In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2720

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN CROSS,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 354--Charles P. Kocoras, Judge.

Argued April 11, 2002--Decided May 10, 2002



  Before CUDAHY, DIANE P. WOOD, and EVANS,
Circuit Judges.

  EVANS, Circuit Judge. Steven Cross is a
bad seed. Since the late 1980’s, he has
had repeated brushes with the criminal
law of the state of Illinois, translating
into multiple felony convictions for
various species of theft and fraud. In
1994 he burnished his reputation as a
swindler with federal convictions for
bank fraud and the use of unauthorized
access devices. While on supervised
release for the federal violations, Cross
cooked up a new business plan: he falsely
held himself out, through an assortment
of business names, addresses, phone
numbers, aliases, and bank accounts, as
being an authorized dealer of Beanie
Babies and Pokemon playing cards, which
are (or were, it’s often hard to tell)
all the rage with kids. He offered
customers, mainly retailers, a discounted
price for these toys if they would send
him advance payment. In national
publications he also advertised $20
memberships in the "International Beanie
Baby Club," promising various benefits.
In all but a few instances, when anyone
sent him money--and here’s the genius of
the plan--he didn’t send the promised
goods. Although Cross might have thought
of this as a clever way of maximizing
profit, most people think of it as
getting something for nothing and, when
it’s achieved with the help of false
promises and interstate mail or wires,
it’s illegal. 18 U.S.C. sec.sec. 1341,
1343. The government indicted Cross--
after he made off with approximately
$275,000--on 12 counts of mail and wire
fraud. Cross pled guilty to the first
three counts of mail fraud, and the case
proceeded to sentencing.

  Applying the United States sentencing
guidelines, the district judge (Kocoras,
J.) calculated Cross’s offense level as
21. Cross had 20 criminal history points,
putting him in category VI, which is the
highest criminal history category. The
combination of an offense level of 21
with a category VI criminal history
produces a sentencing range of 77 to 96
months. The government argued that
because Cross’s 20 criminal history
points were 7 more than category
VI’sminimum number, and the majority of
the other categories have ranges of only
3 points, category VI did not adequately
reflect the seriousness of Cross’s past
criminal conduct and the likelihood of
his committing future crimes.
Accordingly, it moved for an upward
departure under sec.4A1.3 of the
guidelines.

  Judge Kocoras agreed . . . emphatically.
The judge told Cross: "[Y]ou approach
that category of one who is so callous,
so contemptuous of your fellow man, so
contemptuous of the criminal justice
system, that everything you say and do
has a ring of falsity and hollowness to
it." Cross, the judge observed, had such
"a capacity for lying and cheating . . .
as to give new meaning to the word
recidivist." Judge Kocoras went on to
tell Cross that although he had been in
prison before, "you come out and even
before your ability to breathe fresh air
is customary, you start cheating, again."
He concluded: "I am convinced beyond any
question--beyond any question--that you
are incapable of following the law.
Incapable of it." Judge Kocoras then
departed from the high point of the
relevant guideline range (96 months) and
sentenced Cross to the maximum term under
the mail fraud statute (60 months) for
each of the three counts and ordered the
sentences to run consecutively, a total
of 180 months.

  Cross challenges this sentence on
appeal. We review a district court’s
upward departure under sec.4A1.3 by a-
three-part test. United States v.
Peterson, 256 F.3d 612, 614 (7th Cir.
2001). First, a sentencing court must
state adequate grounds to support the
departure. We review this determination
de novo. Id. Second, we review for clear
error whether the facts cited to support
the departure actually exist. Id. Third,
the degree of departure must be linked to
the structure of the guidelines, a
determination we also review
deferentially. Id.

  It bears emphasizing that Cross does not
challenge Judge Kocoras’s determinations
as to the first two issues. There is no
dispute that Cross’s criminal activities
span 4 presidential administrations and
some 15 baseball seasons. Children born
in the era of Cross’s earliest recorded
cons are now getting dates for the prom.
There is no dispute that, despite stays
in prison and other forms of punishment,
Cross’s present crime involves the same
pattern of trickery and deceit prevalent
throughout his criminal history. There is
no dispute that Cross executed the Beanie
Baby/Pokemon stratagem while on
supervised release for previous federal
convictions. There is no dispute that
this case evinces the same callous
disregard for victims that Cross
apparently has maintained since his early
adulthood. There is no dispute, in short,
that Cross is likely to commit further
crimes when given the chance. Nor does
Cross seriously dispute that these facts
justify a departure under sec.4A1.3. The
only dispute is whether Judge Kocoras
erred by using an improper method for
determining the degree of the departure.

  But, on that point, Cross has some
traction. Section 4A1.3 provides that,
where an upward departure from a category
VI range is warranted, "the court should
structure the departure by moving
incrementally down the sentencing table
to the next higher offense level in
Criminal History Category VI until it
finds a guideline range appropriate to
the case." Some popular methods that we
have approved, although surely not the
exclusive ones, are to add one offense
level for every 3 points above 13
(category VI’s minimum) or 15 (its
inferred maximum when read in light of
categories III, IV, and V). See, e.g.,
Peterson, 256 F.3d at 615-16 (affirming
district judge’s addition of one offense
level for every 3 criminal history points
exceeding 13); United States v. Ewing,
129 F.3d 430, 437 (7th Cir. 1997)
(affirming district judge’s addition of
one offense level for every 3 criminal
history points exceeding 15); United
States v. McKinley, 84 F.3d 904, 910-11
(7th Cir. 1996) (same as Ewing).
Variations of that approach, which we
mention only for illustrative purposes,
might have put Cross in a range of 92-115
months or 100-125 months or 110-137
months. Other approaches to linking the
departure to the structure of the
guidelines also may have been possible.

  Instead, staring at a criminal with
numerous opportunities for but no record
of rehabilitation, Judge Kocoras, a most
capable veteran jurist, simply imposed
the longest sentence statutorily possible
in order to achieve the maximum
incapacitation possible. Instead of
trying to translate this into guideline
gobbledygook about offense levels, he
commendably admitted:

And, so, while I am told by the guideline
manuals and the Court of Appeals where,
if I were to depart upward, to find some
measure in the guidelines in order to
find the number, do you want to know the
truth of it? And I will state it on the
record. There is no number that the
guidelines supply me that brings me some
measure of reason.

The only thing that guides me, Mr. Cross,
in my consideration is to incapacitate
you for as long as I can.

You have cheated enough people for a long
time and it is time you were told you
cannot do it any more. And that, purely
and simply, has no limit other than the
statutory limitation.

Defense counsel asked Judge Kocoras
whether he was tying the sentence to a
particular offense level. The judge
responded: "None will support it. I mean,
you can pick any number you want." He
added:

At Level 29, which is easily within the
facts of this case, you have a range of
151 to 188 months.
Now, fifteen years measures at, what?
Somewhere written [sic] that range. So,
that is the level I would pick, quite
frankly, but I am capped by the statute.

Judge Kocoras’s statements make clear
that he was not tailoring the departure
by increasing the offense level in
response to the extra criminal history
points but, rather, reaching a result
dictated by his stated sentencing goal
and then referencing, at defense
counsel’s request, the offense level and
sentencing range housing that number.

  Cross describes this as just the sort of
"visceral" sentencing that the guidelines
did away with. Visceral is an antonym of
rational, and we don’t think that
sentencing a practiced recidivist to the
statutory maximum is a result to which
reason could not lead a judge in this
case. But Cross’s larger argument stands:
on some points, the guidelinesreplace the
district judge’s reasoning with their
own, and this is such a case. The way in
which Judge Kocoras translated his
conclusions about Cross’s past criminal
conduct and future likelihood of
wrongdoing into a sentence ran afoul of
sec.4A1.3 and, therefore, was an abuse of
discretion. Although we sympathize with
the judge and can understand his disgust
with Cross, the guidelines--perhaps
unwisely-- cabin a judge’s sentencing
sensibilities in cases such as this. And
so we conclude that the case must be
remanded for resentencing in conformity
with the departure approach called for in
sec.4A1.3 as we have interpreted that
provision.

  One last point. Cross asks that under
Circuit Rule 36 we direct on remand that
this case be reassigned to a different
judge because of possible bias against
Cross. Judge Kocoras’s error was one of
method, not substance. Any sentencing
judge will evaluate Cross’s elaborate
criminal history and use it to depart
from the range (the facts and
justification for the departure not being
contested). The only question is how to
reach the magic number, a determination
that we are confident Judge Kocoras will
make this time using the method
prescribed by the guidelines. The case
will be remanded to him.

REVERSED.
