                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0606n.06
                            Filed: August 22, 2006

                                           No. 05-1434


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
JAMES LOSSIA,                                        EASTERN DISTRICT OF MICHIGAN

       Defendant-Appellant.

                                               /




BEFORE:        BATCHELDER, CLAY, and ROGERS, Circuit Judges.

       CLAY, Circuit Judge. Defendant James Lossia appeals the March 21, 2005 order of the

United States District Court for the Eastern District of Michigan, sentencing Defendant to 98 months

imprisonment and 36 months of supervised release for Defendant’s violations of 18 U.S.C. §§

1028(a)(7), 1029(a)(2), identify theft and access device fraud. Defendant argues that the district

court committed numerous errors in sentencing, including an unjustifiable upward departure from

the Sentencing Guidelines recommended range for his offense of conviction.

       For the following reasons, we AFFIRM Defendant’s sentence.
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                                                  I.

                                         BACKGROUND

       On September 28, 2004, a two-count information was filed against Defendant, alleging that

Defendant committed identify theft, in violation of 18 U.S.C. § 1028(a)(7), and access device fraud,

in violation of 18 U.S.C. § 1029(a)(2). Defendant waived indictment and thereafter entered a plea

agreement with the government, whereby Defendant agreed to a sentencing range of 77 to 96

months. As part of the plea agreement, the government also promised to move for a downward

departure in exchange for substantial assistance. The sentencing judge rejected this plea agreement,

however, at Defendant’s first sentencing hearing on February 25, 2005. The district court then gave

Defendant one month in which to reconsider his decision to plead guilty.

       After taking one month to reconsider his plea of guilty, Defendant decided to move forward

with a plea of guilty without the benefit of an accepted plea bargain. According to the Presentence

Investigation Report, Defendant’s adjusted offense level was 19 and his criminal history score a 28,

placing him in the highest criminal history category, Category VI. The recommended sentence was

therefore 63 to 78 months of incarceration. U.S. Sentencing Guidelines Manual § 5A (2004). The

district court determined that a greater sentence was called for, in large part because of Defendant’s

extensive criminal history of committing the same type of crimes. In reaching its sentencing

determination, the district court rejected Defendant’s objections to the Presentence Investigation

Report’s calculation of his criminal history score, determining that, contrary to Defendant’s

contentions, certain of Defendant’s prior offenses were not “related” such that they merited fewer

criminal history points. The district court therefore sentenced Defendant to 98 months incarceration,



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to be followed by three years of supervised release. The maximum statutory incarceration term for

Defendant’s violation of 18 U.S.C. § 1028(a)(7) is 15 years. 18 U.S.C. § 1028(b)(1). The maximum

statutory incarceration term for a violation of 18 U.S.C. § 1029(a)(2) is 10 years. 18 U.S.C. §

1029(c)(1).

       Defendant filed a timely notice of appeal.

                                                  II.

                                            ANALYSIS

A.     The District Court Correctly Calculated Plaintiff’s Advisory Guidelines Sentence

       After United States v. Booker, 543 U.S. 220 (2005), this Court reviews a sentence for both

procedural and substantive reasonableness. United States v. McBride, 434 F.3d 470, 476 n.3 (6th

Cir. 2006); United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). An element of reasonableness

is the correct calculation of the advisory Guidelines sentence. See United States v. Foreman, 436

F.3d 638, 644 (6th Cir. 2006); United States v. Richardson, 437 F.3d 550, 553-54 (6th Cir. 2006);

United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005); Webb, 403 F.3d at 383. Sentencing

with an improperly calculated advisory Guidelines range is unreasonable because the sentencing

court lacks a required input into the process. See 18 U.S.C. § 3553(a) (requiring sentencing courts

to consider the applicable Guidelines range); cf. United States v. Cortez, 166 Fed. App’x 196, 197

(6th Cir. 2006).

       In determining whether a district court correctly determined whether prior sentences were

“related” for purposes of Guideline § 4A1.2(a)(2), this Court “continue[s] . . . to apply the standards

of review . . . applied prior to Booker,” United States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005),



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and thus will not overturn a district court’s determination as to whether offenses are related unless

that court has committed a clear error, United States v. Horn, 355 F.3d 610, 613 (6th Cir.), cert.

denied, 541 U.S. 1082 (2004) (“We must review deferentially, that is, for clear error, the . . . district

court’s determination that [defendant’s] prior robbery convictions were not related.”).

        Defendant argues that his Guidelines’ sentence calculation was in error in two ways. First,

Defendant argues that the district court improperly refused to consider certain of his prior offenses

“related” for purposes of calculating Defendant’s criminal history category. Second, Defendant

argues that the district court improperly refused to grant the government’s motion for downward

departure under § 5K1.1 of the Guidelines for Defendant’s substantial assistance.

        1.      The District Court Did Not Commit Clear Error in Finding That Defendant’s Prior
                Convictions Were Not “Related” for Purposes of § 4A1.2(a)(2) of the Guidelines

        Defendant alleges that the district court erred in computing his criminal history category

because certain prior offenses were “related” within the meaning of § 4A1.2(a)(2) of the Sentencing

Guidelines. In particular, Defendant argues that these offenses were part of a “single common

scheme or plan” and should have been treated as one crime for sentencing purposes.

        Chapter Four, Part A of the Sentencing Guidelines delineates the assessment of points for

an offender’s prior sentences for the purpose of computing his Criminal History Category. Section

4A1.2 is the guideline provision used for determining whether prior sentences are to be treated as

one sentence for assigning criminal history points and states in pertinent part:

        (a)     Prior Sentence Defined.

                (1)     The term “prior sentence” means any sentence previously imposed
                        upon adjudication of guilt whether by guilty plea, trial, or plea of
                        nolo contendere, for conduct not part of the instant offense.

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               (2)     Prior sentences imposed in unrelated cases are to be counted
                       separately. Prior sentences imposed in related cases are to be treated
                       as one sentence for purposes of § 4A1.1(a), (b), and (c).


Application Note 3 to § 4A1.2 provides:

       Prior sentences are not considered related if they were for offenses that were
       separated by an intervening arrest . . . . Otherwise, prior sentences are considered
       related if they resulted from offenses that (1) occurred on the same occasion, (2)
       were part of a single common scheme or plan, or (3) were consolidated for trial or
       sentencing.

       In the instant case, Defendant argues that certain of his prior offenses were “related” because

they were part of a “single common scheme or plan.” This Court has held that “scheme” and “plan”

are “words of intention, implying that [offenses] have been jointly planned, or at least that . . . the

commission of one would entail the commission of the other as well.” United States v. Irons, 196

F.3d 634, 638 (6th Cir. 1999). The criminal defendant carries the burden of proving that prior

offenses and their sentences are “related.” Id.

       In the instant case, Defendant’s arguments center around his sentences handed down on April

14, 1997, November 19, 1999, and November 13, 2002. On each of those dates Defendant was

sentenced for multiple counts of varying types of financial fraud. Defendant argues that all counts

for which Defendant was sentenced on the same day should be “related” for purposes of § 4A1.2.

In support of this contention, Defendant points out that for each day of sentencing the crimes were

for the same or similar offenses, that they shared a “modus operandi,” that they happened in close

temporal and geographic proximity to each other, that in many instances they were investigated by




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the same police officer, and that they were sentenced by the same judge on the same day. (J.A. at

15.)

         This Court has rejected all of Defendant’s arguments in prior cases. Merely because a court

system takes a functional approach to sentencing a defendant convicted of multiple crimes, treating

all charges at the same sentencing hearing and even sentencing the defendant to concurrent

sentences, this Court will not automatically treat the crimes as “related” for purposes of § 4A1.2.

See United States v. Smith, 905 F.2d 1296, 1303 (9th Cir. 1990) (rejecting proposition that

concurrent sentences automatically indicated that the offenses were “related” for purposes of §

4A1.2). There must be a formal order of consolidation (thus qualifying under subpart (3) of

Application Note 3 on what constitutes related crimes), United States v. Coleman, 964 F.2d 564, 566

(6th Cir. 1992), or the crimes must be part of a “common plan or scheme” as Defendant alleges

here.1

         This Court has held that “neither close geographic or temporal proximity commands a

finding that the defendant jointly planned the crimes.” Irons, 196 F.3d at 640. Neither does the

sharing of a “modus operandi” makes the crimes related. United States v. Cowart, 90 F.3d 154, 159

(6th Cir. 1996). Hence, prior convictions are not “related” merely because they are part of a crime

spree. Irons, 196 F.3d at 640. Instead, Defendant must present evidence that the crimes were

“jointly planned” or that “the commission of one offense necessarily requires the commission of the




         1
        Defendant does not argue that the cases were formally consolidated for sentencing, nor
could he, because on each occasion of sentencing he was sentenced under multiple indictments and
court docket numbers. (J.A. at 116-128); see also Coleman, 964 F.2d at 566 (taking separate docket
numbers as an indication that the cases were not formally consolidated).

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                                            No. 05-1434

other.” Id. at 638. Defendant has presented no such evidence of joint planning to this Court. Nor

has Defendant presented evidence that the commission of one of the crimes necessarily involved the

commission of the other crimes for which he was sentenced on the same day. Indeed, Defendant

fails to address the crimes individually and instead has relied on his general argument that the joint

sentencing and similar nature of the offenses makes the crimes part of a common scheme or plan.

The district court therefore did not clearly err in refusing to find that Defendant had proven that each

sentencing date encompassed “related” offenses for purposes of § 4A1.2.

       2.      This Court Does Not Review a District Court’s Refusal to Grant a Discretionary
               Downward Departure Under § 5K1.1 in the Calculation of the Advisory Guidelines
               Sentence

       This Court has set forth the limited extent to which it will review a district court’s refusal

to grant a downward departure for substantial cooperation under the Sentencing Guidelines:

       [T]he decisions whether to depart and how much to depart are entirely committed to
       the district judge’s discretion. U.S.S.G. § 5K1.1; United States v. Gregory, 932 F.2d
       1167, 1169 (6th Cir. 1991). The exercise of appellate jurisdiction is proper only in
       the rare case in which the district court erroneously thought that it lacked the
       authority to grant a departure. Schray, 383 F.3d at 433-34; United States v. Smith,
       278 F.3d 605, 609 (6th Cir. 2002); United States v. Farrow, 198 F.3d 179, 199 (6th
       Cir. 1999); United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995).

United States v. Jones, 417 F.3d 547, 550-51 (6th Cir. 2005).

       Defendant in the instant case does not argue that the district court misunderstood its authority

to include a § 5K1.1 departure. Rather, Defendant disputes only the district court’s rationale for

allegedly not granting the departure.2     This Court does not review a district court’s conscious


       2
         Defendant may be additionally mistaken in his factual premise for this argument on appeal.
Defendant argues as if the district court refused to consider a § 5K1.1 departure. In the district
court’s judgment, the district court stated that it “granted the Government’s motion for a downward

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exercise of its discretion to include or not include a § 5K1.1 departure in its calculation of the

advisory Guidelines’ sentence. Id.

B.       The District Court Did Not Exhibit Improper Bias Toward Defendant

         1.      Plain Error Review Applies

         Defendant did not object to the district court’s alleged bias below. This Court reviews

allegations of a district court’s bias for plain error when the has defendant failed to challenge the

alleged bias below. See United States v. Johnson, No. 04-2371, 2006 U.S. App. LEXIS 11694, at

*24 (6th Cir. May 10, 2006). “To establish plain error, a defendant must show (1) that an error

occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error

affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the

fairness, integrity or public reputation of the judicial proceedings.” United States v. Abboud, 438

F.3d 554, 583 (6th Cir. 2006).

         2.      The Trial Court Did Not Exhibit Impermissible Bias or Prejudice

         We find that Defendant fails to establish the first element of plain error; the district court’s

actions and statements do not rise to the level of impermissible bias or prejudice.

         In Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court provided guidance as to

when a district court’s remarks or rulings amount to a level of bias that denies a defendant a fair

trial:

         Opinions formed by the judge on the basis of facts introduced or events occurring in
         the course of the current proceedings, or of prior proceedings, do not constitute a
         basis for a bias or partiality motion unless they display a deep-seated favoritism or



departure.” (J.A. at 155.)

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       antagonism that would make fair judgment impossible. Thus, judicial remarks
       during the course of a trial that are critical or disapproving of, or even hostile to,
       counsel, the parties, or their cases, ordinarily do not support a bias or partiality
       challenge. They may do so if they reveal on opinion that derives from an extra
       judicial source; and they will do so if they reveal such a high degree of favoritism or
       antagonism as to make fair judgment impossible . . . . Not establishing bias or
       partiality, however, are expressions of impatience, dissatisfaction, annoyance, and
       even anger, that are within the bounds of what imperfect men and women, even after
       having been confirmed as federal judges, sometimes display. A judge’s ordinary
       efforts at courtroom administration – even a stern and short-tempered judge’s
       ordinary efforts at courtroom administration – remain immune.

Id. at 555-56. Further, unfavorable judicial rulings almost never constitute judicial bias. Id. at 555.

       Defendant argues that the district court’s inclination to depart upward from the Guidelines

range, its refusal to consider Defendant’s prior offenses “related” for § 4A1.2 purposes, and select

comments from the district court during the sentencing hearing, “exhibit[] a judicial predisposition

that goes beyond what is normal and acceptable.” (Def. Br. 35.) In particular, Defendant now

objects to comments made by the district judge that Defendant’s identify theft crimes “ruined lives,”

that the victims “can’t get credit, they can’t buy anything,” and that Defendant’s crimes were just

as bad or even worse than physical robbery of the victims. (See J.A. at 99-104.) Defendant avers

that the district court misunderstood the nature of his crimes because the “victims” of his crimes

were not individuals, but the credit companies; the Presentence Investigation Report lists the

recipients of restitution as a series of credit card companies and banks.

       Because Defendant points to no extrajudicial source of the judge’s alleged bias, we presume

that Defendant is relying on that prong of the Liteky test which says that there exists impermissible

bias if a judge’s comments “reveal such a high degree of favoritism or antagonism as to make fair

judgment impossible.” Liteky, 510 U.S. at 555. We find that Defendant’s evidence of alleged bias



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fails to show such antagonism, and therefore Defendant has failed to show plain error. See, e.g.,

United States v. Hickman, 592 F.2d 931, 935 (6th Cir. 1979). In Hickman, this Court found plain

error where the district court interjected itself more than 250 times in a one-day trial, took it upon

itself to rehabilitate witness testimony after defense counsel had conducted cross-examination, and

did not wait for objections, but “would sua sponte interrupt a witness or counsel, with the words

‘objection sustained’ and then proceed to state why the witness’ testimony was in some way

objectionable.” Id. at 932-35. Further, the district court in Hickman cut off defense counsel in

closing argument and, in the jury’s presence, admonished that “I won’t let you tell them rotten law.”

Id. at 936.

        In the instant case, the district court’s correct ruling that Defendant had failed to establish

the relatedness of his prior offenses cannot be the basis of a bias finding. See Liteky, 540 U.S. at

555. Similarly, the district court’s exercise of its discretion in imposing a sentence greater than that

which the Sentencing Guidelines recommend cannot, standing alone, establish bias. Id. Defendant

is therefore left with the statements pertaining to victim impact and likening Defendant’s crime to

violent robbery in support of his bias argument. The district court did not misunderstand the nature

of Defendant’s crimes. Although the ultimate bearers of the financial loss in Defendant’s case were

the credit companies, the consumers whose identities Defendant usurped had to pursue affirmative

remedies through these same credit companies in order to establish that Defendant’s expenditures

were fraudulent. It is common knowledge in such cases that damage to an individual’s credit is not

atypical, and certainly affirmative effort is required on the part of the consumer in order to ensure

that there is no long term damage to the consumer’s credit worthiness. The district court’s



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characterization of Defendant’s victims, then, was not out of bounds, nor the type of impermissible

antagonism which would implicate the fundamental fairness of Defendant’s sentence.

        Finally, Defendant argues that the district court’s analogy of Defendant’s crimes to physical

robbery and personal violence necessarily implies impermissible bias, because Defendant’s crimes

were not “crimes of violence” as understood in the penal code. In this case, the district court’s

comments must be taken in context. During the sentencing hearing, defense counsel argued for a

downward departure, stating that “[h]e’s not murdering people. He’s not doing violent crime.” (J.A.

at 98.) The district court responded by asking, somewhat rhetorically: “It wasn’t doing violence to

his victims, these people whose identifies were stolen?” (J.A. at 99.) After continued argument by

defense counsel as to why Defendant was not as bad a criminal as a “bank robber,” the judge

responded: “No, it would have been better if he were a bank robber or better if he just stuck these

people up at their mailboxes and just taken their cash. What he did stays with them and with them

and with them.” (J.A. at 99-100.)

        Defendant invited the analogy to robbery, and the district court’s use of that analogy did not

show impermissible bias, but demonstrated the judge’s informed perception of the extent and nature

of Defendant’s crimes. Moreover, even were this Court to construe the district court’s statements

as exhibiting his own position on the subject, “judicial remarks . . . that are critical or disapproving

of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality

challenge.” Liteky, 540 U.S. at 555.

        In summary, Defendant has failed to show that the district court demonstrated impermissible

bias or hostility such that Defendant was denied a fair sentencing. Further, because Defendant failed



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to object to the district court’s alleged bias during the sentencing hearing, Defendant must meet the

plain error standard. Even were the Court to assume that the district court’s statements were

questionable, the proceedings below were certainly not the type that would “seriously affected the

fairness, integrity or public reputation of the judicial proceedings,” Abboud, 438 F.3d at 583, as

would be necessary to satisfy plain error review.

C.     The District Court Did Not Commit Plain Error in Sentencing Defendant

       1.      Plain Error Review Applies

       Defendant has failed to preserve this issue for review. Although Defendant objected below

to the district court’s calculation of the advisory Guidelines sentence, and argued generally for a

downward departure from the Guidelines before the district court handed down its sentence of 98

months incarceration, Defendant did not lodge a complaint with the district court about the sentence

as ultimately imposed.

       Because Defendant failed to object to the sentence when handed down by the district court,

this Court reviews Defendant’s sentence only for plain error. United States v.Willis, No. 05-5434,

2006 U.S. App. LEXIS 10099, at *9 (6th Cir. Apr. 20, 2006). “To establish plain error, a defendant

must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious

or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact

seriously affected the fairness, integrity or public reputation of the judicial proceedings.” Abboud,

438 F.3d at 583. The district court errs in sentencing a criminal defendant when the sentence is

unreasonable. Booker, 543 U.S. at 259.

       2.      No Plain Error Exists



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       Defendant argues that the district court’s decision to impose a sentence higher than that

which the Sentencing Guidelines recommend is unreasonable. The Guidelines recommended a

range of 63 to 78 months of incarceration for a criminal defendant with a Criminal History Category

of VI and a total adjusted offense level of 19. The district court’s ultimate sentence was 98 months

incarceration, 20 months higher than the upper limit of the Guidelines’ recommended range.

       The district court’s decision to impose a higher sentence was due, in large part, to the district

court’s assessment of Defendant’s history. Before sentencing in the instant case, Defendant had 24

prior criminal convictions, almost all in the area of monetary fraud. Defendant’s total criminal

history score was a 28, whereas only 13 points were necessary to place Defendant in the Category

VI offender for purposes of the Sentencing Guidelines, the highest category possible. Defendant

therefore had twice the criminal history points of a threshold Category VI offender. The Guidelines

themselves distinguish between sentences for defendants with varying criminal histories. A category

I offender in Defendant’s position, for example, would have had a recommended range of 30 to 37

months. See U.S. Sentencing Guidelines Manual § 5A (2004). Thirteen criminal history points

separate a Category I offender from a threshold Category VI offender. Id. Because Defendant has

twice as many criminal history points as a threshold Category VI offender, increasing his sentence

by 20 months is both consistent with past Guidelines practice and reasonable in the post-Booker

world, absent additional evidence that the sentence is somehow procedurally unreasonable.

       Defendant attempts a procedural unreasonableness argument by asserting to this Court that

the district court failed to consider Defendant’s individual circumstances in imposing sentence.

Although the district court did not specifically mention Defendant’s personal problems, the district



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court did reference Defendant’s sentencing memorandum, in which Defendant outlines his past

personal problems which might warrant leniency. Defense counsel did not present evidence of

Defendant’s personal history at the sentencing hearing, despite the district court’s invitation to

present or discuss any factors the defense felt might be pertinent to sentencing. Defendant also

objects to the district court’s apparent determination that Defendant’s chances for rehabilitation are

slim. With 24 past criminal convictions for the same types of crimes, the district court’s conclusion

that Defendant was a likely recidivist was eminently reasonable.

       Even were the district court’s consideration of the § 3553 factors questionable in the instant

case, Defendant has not been able to show that his sentence rises to the level of plain error. The

substance of the sentence is reasonable, given Defendant’s long history of similar crimes; moreover,

the sentence is well within the maximum incarceration penalties of 10 and 15 years for his two

crimes of conviction. Therefore, we cannot say that the sentencing hearing in this case either

affected Defendant’s substantial rights or has adverse implications for the integrity of the judicial

system. We therefore find that the district court did not commit plain error in sentencing Defendant.

                                                 III.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s sentence in this case.




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