                                                            FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                 September 14, 2007
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 05-1317
          v.                                               D. Colo.
 M IN O R M IC HA EL STILL also known             (D.C. No. 05-cr-014 REB)
 as M ichael Still,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, HOL LOW A Y, and O’BRIEN, Circuit Judges.




      M inor M ichael Still, a life-long, small-time con man, pled guilty to one of

four counts of falsely impersonating a federal employee. He challenges the

district court’s upward variance from the sentencing guideline range of six to

twelve months to the statutory maximum sentence, thirty-six months. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM .




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                 I.   Background

      In June 2004, Still met M ichael Pouland at Bricks, a bar located in D enver,

Colorado. Still told Pouland he was employed by the Internal Revenue Service

(IRS) in the Offer in Compromise Unit. Still offered to prepare Pouland’s federal

income tax returns for the years 2000, 2001 and 2002. W hen the returns were

completed, the two met again at Bricks. Still told Pouland he owed $1,240.00

before interest and penalties but the IRS w ould accept $124.00 in satisfaction of

his tax obligations. Pouland obtained a cashiers check, leaving the “pay to the

order” section blank, as Still instructed. The two met again at the bar and

Pouland gave Still the $124.00 check as well as a “processing fee” of $25.00

cash. Ever the consummate professional, Still gave Pouland a receipt from the

“Internal Revenue Service, Denver Regional Office” and signed an IRS Form 656,

“Offer in Compromise,” as an “Authorized Internal Revenue Service Official.”

      At the same time, Still was running the same scam on another of Bricks’

patrons, Isaac Lovato. Again conducting all his business at the bar, Still told

Lovato he was an IRS employee and offered to help Lovato with his federal

income tax liability. After reviewing Lovato’s information, Still advised him he

owed $3,890.00 in back taxes, interest and penalties, but the IRS w ould accept

$389.00 as an “offer in compromise.” Lovato paid Still $120.00 in cash in June

2004 and $269.00 in cash in July 2004. Once again, Still completed Lovato’s

transaction with an official IRS Form 656.

                                         -2-
      Satisfied with his success at Bricks, Still moved his tax consulting services

to another bar, the Longhorn Tavern, also located in Denver. There, he repeated

his lines, garnering a $50.00 “processing fee” from Robert Kay in December

2004. Another Longhorn customer, Luke M cFarland, gave Still a $60.00

“processing fee” along with a $212.00 compromise payment in late 2004. Not

surprisingly, the IRS has no record of any of Still’s promised tax filings.

      On January 4, 2005, the government indicted Still with four counts of a

violation of 18 U.S.C. § 912, “falsely assum[ing] and pretend[ing] to be an officer

and employee of the United States, namely, an employee of the Internal Revenue

Service.” On February 25, 2005, Still entered into a plea agreement with the

government in which he agreed to plead guilty to Count One and provide

restitution to all four of the victims in exchange for the government’s dismissal of

the remaining charges and a two point reduction for acceptance of responsibility.

      The United States Probation Department prepared a presentence

investigation report (PSR ) based on the 2004 edition of the Advisory Guidelines

M anual. The PSR computed Still’s base offense level at six with a two-point

reduction for acceptance of responsibility. See USSG §2J1.5; U SSG §3E1.1(a).

His criminal history computation included fifteen points for convictions over the

past fifteen years. A three point enhancement was also added – two points

because he was on parole supervision at the time he committed the offense and

one point because the current offense occurred w ithin two years of his release

                                         -3-
from custody. See USSG §4A1.1(d), (e). W ith a total offense level of four and a

criminal history category of V I, the recommended guideline range for Still’s

offense was six to twelve months imprisonment. However, the PSR also revealed

Shaw’s forty-year history of fraudulent activity. His convictions between 1965

and 1985, uncounted in his criminal history computation due to their age,

revealed at least fourteen incidents of crimes such as felony theft, forged papers,

stolen credit cards, impersonation and stolen motor vehicles. See USSG

§4A1.2(e) (prior sentences will be counted if within fifteen year time frame and

sentence imposed was imprisonment exceeding one year and one month; all other

prior sentences w ithin ten years will be counted).

      On M ay 16, 2005, the government filed a M otion for Upward Departure

pursuant to §4A1.3 of the sentencing guidelines. The government maintained

Still’s category VI criminal history did not reflect his life-long pattern of

“defrauding, cheating, and impersonating others.” (Vol. I, Tab 21 at 3). It

argued:

      The only gaps in this behavior are periods w hen he has been in
      prison. That fact allows the Court to draw two conclusions: First,
      that the defendant is not only likely to recidivate upon release; it is
      certain that he will. Second, that society is safe from the defendant’s
      predations only when he is behind bars.

(Id.) The government requested the district court impose the statutory maximum

of three years imprisonment due to Still’s uncounted criminal history and his




                                          -4-
repeated failures to obey court orders regarding the terms and conditions of

probation and parole.

      Still responded by arguing his case was not “outside the heartland” of the

sentencing guidelines. M oreover, he maintained the requested level of departure

was unreasonable given “that it would result in a sentence equivalent to that of

someone convicted of a fraud resulting in over $120,000 in losses, as compared to

his $860.00.” (Appellant’s Br. at 4.) Still claimed the sentence should not be

based on a mere tallying of his uncounted prior convictions. Rather, the court

should take into account that his offenses were relatively minor and the guidelines

considered them time-barred.

      At the sentencing hearing on June 24, 2005, the parties relied on the

arguments in their briefs to the district court. 1 In addition, Still argued a

reasonable sentence would be a sentence within – though perhaps at the upper end

of - the guideline range. The district court granted the government’s motion for

an upward departure and sentenced Still to thirty-six months in prison. The court

concluded such sentence was reasonable considering the factors laid out in

§ 3553(a), as informed by the guidelines and the departure criteria. This timely

appeal followed.

                                   II.   Discussion



      1
        Still’s brief in response to the government’s motion for an upward
departure is not included in the record on appeal.

                                           -5-
       After United States v. Booker, we review a sentence to determine if it is

reasonable. 543 U.S. 220, 261 (2005). In United States v. Kristl, we fashioned “a

two-step approach” for post-Booker appellate review . 437 F.3d 1050, 1055 (10th

Cir. 2006). First, we “determine whether the district court considered the

applicable Guidelines range.” Id. If so, and the sentence falls within that range,

it “is presumptively reasonable,” subject to rebuttal by the defendant “in light of

the other sentencing factors laid out in § 3553(a).” Id. If the sentence does not

fall within the guideline range, it is not entitled to a presumption of

reasonableness on appeal. See U nited States v. Calzada-M aravillas, 443 F.3d

1301, 1309 (10th Cir. 2006) (citing Kristl, 437 F.3d at 1054). The reviewing

court will consider whether the district court calculated the relevant guidelines

range, including any applicable departure; considered the guidelines range along

with other § 3553(a) factors; and imposed a reasonable sentence. See United

States v. Fernandez, 443 F.3d 19, 26 (2d Cir.), overruled as to other issues, Rita

v. United States, 127 S. Ct. 2456 (2007), cert. denied, 127 S.Ct. 192 (2006).

“[A]fter Booker, every sentence that a district court ultimately imposes must

reflect its determination of what is reasonable in light of the same § 3553(a)

factors, whether that sentence is within or outside the Guidelines range.” United

States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006). Reasonableness

is required in two respects – “the length of the sentence, as well as the method by




                                          -6-
which the sentence was calculated.” Kristl, 437 F.3d at 1055 (emphasis in

original).

      Still does not challenge the district court’s calculation of the guidelines

range. Rather, he contends the sentence imposed is unreasonable because the

degree of departure was greater than any reasonable pre-Booker methodology

would have sanctioned. He also argues the district court did not adequately

consider the § 3553(a) factors and the circumstances of his offense, but instead

focused solely on his criminal history. W e must determine whether the district

court could reasonably have imposed the maximum statutory sentence, thirty-six

months, based on the record before it. Although our ultimate decision is guided

by the factors set forth in 18 U.S.C. § 3553(a), we consult and take the guidelines

into account. At each step, “‘we review legal questions de novo and we review

any factual findings for clear error, giving due deference to the district court’s

application of the guidelines to the facts.’” United States v. W olfe, 435 F.3d

1289, 1295 (10th Cir. 2006) (quoting United States v. M artinez, 418 F.3d 1130,

1133 (10th Cir.), cert. denied, 546 U.S. 1081 (2005)).

A.    Upward Departure From the Guidelines

      W hile guideline and non-guideline considerations will necessarily overlap,

we consider four factors in reviewing a district court’s upward departure from the

guidelines:




                                          -7-
      (1) w hether 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
      [pursuant to a methodology associated with guideline factors].

United States v. W alker, 284 F.3d 1169, 1171 (10th Cir. 2002). 2 As to the first

factor, the applicable guideline policy statement, found in USSG §4A1.3,

provides that upward departures may be based upon the inadequacy of the

criminal history category:

      (1)    STANDARD FOR UPW ARD DEPARTURES. 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, an upward departure may
             be warranted.

Still concedes it was proper for the court to consider the length of his criminal

history. As to the second factor, Still no longer argues his history of recidivism

fails to take his case out of the guidelines “heartland” or is insufficient to provide

reliable information supporting a departure. As to the third factor, the type of

information which may be considered reliable includes, but is not limited to,

information concerning prior sentences of substantially more than one year

imposed as a result of independent crimes committed on different occasions.


      2
         The government suggests we modify this test to reflect the “new vitality”
of the § 3553(a) factors post-Booker. (Appellee’s Br. at 12.) W e need not decide
if the wording of this test requires post-Booker modification as Still cannot show
error under the guidelines or § 3553(a).

                                          -8-
USSG §4A1.3(a)(2). The record is replete with reliable information which

supports the factual basis underlying the departure.

      Thus, we proceed to the fourth factor, and consider whether the degree of

departure was reasonable. As we stated in United States v. Proffit,

      The district court is required to precisely lay out its reasoning and
      analysis as to why it is selecting a particular degree of departure.
      This reasoning and analysis must give us reasonable indicia that the
      sentence the district court pronounces is proportional to the crime
      committed. The district court accomplishes this task by using any
      reasonable methodology hitched to the Sentencing Guidelines to
      justify the reasonableness of the departure.

304 F.3d 1001, 1012 (10th Cir. 2002) (internal citations and quotations omitted).

W here the district court determines a criminal history category VI does not reflect

the seriousness of the defendant’s criminal history or his proclivity for

recidivism, USSG §4A1.3(4)(B) suggests “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.” As the government noted in its brief in support of its motion for an

upward departure, if Still’s uncounted “convictions were assigned points, [he]

would have thirty-four additional criminal history points for a total of fifty-two.”

(Vol. I, Doc. 21 at 4.) The government suggested (and the probation department

concurred) that the court apply a total offense level of twelve rather than four,

resulting in a sentencing range of thirty to thirty-seven months imprisonment.

The government further urged the court to sentence Still at the statutory maximum


                                          -9-
under 18 U.S.C. § 912, arguing “[s]ociety should be protected from the defendant

for as long as § 912 allows.” (Id. at 6.) W hile the district court did not

expressly state the reason for an upw ard departure from the guideline offense

level of four to twelve, it specifically adopted the government’s arguments. 3

(Vol. II at 13.)

      Still argues this departure would not be sanctioned under pre-Booker

precedent because it is unsupported by the record. However, even adopting the

methodology Still suggests, assigning one offense level for every four uncounted

criminal history points above fifteen or sixteen, the total increase would be eight

offense levels, 4 bringing Still to the offense level tw elve he now rejects.

(Appellant’s Br. at 21, n.1.) Thus, there is no question that the district’s court’s

decision utilized “a[ ] reasonable methodology hitched to the Sentencing

Guidelines to justify the reasonableness of the departure.” Profitt, 304 F.3d at

1012; see also United States v. Hurlich, 348 F.3d 1219, 1222 (10th Cir. 2003)

(“The district court may use any reasonable methodology hitched to the

Sentencing Guidelines to justify the reasonableness of a departure, which includes


       3
         The Probation Department filed an addendum to the PSR in support of
the government’s assessment in its M otion for Upward Departure. It stated:
“given the defendant’s criminal history and the nature of his offenses, [ ] a three
year term of imprisonment is reasonable.” (R . Vol. III at A -1.)
      4
        Still had seven uncounted convictions valued at three points each, five
uncounted convictions valued at two points each and three uncounted convictions
valued at one point each, for a total of thirty-four uncounted criminal history
points. See USSG § 4A1.1(a),(b)& (c). (R. Vol. III at 6-10.)

                                          -10-
using extrapolation from or analogy to the Guidelines.” (quotation marks and

citations omitted). Thus, we conclude that the district court correctly consulted

the guidelines and conducted the proper departure analysis.

B.    Reasonableness Under the § 3553(a) Factors

      Next, we must consider whether the district court adequately considered the

factors listed in 18 U.S.C. § 3553(a). 5 Under Booker, the ultimate question on

review is whether the sentence is reasonable under these factors. Sanchez-Juarez,

446 F.3d at 1114.

      5
          18 U.S.C. § 3553(a) provides, in relevant part:

      (a) Factors to be considered in imposing a sentence. The court shall
      impose a sentence sufficient, but not greater than necessary, to
      comply with the purposes set forth in paragraph (2) of this
      subsection. The court, in determining the particular sentence to be
      imposed, shall consider--

          (1) the nature and circumstances of the offense and the history and
          characteristics of the defendant;

          (2) the need for the sentence imposed--

           (A) to reflect the seriousness of the offense, to promote respect
           for the law, and to provide just punishment for the offense;

           (B) to afford adequate deterrence to criminal conduct;

           (C) to protect the public from further crimes of the defendant; and

           (D) to provide the defendant with needed educational or
           vocational training, medical care, or other correctional treatment
           in the most effective manner . . . .



                                          -11-
      Still claims the district court ignored “many factors w eighing against a

departure.” (Appellant’s Br. at 13.) M ore specifically, he concedes his criminal

history is long, but claims the district court failed to consider the relatively

benign nature of his offenses. He argues his crimes have “barely deviated” over

time, never escalating from “petty thefts and cons” for “small amounts of money.”

He also points out his crimes are without the presence of violence or drugs, the

hallmarks of a “serious offense.” (Id. at 14.) Citing to United States v. W alker,

he contends the court erred because it looked only at the quantity, not the quality

of criminal history. 284 F.3d 1169, 1173 (10th Cir. 2002).

      In W alker, we questioned reliance solely on the sheer number of a

defendant’s past convictions when structuring a departure from criminal history

category VI because it could “create a de facto criminal history category higher

than category VI.” Id. In this case, however, the district court looked not only to

the length of Still’s criminal career, but also to his response to the legal system’s

efforts to constrain his criminal behavior. It stated:

      In my 30 years of practicing law, the last 17 on the bench, I cannot
      recall a criminal record more lengthy than this one, and any sentence
      short of the statutory maximum would in my view depreciate the
      seriousness of this offense, considered in context under my respect
      for the law , and certainly provide inadequate deterrence to the public
      under the law for this particular defendant, thus, in considering and
      formulating a sentence first under the now advisory sentencing
      guidelines, I am convinced that I should depart upward, and that I
      should depart upward to facilitate the imposition of the statutory
      maximum of 36 months or three years as urged and recommended by
      the government, now as supported by the probation department.


                                          -12-
      Independently, as I consider sentence, under the sentencing factors at
      18 U.S.C. section 3553(a)(1) through (7), I reach a similar
      conclusion. That a sentence to the statutory maximum is the only
      sentence that will reconcile and satiate those sentencing factors
      considered individually and collectively . . . .
      The defendant has, by choice, led a life of crime, interrupted only by
      intermittent incarceration as his criminal activity was detected and
      prosecuted. I am convinced beyond any doubt that M r. Still will recidivate
      after release . . . and during a term of supervised release and thereafter.
      The public is owed the best the court can provide in these circumstances,
      and that is the maximum sentence or period of potential deterrence by law ,
      in this case 36 months or three years.

W hile Still attempts to downplay his criminal past, his constant repetition of

similar offenses, often while on parole or supervised release from a previous

conviction, is truly extraordinary. Such a pattern can justify an upward variance,

even though the offenses were not violent. See Proffit, 304 F.3d at 1011-12;

United States v. Akers, 215 F.3d 1089,1104-05 (10th Cir. 2000); United States v.

Bernhardt, 905 F.2d 343, 344-45 (10th Cir. 1990).

      The district court found Still’s extraordinary criminal history warranted the

statutory maximum sentence because a shorter sentence would “depreciate the

seriousness of the offense . . . in the context of this offender.” The accuracy of

this statement is established by the same facts underpinning the record support for

other statutory factors. W e begin with Still’s life-long comm itment to the

criminal deception of others, despite his numerous convictions and resulting

sentences. Over the past forty years, Still has not been deterred by sentences of

five and six years, immediately returning to his previous lifestyle after being

released. Still has spent almost eleven of the last fifteen years in prison.

                                         -13-
Nonetheless, he managed to accrue six felony convictions in his four years of

freedom. W e also consider the numerous occasions Still re-offended while on

probation and supervised release, as well as his escapes from detention outside

prison walls. See United States v. Contreras-M artinez, 409 F.3d 1236, 1241 (10th

Cir. 2005) (“The violation of a condition of supervised release is a breach of trust

. . . ”).

            These facts underscore Still’s complete disdain for the law and suggest a

shorter sentence w ould provide inadequate deterrence. These facts also support

the determination that a thirty-six month sentence would allow the public

protection for as long as possible. Each of these considerations is proper under

§ 3553(a)(2) and the district court’s decision to sentence Still to the statutory

maximum of three years was both reasoned and reasonable.

B.          Discrepancy Between the Guideline Range and the Sentence Imposed

             In his final argument, Still maintains his sentence must be considered in

terms of the proportion of the variance, in his case, an increase of over three

hundred percent (twelve months to thirty-six months). Indulging Still’s insistence

that a percentage approach to the degree of his variance is appropriate, the district

court did not abuse its discretion. “‘[W ]hen a district court imposes a sentence

outside the guidelines, the level of scrutiny we apply in reviewing the sentence

depends on the ‘comparative difference’ between the applicable range under the

advisory Guidelines and the actual sentence imposed.’” United States v. Hildreth,

                                             -14-
485 F.3d 1120, 1127 (10th Cir. 2007) (quoting United States v. Cage, 451 F.3d

585, 594 (10th Cir. 2006)). W e look to the percentage of divergence as well as

the “absolute number of months above or below the Guidelines range.” United

States v. Valtierra-Rojas, 468 F.3d 1235, 1240 (10th Cir.2006), cert. denied, 127

S.Ct. 2935 (2007). The detail with which the court must explain its decision to

vary from the guideline range is relative to the degree of the discrepancy between

the sentence and the advisory range. Cage, 451 F.3d at 594 (“Had the

comparative difference been smaller but still outside the Guidelines range, the

district court’s decision would not have been presumptively reasonable but an

appropriate justification would suffice for this court to determine that it is

reasonable.”) 6

      W e have often approved sentences which were several times higher than the

applicable guideline range based on repeated similar criminal conduct. Hurlich,

348 F.3d at 1220-23 (departure from twenty-seven to thirty-three months to a

sentence of seventy-eight months); Bernhardt, 905 F.2d at 343, 346 (departure

from range of eighteen to twenty-four months to a sentence of sixty months);

United States v. Smith, 417 F.3d 483 (5th Cir. 2005) (departure from range of

thirty-three to forty-one months to a sentence of 120 months based on twenty-year

      6
        The Supreme Court has recognized “a number of circuits adhere to the
proposition that the strength of the justification needed to sustain an
outside-Guidelines sentence varies in proportion to the degree of the variance.”
Rita, 127 S.Ct. at 2467. The Court will consider this approach next Term in
United States v. Gall, No. 06-7949.

                                          -15-
history of “con-man”-type offenses.), cert. denied, 546 U.S. 1025 (2005). In

addition, we have affirmed variances of more than twenty-four months. Hurlich,

supra. For the reasons previously stated, the district court’s explanation was

sufficient and the sentence reasonable.

A FFIR M E D.

                                       FOR TH E CO UR T:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




                                          -16-
