                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              February 28, 2007
                              No. 06-13223                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 04-00265-CR-JTC-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

WILLIE EDWARD HILL,
a.k.a. Willie Hill,
a.k.a. Ed Hill,
a.k.a. Edd Hill

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                            (February 28, 2007)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:

     Willie Edward Hill was sentenced to 36 months of imprisonment and six
years of supervised release after he pled guilty to six separate counts of knowingly

and wilfully distributing less than one gram of heroin, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)©) and § 851. Hill appeals his sentence, arguing that the

district court erred by adjusting his offense level upward by two levels, pursuant to

U.S.S.G. § 4A1.3, after finding that Criminal History Category VI of the

Sentencing Guidelines did not adequately take into account Hill’s criminal history.

Upon review, we discern no error in the district court’s decision to depart upward,

and, therefore, we AFFIRM.

I. BACKGROUND

      In May 2004 a grand jury charged Hill with six counts of knowingly and

wilfully distributing heroin in violation of 21 U.S.C. § 841. The charges stemmed

from six separate occasions between July 2003 and September 2003 in which Hill

sold heroin to an undercover officer in Atlanta. Citing 21 U.S.C. § 851, the

indictment also alleged that Hill had a previous conviction for possession of

cocaine. Hill initially entered a plea of not guilty to the charges contained in the

indictment.

      In September 2004, Hill moved to continue his trial, pending a hearing on

his competency. That motion was granted, and the question of Hill’s competency

to stand trial was referred to a magistrate judge. Both parties submitted evidence



                                           2
concerning Hill’s mental health. After a full competency hearing was held, the

magistrate judge issued a report and recommendation in which he concluded that

Hill was competent to stand trial. After weighing Hill’s objections to that report

and recommendation, the district court adopted the report and recommendation in

full, agreeing that Hill was competent. Thereafter, Hill pled guilty, without a plea

agreement, to all six counts contained in the indictment.

      Prior to the sentencing hearing, a pre-sentence investigation (“PSI”) report

was prepared in Hill’s case. The PSI assigned Hill a base offense level of 12, as

his crime involved the distribution of less than five grams of heroin. See U.S.S.G.

§ 2D1.1(c)(14). The PSI subtracted two levels from the offense level for Hill’s

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a). Hill’s resulting

offense level was 10.

      In reviewing Hill’s criminal history for purposes of assigning him a

Criminal History Category, the PSI listed approximately 50 prior adult criminal

convictions, for a range of offenses, including, among others: larceny; car theft;

assault; battery; criminal trespass; driving under the influence; aggravated assault

(two convictions); burglary (four convictions); and possession of cocaine (six

convictions). The first conviction, for larceny, occurred in 1959, when Hill was 17

years old, and the final conviction, for possession of cocaine, occurred in 2002,



                                          3
when Hill was 60 years old. For those convictions occurring between 1973 and

2002, the PSI set forth the particular facts and circumstances surrounding the

conviction.

      In assessing this criminal history, the PSI recommended a total of 14

criminal history points for Hill’s five cocaine possession convictions that occurred

between 1991 and 2002, pursuant to U.S.S.G. § 4A1.1(a)-(b). The PSI also

recommended an additional three points for a 1996 car theft conviction, also

pursuant to U.S.S.G. § 4A1.1(a), and an additional one point for a 1997 conviction

for theft by taking, pursuant to § 4A1.1©). Finally, because Hill committed the

present offense within two years following his release from prison on the 2002

cocaine conviction and while still on probation, the PSI added three additional

points. See U.S.S.G. §§ 4A1.1(d) and (e). Accordingly, the PSI determined that

Hill had a total of 21 criminal history points. Because Hill had more than 13

points, the PSI calculated his Criminal History Category as Category VI. See

U.S.S.G. Ch. 5 Pt. A.

      With an offense level of 10 and a criminal history category of VI, Hill’s

recommended sentencing range was 24 to 30 months of imprisonment. The PSI

also noted that Hill was subject to a statutory minimum supervised release period

of six years. See 21 U.S.C. § 841(b)(1)©). In addition, the PSI indicated that an



                                          4
upward departure under U.S.S.G. § 4A1.3 might be warranted, due to Hill’s serious

criminal history and the likelihood of recidivism.

      Prior to the sentencing hearing, the government moved for an upward

departure pursuant to U.S.S.G. § 4A1.3. See R1-44. The government noted that

the PSI’s criminal history included an additional 43 prior convictions–including

serious and violent felonies such as aggravated assault and burglary–for which no

criminal history points had been assessed. The government thus argued that the

sentencing range prescribed by the Guidelines “[did] not adequately take into

account the Defendant’s lifelong and extensive prior criminal history involving

violent crimes,” nor did it “take into account the high likelihood that the Defendant

will commit these same crimes again when released.” R1-44 at 2.

      At the sentencing hearing, the district court agreed with the government’s

argument that Hill’s Criminal History Category of VI was “understated” in light of

his “extensive record.” R5 at 9. In light of the court’s finding that Hill’s criminal

history was “extensive” and was not adequately reflected in the recommended

prison sentence of 24 to 30 months, id., as well as the court’s finding that the

likelihood of recidivism was high in Hill’s case, the court granted the

government’s motion for an upward departure pursuant to U.S.S.G. § 4A1.3.

Accordingly, the court chose to make an upward adjustment of two levels, from



                                           5
offense level 10 to offense level 12, which placed Hill’s sentencing range at 30 to

37 months of imprisonment. The court then imposed a sentence of 36 months of

imprisonment, followed by a term of supervised release of six years. Hill now

appeals, arguing that the district court committed error in making an upward

departure of two levels in imposing his sentence.1

                                      II. DISCUSSION

       Section 4A1.3(a)(1) of the Sentencing Guidelines permits a district court to

make an upward departure in imposing a sentence on a defendant “[i]f 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.” In determining whether

such a departure is warranted, the court may rely, among other things, on prior

criminal sentences that were “not used in computing the criminal history category.”

See U.S.S.G. § 4A1.3(a)(2)(A).


       1
          Hill has since completed his 36 month sentence; according to the Bureau of Prisons, he was
released in December 2006. That does not render his appeal moot, however, because a decrease in
Hill’s sentence on remand could affect the term of his supervised release. The term of Hill’s
supervised release would have begun to run upon his release from prison. If Hill were to receive
a lesser sentence on remand, the beginning date for the term of supervised release would have to be
pushed back to the date Hill should have been released. See United States v. Huang, 977 F.2d 540,
542 n.1 (11th Cir. 1992) (per curiam). Accord United States v. Cottman, 142 F.3d 160, 165 (3d Cir.
1998) (“[I]f we were to find an error in the application of the [] enhancement, the appropriate
sentencing range would be reduced . . . . This reduction would likely merit a credit against [the
defendant]’s period of supervised release for the excess period of imprisonment to which [the
defendant] was subjected.”).

                                                 6
      There are two types of upward departures under the Sentencing Guidelines:

a horizontal departure, in which a defendant’s Criminal History Category is

increased or decreased; and a vertical departure, in which a defendant’s criminal

offense level is increased or decreased. See United States v. Taylor, 88 F.3d 938,

947 (11th Cir. 1996). Hill’s case involves the latter type, in that the sentencing

judge increased his offense level from level 10 to level 12. Moreover, Hill’s case

presents the type of scenario in which the district court’s vertical departure was

made after Hill had already been determined to be subject to the maximum

Criminal History Category of VI. These types of upward adjustments are

expressly permitted under the Guidelines. See U.S.S.G. § 4A1.3, cmt. n.2(B) (“In

the case of an egregious, serious criminal record in which even the guideline range

for Criminal History Category VI is not adequate to reflect the seriousness of the

defendant’s criminal history, a departure above the guideline range for a defendant

with Criminal History Category VI may be warranted.”). We have held that, in

such circumstances, the district court is not bound to make step-by-step findings as

it travels up the vertical offense level axis, so long as its upward departure is

reasonable under the circumstances. See United States v. Smith, 289 F.3d 696, 711

(11th Cir. 2002); United States v. Dixon, 71 F.3d 380, 382-83 (11th Cir. 1995).

      Hill contends that the district court erred in making its upward departure, in



                                            7
that a large number of the crimes indicated in his criminal history were old and the

majority of the offenses in his record were not violent and not particularly serious

in nature.2 He also argues that he is over 60 years old and suffers from mental

handicaps, such that the court erred in concluding that he bore a high likelihood of

criminal recidivism.

       Appellate review of sentencing departure cases generally consists of three

steps. First, we must “determine whether the guidelines . . . preclude a district

court from relying upon [a particular factor] as a basis for [its] departure.” United

States v. Simmons, 924 F.2d 187, 191 (11th Cir. 1991). As this inquiry involves

the district court’s interpretation of the Guidelines, it is a question of law that we

review de novo. Id. “Second, we must determine whether there exists sufficient

factual support for the departure.” Id. Because this review implicates the district

court’s role as a fact-finder, we will not reverse its factual findings unless clearly

erroneous. United States v. Ellis, 419 F.3d 1189, 1191 (11th Cir. 2005) (quoting

United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005)). Finally, we must

ask: “if the circumstance was properly taken into account [in deciding to depart],


       2
         The Comment to § 4A1.3 states that an assessment of the “seriousness” of a defendant’s
criminal record involves an evaluation of the “nature of the prior offenses,” rather than their number.
U.S.S.G. § 4A1.3, cmt. n.2(B). Hill contends that many of the crimes set forth in his record were
“nuisance-type offenses like criminal trespass, small time property offenses. . . and low-level street
drugs offenses,” Appellant’s Br. at 19, such that his criminal history was not so “serious” as to
warrant a § 4A1.3 enhancement.

                                                  8
was the extent of the departure from the guideline range reasonable?” Simmons,

924 F.2d at 191 (citation, alteration, and internal quotations omitted). See also

United States v. Simmons, 368 F.3d 1335, 1341-42 (11th Cir. 2004).

       Applying the first step of that analysis, the Sentencing Guidelines expressly

permit a district court to consider prior criminal sentences that were “not used in

computing the criminal history category” in assessing whether an upward departure

is warranted. See U.S.S.G. § 4A1.3(a)(2)(A). Thus, the district court did not err in

considering Hill’s 43 prior convictions and sentences–crimes for which no

Criminal History Category points had been assessed–and in opting to depart

upward based on those crimes, due to the court’s determination that Hill’s Criminal

History Category (VI) under-represented his actual criminal history. Because

nothing in the record indicates that the district court “relied on any impermissible

factors in departing from the guidelines . . . , [w]e conclude that the first prong of

the departure analysis is satisfied.” Simmons, 924 F.2d at 192.3

       Hill argues that the district court’s reliance on the prior convictions set forth



       3
          Although it is true that the PSI also included a lengthy list of prior arrests with no actual
charges or convictions described therein, there is no evidence that the district court improperly relied
upon those arrests in opting to depart upward. While the court did not expressly differentiate
between Hill’s actual convictions and his other (non-convicted) arrests when it stated that Hill had
an “extensive” criminal record, R5 at 9, the court’s statement was likely referring to Hill’s 43
convictions–which were undisputed–rather than to Hill’s other, non-convicted arrests. In any event,
there is no evidence that the district court improperly based its § 4A1.3 upward departure on these
non-convicted arrests rather than on the prior criminal convictions.

                                                   9
in the PSI was analogous to the court’s relying on an arrest record. We have

previously held that a district court may not consider an arrest record alone in

opting to depart upward under U.S.S.G. § 4A1.3. See U.S.S.G. § 4A1.3(3); United

States v. Adudu, 993 F.3d 821, 824 (11th Cir. 1993). However, the PSI’s listing

of Hill’s prior convictions was more thorough than a standard arrest record; indeed,

of the convictions listed in the PSI, 16 of them contained detailed summaries,

culled from police reports, of the facts and circumstances of these crimes.

Therefore, as in United States v. Williams, the criminal history in the PSI–on

which the court relied–was “far more in depth than mere arrest records,” as it

“provide[d] a summary of the facts surrounding most of the incidents.” 989 F.2d

1137, 1142 (11th Cir. 1993) (per curiam) (citation and internal quotations omitted).

Because this was not a stand-alone arrest record but was rather reliable information

containing the facts relative to Hill’s prior criminal conduct, the district court

properly considered it in contemplating a departure. Id.

      In short, we discern no error in the court’s consideration of these prior

crimes, crimes which otherwise played no role in the calculation of Hill’s Criminal

History Category. There is no evidence that the district court’s decision was based

on factors that had already been fully considered in establishing the applicable

guideline range. See United States v. Santos, 93 F.3d 761, 763 (11th Cir. 1996)



                                           10
(per curiam). The court’s consideration of these earlier criminal sentences was

consistent with § 4A1.3.

        As to the second prong–whether there exists sufficient factual support for the

departure–we must inquire whether the district committed clear error in finding

that Hill’s particular criminal history was “extensive”; that the crimes contained

therein were of a violent and serious nature; and that Hill’s particular case bore a

likelihood of recidivism. R5 at 9. We conclude that these determinations were

proper.

        Hill’s criminal history–which was set forth in the PSI and was undisputed–

reflected approximately 50 separate adult criminal convictions for a range of

offenses, including, among others: larceny; assault; battery; criminal trespass;

driving under the influence; burglary; and aggravated assault (two separate

convictions, including one that involved the infliction of a gunshot wound and one

that involved an alleged sexual assault). Contrary to Hill’s contentions, these were

not merely nuisance-type crimes, and, moreover, a number of them were violent in

nature. While Hill points out that some of these convictions were rather old, there

is no prohibition against a court’s considering convictions that are remote in time

in deciding whether to depart upward under 4A1.3. See Williams, 989 F.2d at

1141.



                                          11
      In sum, we cannot find that the district court committed clear error in

concluding that Hill’s history was “extensive,” R5 at 9, and in thus determining

that the seriousness of this criminal history was not reflected in Hill’s Criminal

History Category of VI. See Santos, 93 F.3d at 763 (affirming upward departure of

two levels where the defendant’s Category VI score “did not reflect several other

prior convictions or conduct, including a burglary and conduct in connection with

an aggravated burglary”); see also United States v. Mellerson, 145 F.3d 1255, 1257

(11th Cir. 1998) (per curiam) (affirming three-level upward departure where the

defendant’s criminal history points tripled the number necessary for a Criminal

History VI). Nor can we conclude that the district court committed factual error in

concluding that Hill’s particular case bore a high likelihood of recidivism. To be

sure, Hill’s extensive history of criminality supports the district court’s ultimate

finding of a likelihood “that he would commit crimes in the future.” See Williams,

989 F.2d at 1141 (citation and internal quotations omitted).

      Finally, we must assess whether the extent of the court’s upward departure

under U.S.S.G. § 4A1.3 was reasonable. We conclude that it was. In this case, the

court assigned Hill an additional two offense levels, from level 10 to level 12,

explaining it was doing so to reach a resulting sentence of 36 months (rather than

24 to 30 months), as the court believed that a 36 month sentence was more



                                           12
“appropriate” and “reasonable,” “given all the facts and circumstances” in Hill’s

case. R5 at 9. Those unique circumstances included an extensive, nearly fifty-year

criminal history, one which was not adequately reflected in the resulting

Sentencing Guidelines range of 24 to 30 months. In light of the evidence, a district

court could quite reasonably have concluded that, based on Hill’s sordid criminal

history, he needed to be incarcerated for a period of time longer than that

recommended for a typical criminal with a total offense level of 10 and a Criminal

History of VI. We cannot say that the district court’ s decision to increase Hill’s

offense level by two additional levels, pursuant to § 4A1.3, was unreasonable

based on the facts of his case. This is especially so given the fact that, in upward

departures above Category VI, a district court is entitled to “use its discretion in

determining which offense level corresponds to the appropriate sentencing range

for a given defendant.” Dixon, 71 F.3d at 383. Finally, it bears pointing out that

Hill’s sentence of 36 months was well below the statutory maximum provided for

the offense,4 thereby bolstering our conclusion that the departure was reasonable.

See Taylor, 88 F.3d at 948 (noting that “[t]he sentence imposed . . . was well under

the statutory maximum” and affirming the sentencing departure as reasonable).




       4
         The statutory maximum as to each of Hill’s offenses is 30 years of imprisonment. 21
U.S.C. § 841(b)(1)(C).

                                            13
                                III. CONCLUSION

      In conclusion, having reviewed the record, we discern no error in the district

court’s decision to depart upward by an additional two levels pursuant to § 4A1.3,

based on its determination that the seriousness of Hill’s criminal history and his

likelihood of recidivism were not adequately reflected in his Criminal History

Category of VI. Accordingly, Hill’s sentence is AFFIRMED.




                                          14
