                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 19 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 02-1553
                                                           (D. Colo.)
 KITTY E. LONGMIRE, a/k/a Kitty E.                 (D.Ct. No. 02-CR-156-MK)
 Naulls,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and
MURPHY, Circuit Judge.



      Defendant, Ms. Kitty Longmire, pled guilty to one count of misusing a

social security number in violation of 42 U.S.C. § 408(a)(7)(B) and received a

sentence of twenty-one months imprisonment. The district court departed upward

one criminal history point from the United States Sentencing Guidelines (“the

Guidelines”) recommendation to arrive at the final sentence. Ms. Longmire now


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The 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.
appeals the district court’s decision to depart upward. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(e). We conclude the district

court properly departed upward one criminal history point and affirm.



BACKGROUND

      Ms. Longmire’s conviction stems from her misuse of two social security

numbers. Ms. Longmire’s state probation officer discovered this misuse and

subsequently informed the Social Security Administration. When questioned by

her probation officer, Ms. Longmire explained she used an alternate social

security number to avoid the garnishment of her wages by the Internal Revenue

Service to cover back taxes.



      At the time the misuse was discovered, Ms. Longmire was serving five

years probation for a felony conviction involving her use of another person’s

identity in order to obtain a $20,000 loan. After further investigation, the Social

Security Administration concluded Ms. Longmire used the false number for

approximately five years and submitted the number as her own in her employment

as a case manager for various health care providers. With the false number, Ms.

Longmire obtained a home equity loan, two car loans, a checking account, a line

of credit, and a credit card, and accrued substantial debt therefrom.


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      After Ms. Longmire’s home was auctioned and the home equity loan repaid,

the agreed amount of restitution remaining was approximately $56,000 and the

amount of total loss in excess of $70,000. Having determined the amount of the

loss, the Government and Ms. Longmire tentatively agreed her offense level

would be calculated at ten or twelve, pursuant to § 2B1.1 of the Guidelines, and

Ms. Longmire’s criminal history category would likely be III, pending final

computation of her criminal history. Under the Guidelines, this level and

category would result in a sentencing range of fifteen to twenty-one months.

U.S.S.G. Ch. 5, Pt. A (Sentencing Table). The United States agreed to

recommend a sentence of fifteen months.



      Prior to sentencing, the government submitted a presentence investigation

report to the district court detailing Ms. Longmire’s prior criminal history. At the

time of her conviction Ms. Longmire had three prior felony convictions involving

money obtained by fraudulent means. The report also noted Ms. Longmire filed

for bankruptcy five times, using three different social security numbers.

Additionally, the report revealed an error in the parties’ calculation of her offense

level in their plea agreement. Specifically, the parties mistakenly considered one

of Ms. Longmire’s prior convictions – which was more than ten years old and

outside the range for consideration under the Guidelines – in calculating her


                                         -3-
offense level. Without this conviction, her criminal history category was reduced

to II. In this corrected category, the recommended sentencing range was ten to

sixteen months. In spite of Ms. Longmire’s classification in category II, the

report recommended the district court depart upward pursuant to § 4A1.3, arguing

Ms. Longmire’s criminal history category did not accurately reflect her past

criminal dealings. The report based its recommendation on these circumstances:

(1) two of Ms. Longmire’s prior felony convictions were not considered in

calculating her offense level because of their age; (2) she received only probation

for her three prior felony convictions; (3) she committed two of her prior offenses

while on probation; and (4) mental health counseling had been unsuccessful in

abating her criminal activities. The report therefore concluded Ms. Longmire was

likely to commit future crimes, unless deterred from doing so.



      Subsequently, the government filed a motion for upward departure,

concurring with the presentence report’s conclusion an upward departure was

warranted in light of Ms. Longmire’s criminal history. Citing U.S.S.G. § 4A1.3,

the government sought a one-point increase, which would elevate Ms. Longmire’s

criminal history category to III. 1 In addition to asserting Ms. Longmire’s criminal


      1
         The government’s earlier agreement to recommend fifteen months in Ms.
Longmire’s case was available under both category II (twelve to eighteen months), and
category III (fifteen to twenty-one months). See U.S.S.G. Ch. 5, Pt. A (Sentencing Table)

                                           -4-
history was not accurately reflected by the proposed offense level, the government

also pointed out her prior offenses all involved financial fraud. As further

support for its argument, the government noted Ms. Longmire also filed for

bankruptcy many times while using different social security numbers and different

spellings of her name. They suggested these filings provided another indication

of her predilection for committing fraud.



      At sentencing, the district court concurred with the presentence report and

the government’s motion and granted the upward departure, ultimately sentencing

Ms. Longmire to twenty-one months. In finding the departure warranted, the

district court found Ms. Longmire’s case to be outside the heartland of cases for

defendants typically sentenced under criminal history category II. Specifically,

the district court found Ms. Longmire: (1) received lenient sentences in her three

prior convictions; (2) abused the bankruptcy process; and (3) was in “significant

danger of recidivism” because of her lack of contrition in committing her

offenses.



      In general, Ms. Longmire asserts the district court erred by: (1) relying on



(2000).



                                         -5-
impermissible grounds in departing upwards; (2) failing to support these grounds

with factual findings; and (3) failing to provide sufficient notice of its intent to

depart upwards and its basis for departure. On review of the record, we conclude

Ms. Longmire’s assertions are without merit.



STANDARD OF REVIEW

      In 2003, Congress enacted the “Prosecutorial Remedies and Tools Against

the Exploitation of Children Today Act of 2003” (PROTECT Act), altering our

standard of review for district court departures from the Guidelines. See Publ. L.

108-21, 117 Stat. 650 (Apr. 30, 2003) (codified as amended in scattered sections

of 18, 28, and 42 U.S.C.). Prior to its enactment, we reviewed sentencing

departures by applying the four-part test pronounced in United States v. Collins,

122 F.3d 1297, 1302-03 (10th Cir. 1997), under an abuse of discretion standard.

In light of the act’s enactment, our overall test set forth in Collins remains

unaltered. However, our unitary abuse of discretion standard has been modified

to comply with the act’s amendment to 18 U.S.C. § 3742(e). United States v.

Jones, 332 F.3d 1294, 1299 (10th Cir.), cert. denied, 124 S. Ct. 457 (2003).



      This new standard of review was articulated in Jones. First, we determine

whether the district court provided specific reasons for the departure in a written


                                          -6-
order or judgment. Id. Next, under a de novo standard of review, we consider

whether the district court relied on permissible factors in its departure decision,

and whether the departure was supported by sufficient facts. Id. at 1299-00.

Finally, we review the reasonableness of the district court’s degree of departure

under an abuse of discretion standard. Id. at 1300. We review the district court’s

underlying findings of fact only for clear error. Id. at 1300 n.9.



DISCUSSION

A. Whether the District Court Stated its Reasons for Departure with
Specificity

      Under 18 U.S.C. § 3553(c)(2), a district court must set forth with

specificity its reasons for departure in a written order of judgment. During the

November 25, 2002 sentencing, and in its December 17, 2002 judgment, the

district court stated its reasons for the upward departure from the guideline range

in this case: the departure “more accurately [reflects Ms. Longmire’s] criminal

history and the likelihood that [she] will commit other crimes.” More

specifically, at sentencing, the district court determined the departure was

warranted because Ms. Longmire (1) received lenient sentences of probation for

her three prior felony convictions; (2) abused the bankruptcy process; and (3)

exhibited a “significant danger of recidivism” because of her lack of contrition

for her crimes. Thus, the district court provided its reasons for departure and,

                                          -7-
therefore, satisfied the requirements of § 3553(c)(2).



B. Whether the District Court’s Departure was Permissible

      As previously discussed, in making its upward departure determination, the

district court found Ms. Longmire’s criminal history category did not accurately

reflect her criminal history and a strong likelihood existed she would commit

similar crimes in the future. These factors are permissible grounds for a

departure and fall squarely within the purview § 4A1.3, an encouraged basis for

departure. See Collins, 122 F.3d 1304. Section 4A1.3 of the Guidelines

specifically provides “[i]f reliable information indicates that the criminal history

category does not adequately reflect the seriousness of the defendant’s past

criminal conduct or the likelihood that the defendant will commit other crimes,

the court may consider imposing a sentence departing from the otherwise

applicable guideline range.” All three justifications made by the district court fall

squarely within § 4A1.3 and express the district court’s concern for Ms.

Longmire’s future criminal conduct.



      In explaining its decision to depart under § 4A1.3, the district court first

pointed out Ms. Longmire received only probation for all three of her prior

felonies for fraud-related crimes. Despite these lenient sentences, the district


                                         -8-
court found Ms. Longmire failed to take these “opportunities to turn [her] life

around.” Both § 4A1.3(e) and the Commentary Background section of this

provision find upward departures available where a defendant’s criminal history is

deemed under-represented because of prior lenient sentences, see § 4A1.3(e)(5);

§ 4A1.3, comment. backg’d (2000) (“defendants ... likely to have received

repeated lenient treatment ... may actually pose a greater risk of serious

recidivism.”), as does case law from this circuit. See United States v. Caldwell,

219 F.3d 1186, 1194 (10th Cir. 2000) (noting Guidelines discuss prior lenient

sentences as a permissible basis for an upward departure); United States v.

Stumpf, 938 F.2d 172, 174 (10th Cir. 1991) (same).



      Ms. Longmire mistakenly asserts the district court utilized an impermissible

ground as a basis for departure. In so doing, she erroneously reframes the district

court’s explanation for departure simply as Ms. Longmire’s receipt of probation

in her prior convictions. It is clear from the record the district court was not

concerned by only probation as punishment for the prior convictions, but with

how these lenient sentences contributed to Ms. Longmire’s attitude toward her

criminal activities. 2 Specifically, the district court found her “doomed to repeat


      2
         We also reject Ms. Longmire’s contention that only two not three prior sentences
of probation should be considered, as one conviction already constituted one point in her
criminal history score. While the conviction was already counted, the fact she received

                                           -9-
the same mistakes over and over again” unless something altered her attitude.

The district court further noted she had an opportunity for counseling to address

her problems, but failed to attend consistently. It is clear from the record the

district court’s concern with the prior lenient sentences related to its finding of

Ms. Longmire’s cavalier attitude toward her crimes, thus making her a likely

candidate for recidivism. Therefore, this explanation supports an upward

departure in this case.



       Next, the district court recognized Ms. Longmire’s multiple bankruptcy

filings as another indicator of her risk of recidivism. When considered in

conjunction with her prior fraud convictions, the district court found these filings

compelling evidence of the “significant disconnect between Ms. Longmire’s

apparent professional caring and concern and responsibility in the nursing

profession and the way she treats her financial obligations.” In these bankruptcy

filings, the district court found Ms. Longmire used three different social security

numbers and varied spellings of her name. Additionally, the district court noted

her most recent filing was dismissed under 11 U.S.C. § 109(g), as abusive of the



only probation for her conviction was not. Moreover, even if the district court had
considered only the two prior probation sentences, they still represent prior lenient
sentences underrepresented in her criminal history and likely related to her cavalier
attitude.


                                            -10-
bankruptcy system. 3



       Again, Ms. Longmire attempts to reframe the issue by arguing the district

court erroneously considered the fact she filed for bankruptcy as its basis for its

upward departure decision. However, it is clear the district court pointed to the

filings as only another example of Ms. Longmire’s long history of illicit financial

dealings, including falsifying social security numbers and varying her name. A

sentencing court has “great latitude to determine the use of information presented

for sentencing.” United States v. Concha, 294 F.3d 1248, 1253 (10th Cir. 2002)

(quotation marks and citation omitted), cert. denied, 537 U.S. 1145 (2003).

Although not criminal convictions, clearly the district court correctly found Ms.

Longmire’s questionable bankruptcy filings further evidenced her predilection for

fraud and indicated her likelihood to commit similar crimes in the future. See

e.g., Concha 294 F.3d at 1253 (finding foreign criminal convictions and charges

permissible bases for departure).


       3
          In her brief, Ms. Longmire contends the district court misrepresented why the
bankruptcy court dismissed her last bankruptcy petition, as the dismissal was merely for
failure to appear and prosecute her case, and not “abusive of the bankruptcy system.”
However, Ms. Longmire fails to point out dismissal arose because she failed to appear or
respond to the bankruptcy judge’s order to show cause why her case should not be
dismissed as “abusive of the bankruptcy system” after filing five bankruptcy petitions,
with the last only thirteen months since her latest discharge.Accordingly, the district court
did not misrepresent the dismissal.


                                            -11-
      Finally, the district court justified its departure on Ms. Longmire’s lack of

concern for her finances and her failure to take responsibility for her actions. As

the district court specifically told Ms. Longmire, “until ... you understand why

you make these choices ... you are doomed to repeat the same mistakes over and

over again”; and “there is a significant danger of recidivism unless you come to

terms with why you behave the way you behave.” Although Ms. Longmire argues

the district court impermissibly relied on her mental and emotional condition as a

factor for upward departure, it is clear the district court again only cited Ms.

Longmire’s attitude to illustrate her likelihood to offend in the future. Having

reviewed the reasoning behind the upward departure, we conclude the district

court’s decision is sound.



C. Heartland Analysis

      Having concluded the grounds for departure are permissible, we next

consider whether the factors relied on by the district court in making its heartland

determination are justified by the facts of this case. Under 18 U.S.C.

§ 3553(b)(1), a district court may depart if “there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the guidelines.”




                                         -12-
      Here, the district court concluded Ms. Longmire’s case was outside the

heartland of social security number misuse cases based on the factors discussed

above, in addition to her past history of similar offenses. All three of her prior

felony convictions are fraud-related. Her first felony conviction resulted from her

use of a forged check from a former employer. Her second resulted from her

fraudulent deposit of another employer’s check into her bank account. And her

third conviction resulted from her use of another’s identity to secure a loan. Ms.

Longmire’s history of similar crimes, in addition to the factors discussed above,

are sufficient to place her outside the heartland. See United States v. Proffit, 304

F.3d 1001, 1012 (10th Cir. 2002) (ruling the fact defendant’s past conviction was

extremely similar to his present conviction and his high potential for recidivism

were sufficient to justify an upward departure); United States v. Whitehead, 912

F.2d 448, 452 (10th Cir. 1990) (same). Ms. Longmire’s contention her uncounted

convictions are too few to place her outside the heartland is unconvincing as this

court has set no benchmark number of past convictions required. Therefore, after

review of the record, we agree with the district court that the circumstances of

Ms. Longmire’s case are atypical of defendants with criminal history category II

and warrant a departure.




                                         -13-
D. Whether the Departure was Reasonable

         Finally, we examine whether the district court’s departure from the

applicable guideline range was reasonable. Generally, we require a district court

to provide a reasoned explanation justifying the increased sentence. Proffit, 304

F.3d at 1012. However, where a district court satisfies the three elements

discussed above, and its departure is the smallest departure possible, a detailed

explanation is not required. Id. at 1013. Because the district court increased the

departure by the smallest possible degree and satisfied the elements above, we

conclude the departure in Ms. Longmire’s case is reasonable, regardless of

whether the district court provided a sufficiently detailed explanation. 4



E. Notice Requirement

         In addition to challenging the district court’s grounds for departure, Ms.

Longmire also contends the district court provided insufficient notice it would

consider her bankruptcy filings and her inability to conform her behavior in

deciding to depart upward. We conclude Ms. Longmire’s contention is without

merit.




         We note Ms. Longmire concedes in her brief the departure was reasonable and
         4

contests only the first three Jones criteria already discussed.


                                          -14-
      In Burns v. United States, 501 U.S. 129, 138-39 (1991), the United States

Supreme Court held that before departing upward on a ground not identified in

either the presentence report or in a prehearing submission by the government, a

district court must “give the parties reasonable notice that it is contemplating such

a ruling ... and must specifically identify the ground on which [it] is

contemplating an upward departure.” In practical terms, insufficient notice

occurs only in the “extraordinary case in which the district court, on its own

initiative and contrary to the expectations of both [parties], decides that the

factual and legal predicates for a departure are satisfied.” Id. at 135.



      The presentence report and the government’s motion for upward departure

both provided Ms. Longmire with sufficient notice the district court might

consider her prior bankruptcy filings and her inability to conform her behavior in

deciding whether to depart upwards. First, with respect to her prior bankruptcy

filings, the government’s motion for upward departure specifically noted “[Ms.

Longmire] has filed [for] bankruptcy five times using three different social

security numbers” and her “bankruptcy filings indicate fraud potential based on

the different social security numbers used and the number of times [she]

attempted to obtain bankruptcy relief.” In its motion, the government pointed to

this information, along with Ms. Longmire’s criminal history, to specifically


                                         -15-
argue for an upward departure. 5 Having received this motion, Ms. Longmire

cannot argue she was not put on notice of this ground for upward departure.



       Likewise, there is also mention of Ms. Longmire’s inability to conform her

conduct in the government’s motion, as well as in the presentence report. As the

government explained, “[Ms. Longmire] has a pattern of using fraud to obtain

funds illegally even though she has maintained steady employment .... She

continues in this criminal conduct even when serving a probationary sentence

which included mental health treatment.” As a result, the government asserted

Ms. Longmire’s “past similar criminal conduct and her defiance of court orders

and continued fraud and deceit call for lengthy imprisonment as the only

remaining option to address punishment, deterrence, and the safety of the

community.” Similarly, the presentence report also justified its advisement of an

upward departure by noting Ms. Longmire had been given opportunities in the

past to assist her in conforming her conduct – like mental health counseling – but

failed to change her behavior. Because this contested ground for departure was



       5
          It should be noted the presentence report also mentioned her bankruptcy filings.
Albeit not directly alleging misconduct, the report specifically notes Ms. Longmire’s use
of different social security numbers in these filings. Further, it is clear from the report the
district court requested further information concerning these filings, thus placing Ms.
Longmire on notice the district court was investigating her bankruptcy filings.


                                             -16-
readily apparent in the government’s motion of upward departure and the

presentence report, we conclude Ms. Longmire’s claims of insufficient notice are

unfounded.



CONCLUSION

       As discussed, we conclude the district court properly departed upward

grounded on the finding Ms. Longmire’s criminal history does not adequately

reflect the seriousness of the defendant’s past criminal conduct or the likelihood

the defendant will commit other crimes. Based on the facts in the record, the

district court also correctly determined this case was outside the heartland of

typical cases under the Guidelines. We therefore AFFIRM the sentence of the

district court.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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