                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1129
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
Jeffrey Bruce Cramer,                   *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: September 14, 2004
                                Filed: July 21, 2005
                                 ___________

Before RILEY, LAY, and SMITH, Circuit Judges.
                             ___________

SMITH, Circuit Judge.

      Jeffrey Bruce Cramer pleaded guilty to transporting a minor with intent to
engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). In his plea
agreement, Cramer stipulated to the application of United States Sentencing
Guidelines ("U.S.S.G.") § 4B1.5(a) as a repeat and dangerous sex offender against
minors. Over Cramer's objection, the government sought and received an upward
departure under U.S.S.G. § 4A1.3 because Cramer's criminal history was substantially
underrepresented. Cramer contends that no reliable grounds existed to support the
district court's1 upward departure. We find no error and affirm.

                                       I. Background
       On March 20, 2002, police arrested Cramer, a truck driver, in West Memphis,
Arkansas. Police found him with a sixteen-year-old runaway girl who had been
missing from Arizona since May 2000. The minor had been traveling with Cramer in
his tractor-trailer truck for nearly two years. The officers searched Cramer's truck and
found Polaroid photographs of the girl stashed in a first-aid kit. Many of the
photographs depicted the girl engaging in sexually explicit activities with Cramer. In
addition, some of the pictures depicted the teenage girl performing explicit sexual
acts upon herself with various inanimate objects. Those objects were also found in
Cramer's truck along with several magazines containing pornographic images of
minors.

      Cramer was indicted by a grand jury sitting in the Eastern District of Arkansas
on four charges: (1) transporting a minor for the purpose of producing child
pornography; (2) transporting a minor with the intent to engage in sexually explicit
conduct;2 (3) transporting child pornography; and (4) possessing child pornography.
Cramer pleaded guilty to the second charge and the government dismissed the
remaining three.

      In the plea agreement, Cramer stipulated that he should be sentenced as a
repeat child sex offender under U.S.S.G. § 4B1.5. Cramer also reserved the right to
seek a downward departure. However, the government reserved the right to seek an
upward departure under U.S.S.G. § 4A1.3. Cramer's presentence report (PSR) stated

      1
       The Honorable William R. Wilson Jr., United States District Judge for the
Eastern District of Arkansas.
      2
       18 U.S.C. § 2423(a).
                                          -2-
that his criminal history category substantially underrepresented the seriousness of
his criminal history or his likelihood to recidivate thus making him eligible for an
upward departure based on U.S.S.G. § 4A1.3. Cramer objected to the statement in the
PSR that he had failed to complete a state-court-ordered sex-offender program and
to its conclusion that he had a likelihood to recidivate.

       At Cramer's sentencing hearing, the government called the probation officer
who prepared the PSR and the officer who investigated the case to testify in defense
of the PSR and in support of the government's upward departure motion. The district
court overruled Cramer's objections to the PSR. Cramer also objected to the
application of U.S.S.G. § 4A1.3, arguing that the § 4B1.5(a) enhancement to his
offense level had already taken into consideration his likelihood to recidivate. At the
conclusion of the hearing, the district court granted the government's motion for an
upward departure. Applying U.S.S.G. § 4B1.5(a), the district court raised Cramer's
criminal history category to a level V and set a guidelines sentencing range of 168 to
210 months. The district court then applied U.S.S.G. § 4A1.3 and made an upward
departure, sentencing Cramer to 235 months' imprisonment along with five years'
supervised release.

       On appeal, Cramer makes two arguments against the district court's upward
departure for inadequacy of criminal history category under U.S.S.G. § 4A1.3. First,
he contends that the upward departure unfairly double counts when an enhancement
based on § 4B1.5(a) has already been imposed. Second, he argues that there is
insufficient evidence to support the district court's upward departure.

                                   II. Discussion
                                  A. Booker Error
       Prior to oral argument, Cramer filed a letter pursuant to Fed. R. App. P. 28(j)
arguing that his Sixth Amendment rights were violated under authority of the United
States Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).

                                          -3-
The reasoning in Blakely was extended to the Federal Sentencing Guidelines. See
United States v. Booker, 125 S. Ct. 738 (2005) (Stevens, J.). Cramer, however, failed
to make a Sixth Amendment argument to the district court. As such, we will review
his Booker claim for plain error. See United States v. Pirani, 406 F.3d 543, 550–51
(8th Cir. 2005) (en banc).

        To establish plain error, Cramer must show that (1) there was an error; (2) the
error was plain; and (3) that the error affected substantial rights. Johnson v. United
States, 520 U.S. 461, 466–67, 117 S. Ct. 1544, 137 L.Ed.2d 718 (1997). Even when
all three conditions are met, relief is discretionary with an appellate court and will be
exercised only when "the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings." Id. (internal quotations omitted). In Pirani, we
held that a Booker error is plain. Pirani, 406 F.3d at 552–53. However, we explained
that the error only "affects substantial rights" if there is a reasonable probability that
but for the error the defendant would have received a more favorable sentence. Id.
Nothing in the record indicates that the district court would have imposed a more
favorable sentence under an advisory system, and, thus, Cramer cannot show that the
Booker error affected his substantial rights. Pirani, 406 F.3d at 547.3

                   B. Duplication of Sentencing Enhancements
      Cramer argues that the district court erred in departing upward based upon an
understatement of his criminal history when the district court had already elevated his


      3
        We note that Cramer's additional belated argument based on Shepard v. United
States, 125 S. Ct. 1254 (2005), likewise fails under the plain error standard of review.
See United States v. Johnson, 408 F.3d 535, 540 (8th Cir. 2005) ("The Supreme Court
has never overruled its decision in Almendarez-Torres, and Shepard did not alter the
rule that a court may consider prior criminal history as a sentencing factor.").




                                           -4-
criminal history based upon his prior conviction for a sex offense. We review the
district court's interpretation of the Sentencing Guidelines de novo. United States v.
Clawson, 408 F.3d 556, 558 (8th Cir. 2005). The pertinent sections of the United
States Sentencing Guidelines provide:

      § 4B1.5. Repeat and Dangerous Sex Offender Against Minors
            (a) In any case in which the defendant's instant offense of
            conviction is a covered sex crime, § 4B1.1 (Career Offender) does
            not apply, and the defendant committed the instant offense of
            conviction subsequent to sustaining at least one sex offense
            conviction:

                   (1) The offense level shall be the greater of:

                                       ****
      § 4A1.3. Departures Based on Inadequacy of Criminal History Category
      (Policy Statement)
            (a) Upward Departures.–

                   (1) Standard for Upward Departure.–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.

                   (2) Types of Information Forming the Basis for Upward
                   Departure.–The information described in subsection (a)
                   may include information concerning the following:

                          (A) Prior sentence(s) not used in computing the
                          criminal history category (e.g., sentences for foreign
                          and tribal offenses).




                                         -5-
                           (B) Prior sentence(s) of substantially more than one
                           year imposed as a result of independent crimes
                           committed on different occasions.

                           (C) Prior similar misconduct established by a civil
                           adjudication or by a failure to comply with an
                           administrative order.

                           (D) Whether the defendant was pending trial or
                           sentencing on another charge at the time of the
                           instant offense.

                           (E) Prior similar adult criminal conduct not resulting
                           in a criminal conviction.

U.S.S.G. §§ 4B1.5(a), 4A1.3.

       According to the commentary, § 4A1.3 authorizes "the consideration of a
departure from the Guidelines in the limited circumstances where reliable information
indicates that the criminal history category does not adequately reflect the seriousness
of the defendant's criminal history or likelihood of recidivism." U.S.S.G. § 4A1.3,
cmt. background. Cramer points to United States v. Fawbush, 946 F.2d 584 (8th Cir.
1991) to support his argument that an upward departure is invalid if it is based on a
factor already considered in increasing a defendant's offense level and punishment.
Fawbush is distinguishable.

       In Fawbush, we held that a district court erred in making an upward departure
from the Guidelines based on the victim's age when the relevant provision of the
Guidelines had already accounted for victims of young age. The initial guideline
considered by the trial court specifically increased Fawbush's offense level four steps
based on the age of the victim. Id. at 585 (citing U.S.S.G. § 2A3.1(b)(2)(A)). In this
case, however, § 4B1.5(a) does not specifically consider the likelihood of recidivism


                                          -6-
or consider conduct that did not result in a conviction. Indeed, § 4B1.5(a) prohibits
consideration of conduct that did not result in a conviction.

       After holding that the trial court erred in departing upward based on the
victim's age, we held that the trial court properly considered prior conduct that
escaped conviction. Fawbush, 946 F.2d at 587. We explained that "[t]he guidelines
expressly permit upward departures where 'prior similar adult criminal conduct not
resulting in a criminal conviction' exists." Id. (quoting U.S.S.G. § 4A1.3(e) (1991)).
Fawbush sought reversal of the district court's upward departure, arguing that the
court erred in relying on the repetitive nature of his conduct. He contended his prior
conduct should have only been used to calculate his criminal history. We rejected
Fawbush's argument, and held that conduct that escapes conviction cannot be used
to calculate a defendant's criminal history score. Id. (citing U.S.S.G. § 4A1.2).
Pointedly stated, conduct which escapes conviction cannot be used to calculate
criminal history, but can be used to make an upward departure under § 4A1.3.

       In the instant case, application of U.S.S.G. § 4B1.5(a) and U.S.S.G. § 4A1.3
do not double count. Section 4B1.5(a) requires that the defendant have at least one
prior sex-offense conviction. In contrast, § 4A1.3 takes into account evidence of prior
sex-offense conduct that did not result in a sex-offense conviction.

       Cramer's prior sexual offense conviction was for raping a fifteen year old girl
in Oregon. This offense was used to compute his criminal history category. In making
the upward departure under § 4A1.3, the district court considered several factors
other than the Oregon conviction. In the seven years following that conviction,
Cramer engaged in sex-offense conduct that did not result in a conviction.
Specifically, Cramer violated his probation conditions by continuing to have contact
with minors and particularly minor females. Several times Cramer failed to comply
with his sex-offender treatment program. Notes from the treatment sessions he did
attend revealed that Cramer watched ten XXX-rated movies in adult bookstores.

                                          -7-
Moreover, his probation officer seized more than $300 in sexually explicit
pornography. Additionally, Cramer admitted to dreaming about touching the genitals
of minor-teenage girls. He possessed sexually explicit photographs of the victim in
this case along with magazines showing sexually explicit photographs of teenage
girls. These facts were not considered when calculating Cramer's criminal history
category and therefore can be used to establish a basis, independent of § 4B1.5(a), to
make an upward departure.

    Cramer also directs the court to the commentary accompanying § 4B1.5. The
commentary states:

      The guideline is intended to provide lengthy incarceration for offenders
      who commit sex offenses against minors and who present a continuing
      danger to the public. It applies to offenders whose instant offense of
      conviction is a sex offense committed against a minor victim. The
      relevant criminal provisions provide for increased statutory maximum
      penalties for repeat sex offenders and make those increased statutory
      maximum penalties available if the defendant previously was convicted
      of any of several federal and state sex offenses (see 18 U.S.C. §§ 2247,
      2426). In addition, section 632 of Public Law 102–141 and section 505
      of Public Law 105–314 directed the Commission to ensure lengthy
      incarceration for offenders who engage in a pattern of activity involving
      the sexual abuse or exploitation of minors. Section 401(i)(1)(A) of
      Public Law 108–21 directly amended Application Note 4(b)(i), effective
      April 30, 2003.

U.S.S.G. § 4B1.5, cmt. background (emphasis added). The commentary indicates that
§ 4B1.5 was intended to address, in some degree, the recidivism often associated with
sexual abuse. This comment notwithstanding, Cramer's exact argument has been
rejected, "[i]nclusion of a factor in the Guidelines calculation does not proscribe
departure based on consideration of the factor." United States v. Searcy, 299 F. Supp.
2d 1285, 1291 (S.D. Fla. 2003) (citing United States v. Melvin, 187 F.3d 1316, 1322
(11th Cir. 1999) (quoting Koon v. United States, 518 U.S. 81, 96, 116 S. Ct. 2035,

                                         -8-
135 L.Ed.2d 392 (1996))). Whatever overlap between § 4B1.5(a) and § 4A1.3 exists,
it is insufficient to bar their simultaneous application in this case. As such, the district
court did not err in applying § 4A1.3 after Cramer stipulated to the application of §
4B1.5(a).

                   C. Sufficiency of Credible Evidence to Depart
       Finally, Cramer contends that the government failed to produce sufficient facts
to justify an upward departure based on U.S.S.G. § 4A1.3. We will not overturn
factual determinations unless such findings are clearly erroneous. United States v.
Mashek, 406 F.3d 1012 (8th Cir.2005). We review the sentence imposed for
unreasonableness, judging it with regard to the factors in 18 U.S.C. § 3553(a). United
States v. Booker, 125 S. Ct. 738 (2005) (Breyer, J.).4

       Cramer objected to paragraphs 36 and 37 of the PSR that referenced notes
made by his prior sexual-treatment doctors. Nonetheless, in his objection, Cramer
acknowledged that some of the evidence was relevant and requested that paragraphs
36 and 37 be reduced to stating "that he failed sexual offender treatment and that the
doctor believed he was at a high risk to recidivate." Cramer did not object, however,
to paragraph 25 of the PSR, which reflects Cramer's multiple violations of probation
and parole for failing to attend sex-offender treatment and for continuing to have
contact with minors–both male and female.




       4
        Prior to the United States Supreme Court's ruling in Booker, we reviewed the
imposition of an upward departure for an abuse of discretion under the PROTECT
Act of 2003. United States v. Long Turkey, 342 F.3d 856, 859 (8th Cir. 2003). The
Supreme Court has directed circuit courts to apply its holdings in Booker to all cases
on direct review. United States v. Booker, 125 S. Ct. 738 (2005) (Breyer, J.) (citing
Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). While we review Cramer's Sixth
Amendment argument for plain error, we recognize that we are still obliged to apply
the appropriate standard of review on appeal.
                                            -9-
       When a defendant fails to make an objection to "specific factual allegations
contained in the PSR, a district court may accept the facts as true for purposes of
sentencing." United States v. Bougie, 279 F.3d 648, 650 (8th Cir. 2002). Cramer did
not contest that he violated probation and parole by failing to attend sex-offender
treatment and continuing to have contact with male and female minors. He
continually viewed pornographic materials and kept photographs of the victim in this
case stashed away in his truck. Cramer also admitted to dreaming about touching the
genitals of minor-teenage girls. In addition, he conceded that his doctors considered
him to be at a high risk to recidivate. These facts support the district court's finding
that Cramer's prior criminal record of a single child sex offense substantially
underrepresented his criminal history and likelihood to recidivate. Therefore, we
conclude that there is sufficient evidence to support an upward departure under
U.S.S.G. § 4A1.3.

      For the foregoing reasons, we conclude Cramer's sentence is reasonable and
affirm.
                      ______________________________




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