United States v. Brown

United States Court of Appeals,

Eleventh Circuit.

No. 93-9148.

UNITED STATES of America, Plaintiff-Appellee,

v.

Sterling Elliot BROWN, Defendant-Appellant.

March 9, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:93-CR-215-ODE), Orinda D. Evans, Judge.

Before HATCHETT and COX, Circuit Judges, and JOHNSON, Senior

Circuit Judge.

PER CURIAM:

The sole issue in this case is whether the district court

erred when it increased the appellant's criminal history category

from IV to VI under guideline 4A1.3 of the Sentencing Guidelines.

The appellant pleaded guilty to a charge of escape, and the

presentence investigation report (PSI) placed him in criminal

history category IV. Appellant's criminal history category of IV

and his offense level of 11 resulted in a presumptive range of 18

to 24 months.

When the case came on for sentencing, the district court

advised the appellant that it intended to increase his criminal

history category under section 4A1.3 of the Sentencing Guidelines.

Three prior convictions were not considered in determining the

criminal history category because the sentences imposed fell

outside the time period section 4A1.2 of the Sentencing Guidelines

establishes. In sentencing the appellant, the district court

increased his criminal history category from IV to VI, which

enhanced the sentencing range to 27 to 33 months.

The appellant makes two challenges to the district court's

upward departure. As to the first, appellant contends that the

guidelines prohibited the district court from relying on the three

previous convictions because they were not similar to the offense

for which he was being sentenced—escape. Appellant's contention is

without merit because the guidelines permit the sentencing court to

consider, as grounds for a 4A1.3 departure, outdated convictions

that are dissimilar, but "serious." See U.S.S.G. § 4A1.2,

comment.; United States v. Williams, 989 F.2d 1137, 1141 (11th

Cir.1993). The district court found the prior convictions serious,

and stated:

Now, I recognize that these fraud offenses or fraud type

offenses are not similar to the offense of escape, but I feel

that particularly when you look at all of these offenses in

the aggregate; that is, the offenses preceding the escape

conviction, what you find is a pattern which as a whole seems

very serious to me because it continued over such a long

period of time. [Emphasis added.]

The appellant's second contention is that the district court

failed to follow our guidance announced in Williams, 989 F.2d at

1142, where we held: "When departing upward under the auspices of

4A1.3, the court must look first to the next criminal history

category." Our review of the record persuades us that the district

court was well aware of the fact that the three remote convictions

would have added eight or nine criminal history points and was

"well above" the level required for category VI. We find the

following district court's statements to be persuasive on this

point:

In deciding to go up to level VI, I have done so because

it appears to me if I were to add the point totals for the

three remote felony convictions, they would more than qualify

the defendant for offense level VI. I believe it would add

eight or nine points to the criminal history score. So,

actually, it would be well above that required for offense

level VI.

Although the district court did not specifically discuss offense

level V, it is clear that the court gave reasons to advance from

level IV to level VI. Consequently, the district court considered

whether level V was appropriate in this case and decided that it

was not sufficient in light of the appellant's history.

Finding no error, we affirm.

AFFIRMED