                       Revised December 10, 1998

                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                               No.    97-20845




                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                     VERSUS

                            SAMMIE LEE NEVELS,


                                                      Defendant-Appellant.



             Appeal from the United States District Court
                  For the Southern District of Texas

                             November 9, 1998

Before SMITH, DUHÉ, and WIENER, Circuit Judges

DUHÉ, Circuit Judge:

     Sammie Lee Nevels (“Nevels”) pleaded guilty to two counts of

possession    of   stolen   mail   for   possession   of   a   stolen   social

security check and a stolen sweepstakes promotion.              In computing

Nevels’ offense level under the United States Sentencing Guidelines

(“Guidelines”), the district court increased the base offense level

by two under §2B1.1(b)(2) based on theft from a person.             Further,

the court departed above the Guidelines’ maximum range, because

Nevels’ behavior was egregious and Nevels had not disclosed his
total involvement. Nevels appeals the increased base offense level

and the upward departure.        We affirm.



I.   Background

     On January 3, 1997, an unidentified individual stole two

bundles of mail containing Social Security checks from a United

States Postal Service letter carrier at gunpoint.              The bundles of

mail, minus the Social Security checks, were recovered about eight

blocks away approximately thirty minutes after the theft.                Nevels’

fingerprints were on a sweepstakes promotion and Dimitris Simpson’s

fingerprints were on several pieces of mail in the recovered

bundles.

     Three months later, an unidentified individual broke into a

Postal Service vehicle and stole a bundle of mail, including social

security    checks.     While     the   Postal       Inspection    Service   was

investigating an attempt by Simpson to cash a check from the bundle

stolen     from   the   Postal    vehicle,       a    store   owner    provided

documentation that Nevels had cashed a Social Security check from

the bundles stolen in January.              Nevels cashed a check for $653

payable to Johnie M. Ward on January 3, 1997, using               identification

with Ward’s name but Nevels’ picture.           Nevels admitted that he had

received and cashed a social security check payable to Johnie M.

Ward.    Nevels stated that the same couple who gave him the check

helped him obtain the false identifications, and paid him 35% of

the check proceeds.     Nevels also admitted that he had been cashing

                                        2
checks for the couple since October 1996.

      Nevels pleaded guilty to two counts of possession of stolen

mail.   The Presentence Investigation Report (“Report”) calculated

a total offense level of seven, based on: (1) a base offense level

of four under 1997 U.S.S.G. § 2B1.1(a), which applies to the most

basic property offenses, see 1997 U.S.S.G. § 2B1.1(a) introductory

comment;   (2)    a   one   level    increase   under    1997   U.S.S.G.   §

2B1.1(b)(1)(A) because the amount of the check exceeded $100; (3)

a two level increase under 1997 U.S.S.G. § 2B1.1(b)(2) because the

theft constituted relevant conduct and the theft was from a person;

(4) a two level increase under 1997 U.S.S.G. § 2B1.1(b)(4)(A)

because the crime required more than minimal planning; and (5) a

two level decrease under 1997 U.S.S.G. § 3E1.1(a) for acceptance of

responsibility.       The   Report   also   calculated   Nevels’   criminal

history category as IV.1     The Report suggested use or possession of

a weapon during the commission of the offense as a possible ground

for upward departure under 1997 U.S.S.G. § 5K2.6. Nevels objected

to the two level increase based on theft from a person as relevant

conduct, and the upward departure based on use or possession of a

weapon.

      At sentencing, the district judge overruled Nevels’ objections

and adopted the Report’s findings and recommendations.             Further,


  1
   A total offense level of seven and a criminal history category
of IV translated to a Sentencing Guidelines imprisonment range of
8 to 14 months.

                                      3
the judge upwardly departed to a base level of 142 under 1997

U.S.S.G. § 5K2.0 because of              the egregious nature of Nevels’

conduct3 and his lack of truthfulness.             He sentenced Nevels to 33

months imprisonment, three years supervised release, and $653 in

restitution.         Nevels appeals the two level upward adjustment for

theft from a person, and the seven level upward departure based on

egregious behavior and lack of truthfulness.



II.      Two Level Increase in Nevels’ Base Level Based on Relevant
         Conduct

A.       Standard of Review

         The     district   court’s   determination       of    what   constitutes

relevant conduct for sentencing purposes is a factual finding. See

United States v. Peterson, 101 F.3d 375, 384 (5th Cir. 1996).

The      trial    judge’s   factual   findings     must    be    supported   by   a

preponderance of the evidence.               See United States v. Sotelo, 97

F.3d 782, 799 (5th Cir. 1996). We review factual findings for

sentencing purposes for clear error.             See United States v. Narviz-

Guerra, 148 F.3d 530, 540 (5th Cir. 1998).



B.       Analysis

     2
   A base level of 14 and a criminal history category of IV
translate to a range of 27 to 33 months.
     3
   The judge comments at length on the Social Security recipients’
reliance on their checks for the necessities of life, and the
stress and anxiety resulting when the checks are not promptly
received.

                                         4
         The district judge increased Nevels’ base level by two for the

specific offense characteristic “theft from the person of another”

under § 2B1.1(b)(2). The Guidelines permit a judge to “hold a

defendant accountable for all relevant conduct.”        United States v.

Maseratti, 1 F.3d 330, 340 (5th Cir. 1993), cert. denied, 510 U.S.

1129 (1994).       A defendant who is part of a “jointly undertaken

criminal activity”4 is accountable for “all reasonably foreseeable

acts . . . of others in furtherance of the . . . activity.”             1997

U.S.S.G. § 1B1.3(a)(1)(B); 1997 U.S.S.G. § 1B1.3(a)(1)(B) comment

2.       However, conduct occurring before a defendant joined the

criminal venture is not “reasonably foreseeable.”        1997 U.S.S.G. §

1B1.3(a)(1)(B) comment 2; see also United States v. Carreon, 11

F.3d 1225, 1235-38 (5th Cir. 1994).

         Nevels agrees that the mail was stolen from the person of

another.      However, he disputes that this theft from a person is

relevant conduct      for   his   sentencing.   He   maintains   that    the

government has no evidence that he robbed the letter carrier.

Further, the government has no evidence that he was part of any

joint criminal activity before he cashed the check, thus theft from

the person of the letter carrier was not reasonably foreseeable.

         The district judge’s determination that Nevels’ involvement in

the joint criminal activity preceded his cashing the check is not

     4
   Criminal activity   includes “a criminal . . . scheme . . .
undertaken by the defendant in concert with others, whether or not
charged as a conspiracy . . . .” 1997 U.S.S.G. § 1B1.3(a)(1)(B) &
comment 2.

                                      5
clearly erroneous. First, Nevels admitted that he had been cashing

checks for the couple since October 1996.             Second, fingerprints of

both Nevels and Simpson were on mail in the bundles recovered just

30 minutes after and about eight blocks from the scene of the

January robbery. Third, Nevels admitted that he received the check

from a couple who also provided his fake identifications, and

presumably to whom he gave the money from the cashed check, minus

his 35% share.

     Further, the district judge’s determination that theft from

the person of another was reasonably foreseeable and furthered the

joint   criminal     activity   is    not   clearly    erroneous.      A   judge

determining the scope of a jointly undertaken criminal activity may

consider “any . . . implicit agreement fairly inferred from the

conduct   of   the     defendant      and   others.”       1997     U.S.S.G.   §

1B1.3(a)(1)(B) comment 2.            The district judge could reasonably

infer from the scheme to cash stolen checks that Nevels should have

reasonably foreseen that checks might be stolen from the person of

a letter carrier.

     Although the district judge did not explicitly state that

Nevels jointly undertook criminal activity, and that theft from the

person of another was reasonably foreseeable and in furtherance of

this joint activity, these conclusions are reasonably clear in the

district court’s findings. See United States v. Lghodaro, 967 F.2d

1028, 1030 (5th Cir. 1992).



                                        6
III.    Upward Departure

A.   Standard of Review

       We review the district judge’s departure from the Guidelines

for abuse of discretion.          See     Koon v. United States,518 U.S. 81,

98 (1996); United States v. Arce, 118 F.3d 335, 339 (5th Cir.

1997).      There is no abuse of discretion if the judge provides

acceptable reasons for departure and the degree of departure is

reasonable.     See United States v. Clements, 73 F.3d 1330, 1341 (5th

Cir. 1996).



B.   Analysis

       The district judge upwardly departed from the Guidelines under

§ 5K2.0 although the Report did not recommend such a departure. He

boosted Nevels’       offense     level    from   seven    to   14   for   behaving

egregiously     and   for   not   being       truthful    concerning   his   total

involvement in the scheme.         Nevels asserts that the district judge

abused his discretion by upwardly departing on these bases, and

that the judge did not give adequate notice of his intent to

upwardly depart.

       1.    Upward departure based on Nevels’ egregious conduct
             and his untruthfulness about his total involvement

       The Guidelines carve out a “‘heartland,’ a set of typical

cases embodying the conduct that each guideline describes.”                   1997

U.S.S.G. ch. 1, pt. A, intro. comment 4(b).               The district judge can

depart from the Guidelines         based on factors “not adequately taken


                                          7
into consideration by the Sentencing Commission in formulating the

guidelines,”    with    the    exception       of    several   factors   that    the

Guidelines explicitly exclude from consideration.                 1997 U.S.S.G. §

5K2.0.     The judge can consider acts and factors that are not

necessarily criminal or illegal when deciding whether or how much

to   depart.    See     Arce,    118    F.3d    at    340-41   (citing    specific

Guidelines provisions and comments to justify this finding).

       The judge did not abuse his discretion in upwardly departing

based on Nevels’ egregious conduct. Section 2B1.1 covers the most

basic property offenses, and warrants an upward departure if the

monetary loss adjustment “does not fully capture the harmfulness of

the conduct.”    1997 U.S.S.G. §         2B1.1 commentary n.15.          The judge

provided acceptable reasons for his departure, focusing on the fact

that   Social   Security       checks   are     government     securities;      that

recipients rely on these checks for subsistence; that Nevels had

participated in this scheme for several months; that Nevels had

jointly   participated        with   others;    that     Nevels   had    used   fake

identifications.       The degree of the departure is also reasonable,

since the ultimate sentencing range of 27-33 months is well within

the five year statutory maximum for possession of stolen mail.

       We need not address whether the judge abused his discretion in

upwardly departing based on Nevels’ “untruthfulness.”                      Even if

Nevels’ “untruthfulness” were an invalid reason for departure, “the

district court would have imposed the same sentence absent reliance



                                         8
on [this] invalid factor[].”5           Koon, 518 U.S. at 113.

      Nevels claims that the Guidelines account for both bases for

the judge’s upward departure.           The Guidelines include a vulnerable

victim adjustment, permitting the judge to increase two levels from

the base level if the defendant “knew or should have known that a

victim of the offense was unusually vulnerable due to age, . . .

[or] was otherwise particularly susceptible.”                    1997 U.S.S.G. §

3A1.1. The Guidelines also include a downward adjustment for

acceptance of responsibility. See 1997 U.S.S.G. § 3E1.1.                     Nevels

pled guilty to both counts          of possession of stolen mail, admitted

to the elements of the crime, and expressed remorse, entitling him

to a downward adjustment.           Nevels asserts that because refusal to

admit relevant conduct beyond the convicted offense will not

justify a denial of an adjustment for acceptance of responsibility,

such refusal can not provide the basis for an upward departure.

      We   need    not    resolve   whether     the   Guidelines    account      for

“untruthfulness.”          Even    if   the   Guidelines   explicitly       include

adjustments       for    certain   factors,    the    district    judge    has   the

discretion to determine that the particular conduct at issue is

outside the “heartland,” because the conduct is of “a kind or to a

degree not adequately accounted for in the Guidelines.” See United

States v. Arce, 118 F.3d 335, 340 (5th Cir. 1997).                        The judge

determined Nevels’ unadjusted base level under 1997 U.S.S.G. §

  5
   See supra n.3 (noting that the judge repeatedly stressed the
egregious nature of Nevels’ conduct).

                                          9
2B1.1(a).      Section 2B1.1(a) applies to the most basic property

offenses and warrants an upward departure if the monetary loss

adjustment “does not fully capture the harmfulness of the conduct.”

1997    U.S.S.G.      §   2B1.1   commentary         n.15.       Nevels’    extensive

involvement     as    discussed     above       is   “of   a   kind   or   degree   not

adequately accounted for” by § 2B1.1(a). Therefore, his egregious

conduct constitutes an acceptable reason for the judge’s departure.

Further, the degree of the departure is reasonable, since the 33

month sentence is well below the five year statutory maximum.                        We

need not address the issue of Nevels’ “untruthfulness,” since “the

district court would have imposed the same sentence absent reliance

on [any] invalid factor[].”6          Koon, 518 U.S. at 113.

       2.    The district judge’s failure to give notice of the upward
             departure

       The    judge   must   give    the    parties        reasonable      notice   and

specifically identify the grounds for an upward departure if he

departs for reasons not included in the Sentencing Report or other

presentencing submissions by the parties.                      See Burns v. United

States, 501 U.S. 129, 138-39 (1991).                  We review Nevels’ lack of

notice claim for plain error because he did not object to this

aspect of departure in the district court on notice grounds.                        See

United States v. Milton,147 F.3d 414, 416, 418 (5th Cir. 1998).

Even assuming plain error, we reverse only if the error “affects


  6
   See supra n.3 (noting that the judge extensively commented on
the egregiousness of Nevels’ conduct).

                                           10
the substantial right of the defendant” or “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

United States v. McDowell, 109 F.3d 214, 216 (5th Cir. 1997).            The

defendant has the burden of proving       prejudice from the error.      See

United States v. Olano, 507 U.S. 725, 734 (1993).          Nevels has not

carried his burden of proving prejudicial error. He simply asserts

that if he had known the judge would view theft of a Social

Security check as egregious conduct because the theft would cause

the vulnerable recipient unusual despair, he could have directed

the judge to the vulnerable victim       adjustment, which carries only

a two level adjustment.      For the reasons stated above, the judge

would   have   had   the   discretion    to   upwardly   depart   from   the

Guidelines by seven levels even if the vulnerable victim adjustment

applied to the circumstances of this case.

     AFFIRMED.




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