge that it
has considered the defendant’s arguments and the § 3553(a) factors. Id.
Here, the district court expressly stated that its sentence complied with the
factors set forth in § 3553(a), and it extensively addressed several of those factors
in detail. For instance, the court listened to Richardson’s statements of contrition
and admission of guilt but doubted that he truly accepted responsibility or that he
would stop his criminal behavior given his recurring probation violations and
commission of new offenses. The court further admonished Richardson for not
using his college education in art to pursue legitimate work. Thus, contrary to
Richardson’s contention, the court did consider Richardson’s personal
characteristics. See 18 U.S.C. § 3553(a)(1). Additionally, the court addressed the
need to protect society from further crimes, as required by § 3553(a)(2)(C), noting
that “merchants shouldn’t have to worry [ ] that they are putting in their cash
register fraudulent and counterfeit money, and citizens receiving change shouldn’t
have to worry [ ] that the money they get back in change is worthless, just so you
can make money off of it[.]” R6 at 101. The need to impose a just punishment
under § 3553(a)(2)(A) is similarly reflected in the court’s statement that
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Richardson had continued his fraudulent conduct despite being given many
previous opportunities for reform through probationary sentences and/or short
periods of incarceration. Although the court did not specifically address the need
to avoid sentencing disparities among similarly situated defendants, as stated in §
3553(a)(6), the court did find that Richardson’s criminal history placed him head
and shoulders above a defendant who qualifies for a category VI classification.
Moreover, Richardson gives no examples of defendants with similar records who
have been found guilty of similar conduct but were given lesser sentences. See 18
U.S.C. § 3553(a)(6). We therefore conclude that the district court properly and
adequately considered all the § 3553(a) factors.
Based on the totality of the circumstances, we further find the amount of the
departure and the 60-month sentence to be reasonable. We have found in other
cases that sentences equal to or within the statutory maximum are reasonable
where an upward departure is warranted. See Blas, 360 F.3d at 1274 (concluding
that a seven-level departure to the statutory maximum of 180 months of
imprisonment was reasonable); accord United States v. Taylor, 88 F.3d 938, 941,
947-48 (11th Cir. 1996) (concluding that an eight-level upward departure to 97
months of imprisonment was reasonable where the statutory maximum is 120
months of imprisonment). The statutory maximum Richardson faced for
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possession of counterfeit Federal Reserve notes was 20 years of imprisonment.
See 18 U.S.C. § 472 (2009). His five-year sentence was thus only one-quarter of
the statutory maximum. Considering all the circumstances, including Richardson’s
persistent criminal behavior for most of his adult life, we conclude that the district
court did not abuse its discretion in departing upward to 60 months of
imprisonment.
III. CONCLUSION
The record demonstrates that the district court correctly imposed an upward
departure pursuant to U.S.S.G. § 4A1.3, adequately considered the factors listed in
18 U.S.C. § 3553(a), and fashioned a sentence necessary to achieve those
sentencing goals. Accordingly, we find no abuse of discretion in Richardson’s
sentence and AFFIRM.
AFFIRMED.
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