                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         NOV 13 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 01-6398
 v.                                                D.C. No. 01-CR-107-R
                                                     (W.D. Oklahoma)
 PEIRRI B. LEONARD, also known as
 Larry Smith,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before SEYMOUR, BALDOCK, and KELLY, Circuit Judges. **


      Defendant-Appellant Peirri B. Leonard pleaded guilty to 20 counts of

making, uttering, and possessing counterfeit securities in violation of 18 U.S.C.

§513(a). At Mr. Leonard’s sentencing hearing, the district court found that the

criminal history category assessed to Mr. Leonard did not adequately reflect the


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
seriousness of his past criminal conduct. Accordingly, the district court departed

upward one criminal history category and sentenced Mr. Leonard to a term of 57

months imprisonment. Mr. Leonard thereafter brought this appeal challenging the

departure. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a), and we affirm.

      The presentence report (“PSR”) prepared following Mr. Leonard’s guilty

plea set his adjusted base offense level at sixteen. The PSR further assessed Mr.

Leonard twelve criminal history points, yielding a criminal history category of

five. Based on the foregoing, the PSR determined Mr. Leonard’s sentencing

range to be between 41-51 months. Although Mr. Leonard had 18 prior adult

convictions, at least half were not included in the PSR’s criminal history category

computation. Six of these prior convictions were not counted due to their age.

See U.S.S.G. § 4A1.2(e)(3). Similarly, three prior convictions were not counted

due to the four-point limit on counting one-point convictions contained in

U.S.S.G § 4A1.1(c).

      The PSR further concluded that Mr. Leonard’s criminal history category did

not adequately reflect the seriousness of his past criminal conduct or the

likelihood of recidivism and that an upward departure from the applicable

guideline range might therefore be warranted. Mr. Leonard objected to the

factors cited in support of a departure, arguing that the criminal history category


                                         -2-
computation adequately considered all of his past criminal conduct. Mr. Leonard

did not object to the factual determinations contained in the PSR.

      At sentencing, the district court ruled that an upward departure from

category five to category six was warranted. Adopting the factual findings and

sentencing guideline application contained in the PSR, the court concluded that

Mr. Leonard’s criminal history category did not adequately reflect the seriousness

of his past criminal history on two grounds. First, the court observed that several

of Mr. Leonard’s prior convictions were not counted due to age, stating that “if

we just gave one point to each of those, that would be one, two, three, four, five ,

six, seven, eight–that would be eight additional points....” 1 Rec. Vol. 2 at 6.

Second, the court noted that some of Mr. Leonard’s one-point convictions were

not counted due to the four-point cap on one-point convictions contained in

U.S.S.G. § 4A1.1(c). 2 In light of the foregoing, the court stated that:

      In any event, either of those would easily take the defendant into
      Category 6 as opposed to Category 5 and that is going to be the basis
      of my departure. I think it would be up in the twenties, point-wise,
      counting both the zeros and the ones, and under either theory he

      1
              Our review of the PSR indicates that only six convictions were
excluded from the criminal history computation due to their age. However,
because the district court’s decision to depart did not hinge on the court’s belief
that Mr. Leonard had eight rather than six such convictions, we find that the
district court’s miscalculation at the sentencing hearing was harmless.
      2
            The PSR determined that Mr. Leonard had seven one-point
convictions. Because of the four-point limitation, however, only four of these
convictions were used in calculating Mr. Leonard’s criminal history category.

                                      -3-
      would go into a category 6, and certainly with both of them being
      considered, he’s in a Category 6, and if there was a Category 7, I
      would go to a Category 7. 3

Rec. Vol. 2 at 7.

      We review departures from the sentencing guidelines under a unitary abuse

of discretion standard. See United States v. Hannah, 268 F.3d 937, 940 (10th Cir.

2001) (citations omitted). Moreover, in evaluating an upward departure for an

abuse of discretion, we are guided by the principle that “[a] district court by

definition abuses its discretion when it makes an error of law.” Koon v. United

States, 518 U.S. 81, 100 (1996). In determining whether a district court’s

decision to depart constitutes an abuse of discretion, we must evaluate:

      (1) whether the factual circumstances supporting a departure are
      permissible departure factors; (2) whether the departure factors relied
      upon by the district court remove the defendant from the applicable
      Guideline heartland thus warranting a departure; (3) whether the
      record sufficiently supports the factual basis underlying the departure;
      and (4) whether the degree of departure is reasonable.

United States v. Concha, 294 F.3d 1248, 1251 (10th Cir. 2002) (quoting

United States v. Hannah, 268 F.3d 937, 940 (10th Cir. 2001)).

      Mr. Leonard argues that the district court abused its discretion both



      3
             As noted above, the PSR assessed Mr. Leonard twelve criminal
history points based on his prior convictions. Significantly, the assessment of a
single additional point would have resulted in his assignment into criminal history
category six. See United States Sentencing Commission, Guidelines Manual,
Sentencing Table (Nov. 2000).

                                      -4-
because his criminal history did not remove him from the applicable

guideline heartland, and because the record does not sufficiently support the

factual basis for the court’s departure. Specifically, Mr. Leonard contends

that in deciding to depart from the applicable guideline range, the court

erroneously relied on: (1) the six convictions not counted in the criminal

history category computation due to their age (the “zero-point convictions”),

and (2) the three convictions not counted due to the four point cap imposed

in U.S.S.G. § 4A1.1(c) (the “one-point convictions”). Second, Mr. Leonard

claims for the first time on appeal that the government’s failure to plead and

prove beyond a reasonable doubt certain factors that increased the

applicable sentencing guideline range violated the principle recently

articulated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466

(2000).

      We first address Mr. Leonard’s contention that the district court

abused its discretion in basing its decision to depart on his three one-point

convictions not counted due to the four-point cap of U.S.S.G. § 4A1.1(c).

Mr. Leonard specifically claims that the court should not have taken the

excess one-point convictions into account because at least four of his one-

point convictions were minor in nature, and thus would not have received

any points at all were it not for the lengths of the sentences imposed. We


                                      -5-
find this argument without merit.

      Section 4A1.3(a) does not condition the consideration of uncounted

one-point convictions on a showing that such convictions are more than

minor, or “serious.” See, e.g., United States v. Herr, 202 F.3d 1014, 1016

(8th Cir. 2000) (upholding district court’s upward departure based on

defendant’s uncounted prior convictions, notwithstanding minor nature of

several of the prior convictions). On the contrary, U.S.S.G. § 4A1.3(a)

expressly permits district courts to consider “prior sentence(s) not used in

computing the criminal history category” in determining whether a departure

is warranted. The guidelines, therefore, plainly contemplate that a

defendant’s criminal history category may be increased based on the district

court’s consideration of convictions not counted due to the four point

limitation of Section 4A1.1(c). Accordingly, we find that the district court

did not abuse its discretion in relying on the uncounted one-point

convictions in deciding to depart from the applicable guideline range.

      Mr. Leonard further argues that consideration of these convictions

was improper because neither the guidelines nor the commentary creates an

exception to the four-point cap on using one-point convictions in the

criminal history category computation. We disagree. Although no express

exception permits counting one-point convictions beyond the four-point


                                      -6-
limit, the absence of such an exception in no way restricts the district

court’s discretion to depart from an applicable guideline range under

U.S.S.G. § 4A1.3(a). We agree with the Fourth Circuit, which has

specifically held that although § 4A1.1(c) clearly limits the amount of one-

point convictions that can be used to arrive at the original criminal history

category, the section “does not restrict a district court’s ability to consider

these convictions in departing upward under § 4A1.3.” United States v.

Wilson, 913 F.2d 136, 139 (4th Cir. 1990). We therefore conclude that the

district court did not abuse its discretion by basing its decision to depart on

Mr. Leonard’s uncounted one-point convictions.

      Mr. Leonard further argues that the district court abused its discretion

by basing its departure decision in part on his prior convictions not counted

in the criminal history category computation due to their age. Specifically,

Mr. Leonard claims that because the district court did not determine whether

these convictions constituted evidence of “similar or serious dissimilar,

criminal conduct,” U.S.S.G. § 4A1.2, comment (n.8), the district court

“abused its discretion in finding that the zero-point convictions were

sufficient to remove Mr. Leonard’s case from the heartland of the

guidelines....” Aplt. Br. at 14.

      Mr. Leonard correctly points out that convictions not considered in


                                       -7-
the criminal history category computation due to age may be considered in

the departure determination only “if the court finds that a sentence imposed

outside [the specified] time period is evidence of similar, or serious

dissimilar, criminal conduct....” U.S.S.G. § 4A1.2, comment. (n.8).

Moreover, the record reveals that neither the district court nor the PSR

adopted by the district court made any express findings regarding either the

similarity or seriousness of the zero-point convictions. This court has held

that a remand for further findings was necessary where the district court

relied exclusively on convictions more than 15 years old as a basis for

departure, without expressly determining whether those convictions were

either similar or serious. See United States v. Gentry, 31 F.3d 1039, 1041

(10th Cir. 1994). Nevertheless, we hold that under the framework for

analyzing upward departures articulated by the Supreme Court in Koon v.

United States, 518, U.S. 81 (1996), we need not disturb the sentence

imposed by the district court in the current action.

      In Koon, the Supreme Court held that where a district court’s

departure from the sentencing guidelines is based on both valid and invalid

factors, “a remand is required unless [the reviewing court] determines that

the district court would have imposed the same sentence absent reliance on

the invalid factors.” Id. at 113 (citing Williams v. United States, 503 U.S.


                                      -8-
193, 203 (1992)). Consequently, even if none of the uncounted zero-point

convictions could reasonably be characterized as “similar” to the instant

offense or “serious,” we would nonetheless hold that the district court did

not abuse its discretion in deciding to depart upward from the applicable

guideline range. Unlike in Gentry, the district court in the instant case did

not rely exclusively on the uncounted zero-point convictions in deciding that

a departure was warranted. Referring to the zero-point and the one-point

convictions, the district court stated that “[i]n any event, either of those

would easily take the defendant into Category 6 as opposed to Category

5...under either theory he would go into a [C]ategory 6....” Rec. Vol. 2 at 7

(emphasis added).

      Furthermore, as the discussion above makes clear, the district court

did not err in relying on Mr. Leonard’s uncounted one-point convictions as a

basis for departing from the guideline range. Therefore, the district court’s

departure clearly rested on at least one permissible departure factor. We are

satisfied that the district court would have imposed the same sentence even

without considering Mr. Leonard’s uncounted older convictions.

      Mr. Leonard’s final claim on appeal is that various factors used in

setting his base offense level that increased the applicable guideline range

should have been pleaded and proved beyond a reasonable doubt in light of


                                       -9-
Apprendi v. New Jersey. In evaluating this claim, we note first that Mr.

Leonard raises this argument for the first time on appeal. Consequently, we

review this claim under a plain error standard of review. See United States

v. Avery, 295 F.3d 1158, 1181-1182 (10th Cir. 2002) (citations omitted).

To prevail under this standard, Mr. Leonard must establish that there was

“(1) an error; (2) that is plain or obvious; (3) [that] affects substantial

rights; and (4) seriously affects the fairness, integrity, or public reputation

of the judicial proceedings.” United States v. Cernobyl, 255 F.3d 1215 (10th

Cir. 2001) (internal quotations omitted).

      In Apprendi, the Supreme Court held that “other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. However, as

recognized by Mr. Leonard, this court has repeatedly held that the rule set

forth in Apprendi does not apply to sentencing factors that increase the

defendant’s guideline range, but do not result in a sentence that exceeds the

applicable statutory maximum for the offense at issue. See, e.g. United

States v. Sullivan, 255 F.3d 1256, 1265 (10th Cir. 2001); United States v.

Monroe, 259 F.3d 1220, 1226 (10th Cir. 2001). The district court sentenced

Mr. Leonard to a term of imprisonment of four years and nine months.


                                       - 10 -
Under 18 U.S.C. § 513(a), the statutory maximum sentence for each offense

to which Mr. Leonard pleaded guilty was ten years. We therefore reject Mr.

Leonard’s argument that his sentence runs afoul of the rule announced in

Apprendi.

      AFFIRMED.

                                      Entered for the Court

                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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