       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Brown                       No. 02-6407
    ELECTRONIC CITATION: 2004 FED App. 0175P (6th Cir.)
                File Name: 04a0175p.06                    OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR
                                                          THE WESTERN DISTRICT OF TENNESSEE, Memphis,
                                                          Tennessee, for Appellant. John T. Tibbetts, ASSISTANT
UNITED STATES COURT OF APPEALS                            UNITED STATES ATTORNEY, Memphis, Tennessee, for
                                                          Appellee.
              FOR THE SIXTH CIRCUIT
                _________________                                             _________________

 UNITED STATES OF AMERICA , X                                                     OPINION
             Plaintiff-Appellee, -                                            _________________
                                   -
                                   -  No. 02-6407           DAVID A. NELSON, Circuit Judge. Under the federal
            v.                     -                      sentencing guidelines, a criminal defendant may be given a
                                    >                     prison sentence exceeding the range prescribed in the
                                   ,                      guidelines manual’s sentencing table if the criminal history
 CHALMERS BROWN ,                  -
          Defendant-Appellant. -                          category to which the defendant has been assigned does not
                                                          adequately reflect his past conduct or the likelihood that he
                                  N                       will commit additional crimes.         See the Sentencing
       Appeal from the United States District Court       Commission’s Policy Statement at U.S.S.G. § 4A1.3.
    for the Western District of Tennessee at Memphis.
   No. 02-20059—Samuel H. Mays, Jr., District Judge.         The appropriate extent of an upward departure can often be
                                                          measured by reference to the sentence range for a person in
               Argued: February 5, 2004                   the next criminal history category above the defendant’s. But
                                                          where a defendant’s criminal record has earned him so many
           Decided and Filed: June 10, 2004               criminal history points that he is already in the highest of the
                                                          six criminal history categories created by the guidelines, the
   Before: NELSON, GILMAN, and ROGERS, Circuit            Policy Statement directs the sentencing court to “structure”
                     Judges.                              the departure by moving to successively higher offense levels
                                                          (the defendant’s offense level being the other variable in the
                  _________________                       sentencing table) until the court comes to “a guideline range
                                                          appropriate to the case.” Id.
                       COUNSEL
                                                            The defendant in the case at bar, who had at least 13 prior
ARGUED: Stephen B. Shankman, OFFICE OF THE                felony convictions, pleaded guilty to a charge of knowingly
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                   possessing a certain Norberto Arizmendi shotgun in violation
DISTRICT OF TENNESSEE, Memphis, Tennessee, for            of 18 U.S.C. § 922(g), the statute that criminalizes possession
Appellant. David N. Pritchard, ASSISTANT UNITED           of a firearm by a convicted felon. The defendant’s lengthy
STATES ATTORNEY, Memphis, Tennessee, for Appellee.        criminal record made him a prime candidate for an upward
ON BRIEF: Stephen B. Shankman, April R. Goode,            departure from the sentence range (168-210 months) specified

                            1
No. 02-6407                        United States v. Brown     3    4    United States v. Brown                      No. 02-6407

in the table. Employing a methodology endorsed in United           her money was. The tall, thin man likewise demanded
States v. Williams, No. 99-6030, 2000 WL 1872059 (6th Cir.         money. In the course of the ensuing tumult, Ms. Thompson’s
Dec. 15, 2000), cert. denied, 532 U.S. 988 (2001)                  statement says, the oldest child was repeatedly hit in the head
(unpublished), the district court sentenced the defendant to       with the shotgun and the weapon was fired once. The blast
imprisonment for a term of 360 months.                             hit Ms. Thompson’s dog in the foot, and some of the pellets
                                                                   struck Ms. Thompson in the face and arm.
   We cannot tell whether the sentence range (360 months to
life) produced by the Williams methodology was one which              As the police were arriving in response to the 911 call, the
the district court, in the exercise of its independent judgment,   robbers escaped with a Playstation and some money Mr.
considered appropriate to the particular circumstances of this     Williams had in his pants. Two days later a crime stoppers
particular case. We shall therefore vacate the challenged          tip implicated Chalmers Brown (the defendant herein) and
judgment and remand the case for resentencing.                     two other suspects. Shown a photo-array, according to the
                                                                   presentence report, Ms. Thompson “positively identified
                               I                                   Chalmers Brown as the person who shot her, assaulted her
                                                                   family and shot her dog.” (The presentence report does not
  At 10:15 on the morning of November 25, 2001, according          comment on the anomalous circumstance that Ms.
to a subsequently prepared presentence investigation report,       Thompson’s statement to the police described the masked
three robbers broke into Tara Thompson’s house on Laclede          man with the shotgun as being much taller and thinner than
Avenue in Memphis, Tennessee. Inside the house were Ms.            Mr. Brown; one wonders if in fact Ms. Thompson did not
Thompson, her boyfriend Tallen Williams, and three children        simply identify the bare-faced Mr. Brown as a member of the
ranging in age from three to 14.                                   trio, without claiming that he personally wielded the shotgun.)
  One of the intruders — described by Ms. Thompson as a              On the day after Ms. Thompson identified Mr. Brown’s
bearded man about 6 feet tall, weighing about 160 pounds and       picture, a police officer spotted Brown getting into his
wearing a homemade ski mask — was said to have been                Cadillac automobile. Mr. Brown was detained, and a search
armed with a shotgun of the “pistol pump” variety. A second        of the Cadillac turned up a black ski mask behind the driver’s
intruder — a “short, chubby” man, not wearing a mask —             seat and a loaded shotgun in the trunk. Mr. Brown admitted
had a small handgun. (Chalmers Brown, the defendant in the         ownership of the shotgun.
case at bar, stands 5'6" in height and weighs 187 pounds,
according to the presentence report; he would thus seem to           Charged with both state and federal crimes, Mr. Brown
bear a closer resemblance to the short, chubby man with the        found himself moved along the federal track first. A
handgun than to the tall, thin man with the shotgun.) The          superseding indictment handed up by a federal grand jury in
third intruder, who wore a black ski mask, was apparently          April of 2002 charged him with three counts of violating the
unarmed.                                                           felon-in-possession statute, 18 U.S.C. § 922(g). Mr. Brown
                                                                   pleaded guilty to the first count of the superseding indictment
  Ms. Thompson called 911 while the intruders were kicking         pursuant to a Rule 11 plea agreement. (It was the first count,
in her front door. Once inside, according to a statement Ms.       as we have indicated, that charged him with illegal possession
Thompson was to give the police, the short, chubby man             of a Norberto Arizmendi shotgun.) The other two counts
pointed his handgun at her and her children and asked where        were dismissed by the government.
No. 02-6407                     United States v. Brown      5    6     United States v. Brown                       No. 02-6407

  The probation officer who prepared Mr. Brown’s                 have said, was one approved by the Sixth Circuit’s
presentence investigation report originally assumed that the     unpublished decision in the Williams case, available
Norberto Arizmendi shotgun was the same weapon with              electronically at 2000 WL 1872059.
which Ms. Thompson and her son and dog had been
assaulted. Based on this assumption, and using the 2001            The sentencing court in Williams used a criminal history
edition of the guidelines manual, the probation officer          scale of its own creation, with phantom categories designed
assigned Mr. Brown an offense level of 31. In a subsequent       to trigger incremental increases in the defendant’s offense
addendum to the presentence report, however, the officer         level. See Williams, 2000 WL 1872059, at **2. The
noted that whereas Ms. Thompson had described the shotgun        Williams methodology provides for no increase in the offense
used in the robbery as a “pistol pump” weapon, the Norberto      level of a defendant whose criminal history score is 15 or less.
Arizmendi referred to in Count One of the indictment did not     A criminal history score of 16 to 18 points produces a one-
have a pistol pump feature. The addendum recommended             level increase in the offense level. A criminal history score of
that Brown’s total offense level be set at 30, rather than 31,   19 to 21 leads to a two-level increase, and higher brackets of
unless the United States could prove that the weapon             criminal history points lead to further increases in the offense
recovered at the time of the arrest was the same one used        level. A criminal history score of 48 or more yields an
during the home invasion.                                        increase of 10 in the offense level.

   The government could not prove that the weapons were one        Accepting the Williams methodology as “persuasive and
and the same, and the district court therefore accepted the      logical,” the court below treated Mr. Brown as having an
revised computation of Brown’s offense level. Under the          offense level of 40 rather than 30. As can be seen from a
manual’s sentencing table — an abbreviated version of which      glance at the sentencing table set forth in the appendix, infra,
is included as an appendix to this opinion — a defendant who     the range prescribed for a defendant in Criminal History
has earned a place in Criminal History Category VI and who       Category VI who has an offense level of 40 is imprisonment
has an offense level of 30 is assigned a guideline sentence      for a term in the range of 360 months to life.
range of 168-210 months.
                                                                   The government sought to have the 39-year-old Mr. Brown
  Prior to issuance of the addendum to the presentence report,   sentenced to life imprisonment. The district court, however,
the government had moved for an upward departure from the        opted to impose a sentence — 30 years — at the bottom of
range (188-235 months) specified in the original report. The     the guideline range determined under Williams. Mr. Brown
basis for the motion was that while a minimum of only 13         has perfected a timely appeal from this 30-year sentence.
criminal history points suffices to place a defendant in
Criminal History Category VI, Mr. Brown had amassed more                                        II
than four times that number of points — 53, to be precise.
Category VI thus failed adequately to reflect Mr. Brown’s           In general, a departure is permissible if the sentencing court
past criminal behavior, the government argued.                   finds “that there exists an aggravating or mitigating
                                                                 circumstance of a kind, or to a degree, not adequately taken
  The district court agreed. The court also accepted the         into consideration” by the guidelines. 18 U.S.C. § 3553(b).
methodology proposed by the government for determining the       Thus U.S.S.G. § 4A1.3 stated (before adoption of a change in
extent of the upward departure. That methodology, as we          wording not relevant here) that “[i]f reliable information
No. 02-6407                     United States v. Brown         7   8        United States v. Brown                            No. 02-6407

indicates that the criminal history category does not              move horizontally across the guideline grid because there are
adequately reflect the seriousness of the defendant’s past         no criminal history categories greater than VI,” as we put it in
criminal conduct or the likelihood that the defendant will         United States v. Thomas, 24 F.3d 829, 834 (6th Cir.), cert.
commit other crimes, the court may consider imposing a             denied, 513 U.S. 976 (1994), “[the court] should move
sentence departing from the otherwise applicable guideline         vertically down the offense level axis until it locates a range
range.”                                                            which it deems appropriate to the facts of the case.”
  Mr. Brown does not deny that an upward departure was               Our earlier decision in United States v. Carr, 5 F.3d 986,
warranted in light of his remarkable criminal history. He          994 (6th Cir. 1993), had suggested that § 4A1.3 requires a
contends, rather, that it was inconsistent with U.S.S.G.           district court to consider the sentencing ranges that would
§ 4A1.3 for the district court to determine the extent of the      result from an increase of one offense level, two offense
departure by employing jerry-built criminal history categories     levels, and so on, increasing the defendant’s offense level by
not tailored to his individual case.                               more than one only if the court “demonstrate[s] why it found
                                                                   the sentence imposed by each intervening level to be too
  Although § 4A1.3 is designated a policy statement, rather        lenient.” Carr, 5 F.3d at 994.1 See also United States v.
than a guideline, it is binding on the district courts. See        Gray, 16 F.3d 681, 683 (6th Cir. 1994). But Thomas held that
Stinson v. United States, 508 U.S. 36, 42 (1993). Failure to       Carr’s interpretation of § 4A1.3 did not “require[] a
follow § 4A1.3 constitutes an incorrect application of the         sentencing court to explain formalistically, gridblock-by-
sentencing guidelines, see id., and is thus an abuse of            gridblock, why each intervening range is inappropriate.”
discretion. See United States v. Valentine, 100 F.3d 1209,         Thomas, 24 F.3d at 835.
1210 (6th Cir. 1996).
                                                                       “We read [§ 4A1.3] to require a court to continue moving
  The 2001 edition of the Sentencing Guidelines Manual                 down offense-level ranges only until it finds a range
contained a passage (subsequently the subject of minor                 which would provide an appropriate sentence for the
changes in wording) that read as follows:                              defendant, but no further. We do not read this to require
                                                                       the court to move only one level, or to explain its
  “Where the court determines that the extent and nature of            rejection of each and every intervening level. The
  the defendant’s criminal history, taken together, are                language indicates quite clearly that the court should
  sufficient to warrant an upward departure from Criminal              continue to consider ranges ‘until it finds’ an appropriate
  History Category VI, the court should structure the                  sentence for the defendant before it, but nothing in
  departure by moving incrementally down the sentencing                § 4A1.3 calls for a more detailed, gridblock-by-gridblock
  table to the next higher offense level in Criminal History           approach . . . .” Id. at 834.
  Category VI until it finds a guideline range appropriate
  to the case.”
                                                                        1
                                                                         Carr’s statements as to ho w a sentencing court is to effect a multi-
(The reader who does not have a clear mental image of the          level increase in a defendant’s offense level may be regarded as dicta,
configuration of the matrix to which the foregoing passage         given that we were not reviewing such an increase in that case. The
alludes may wish to examine the sentencing table at this           departure issue in Carr was whether the distr ict court had erred by
juncture. See Appendix, infra.) “[W]hen the court cannot           hypothesizing a criminal history category greater than VI rather than
                                                                   increasing the defendant’s offense level. See Carr, 5 F.3d at 994.
No. 02-6407                      United States v. Brown        9    10   United States v. Brown                    No. 02-6407

   “The approach required of the sentencing court when              accepted the resulting sentence range without comment. As
departing beyond Criminal History Category VI,” Thomas              far as the record indicates, the court gave no independent
holds, “is to consider carefully all of the facts and               thought to whether that range was appropriate under the
circumstances surrounding the case which affect the                 individual circumstances of Mr. Brown’s case.
departure, and from them determine an appropriate sentence
for the particular defendant.” Id. at 835. If a court selects an      It is true that, in rejecting the government’s
appropriate sentence range in this manner, and if the court         recommendation of a sentence of life in prison, the district
increases the defendant’s offense level no more than                court said that “360 months is adequate punishment for these
necessary to arrive at that range on the sentencing table,          offenses.” But we do not interpret this comment as a
§ 4A1.3 is satisfied.                                               determination that 360 months to life is an appropriate
                                                                    sentence range. The question is whether a departure to a
   This is not to say that § 4A1.3 prohibits a district court       range starting below 360 months would be adequate and
from using the Williams construct (or some similar expedient)       appropriate for Mr. Brown’s offense. That is a question the
as a reference point when determining the extent of an upward       court does not seem to have addressed.
departure. But the use of such a construct – particularly one
developed by a different judge in a different case – cannot           The sentence is VACATED, and the case is REMANDED
replace the exercise of the court’s independent judgment. If        for further proceedings not inconsistent with this opinion.
a district court chooses to follow the Williams approach in the
beginning, the resultant sentence range is not to be treated as
definitive; at the end of the day the court must decide, in light
of all the facts and circumstances of the particular case before
it, whether the range in question is “appropriate to the case.”
(As Thomas makes clear, the process of “moving
incrementally down the sentencing table to the next higher
offense level,” see U.S.S.G. § 4A1.3, is simply a means to an
end; the whole point of the exercise is to “find[] a guideline
range appropriate to the case.” Id.) If, having elected to use
the Williams methodology as a navigational aid, the court
finds that the range to which that methodology points is not
“a guideline range appropriate to the case,” the court must
select a different range.
  In the case at bar, it seems to us, the record does not reflect
an independent determination by the district court that the
Williams range is appropriate for this particular case in light
of the particularized facts of the case. The court knew, to be
sure, that it was not required to use the Williams
methodology; the court twice referred to Williams as an
“example.” But after choosing to apply Williams, the court
No. 02-6407                              United States v. Brown             11

                              APPENDIX
                        SENTENCING TABLE
                       (in months of imprisonment)
           Criminal History Category (Criminal History Points)

 OFFENSE      I          II         III         IV          V         VI
  LEVEL     (0-1)     (2 or 3)   (4, 5, 6)   (7, 8, 9)   (10, 11,   (13 OR
                                                           12)      MORE )



    1        0-6        0-6        0-6         0-6         0-6        0-6
    2        0-6        0-6        0-6         0-6         0-6        1-7
    3        0-6        0-6        0-6         0-6         2-8        3-9



   \                                \                                 \
  ***                             ***                                ***
   [                                [                                 [

   30      97-121     108-135    121-151     135-168     151-188    168-210
   31      108-135    121-151    135-168     151-188     168-210    188-235
   32      121-151    135-168    151-188     168-210     188-235    210-262
   33      135-168    151-188    168-210     188-235     210-262    235-293
   34      151-188    168-210    188-235     210-262     235-293    262-327
   35      168-210    188-235    210-262     235-293     262-327    292-365
   36      188-235    210-262    235-293     262-327     292-365    324-405
   37      210-262    235-293    262-327     292-365     324-405    360-life
   38      235-293    262-327    292-365     324-405     360-life   360-life
   39      262-327    292-365    324-405     360-life    360-life   360-life
   40      292-365    324-405    360-life    360-life    360-life   360-life
   41      324-405    360-life   360-life    360-life    360-life   360-life
   42      360-life   360-life   360-life    360-life    360-life   360-life
   43        life       life       life        life        life       life
