                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 30 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
                                                         No. 02-3117
    v.                                            D.C. No. 01-CR-10073-MLB
                                                          (D. Kansas)
    JOHN M. MOEN,

                Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, Chief Judge, ANDERSON and BALDOCK, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Defendant John M. Moen pled guilty to one count of misuse of a social

security number in violation of 42 U.S.C. § 408(a)(7)(B). After the plea hearing,


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
defendant was released on bond pending sentencing. During that time, the district

court issued an arrest warrant based on defendant’s violation of several conditions

of release. Defendant absconded, but was subsequently apprehended and taken

into custody. At sentencing, the court upwardly departed from the recommended

sentencing guideline range, sentencing defendant to forty-two months of

imprisonment. Defendant now appeals his sentence, arguing that the degree of

upward departure was unreasonable.

      The district court upwardly departed from criminal history category VI,

offense level 10, which translates to a guideline range of twenty-four to thirty

months. The court found that an upward departure was warranted because (1) the

offenses giving rise to defendant’s criminal history category significantly under-

represented the seriousness of defendant’s criminal history; and (2) the similarity

of defendant’s past and present offenses, as well as defendant’s return to criminal

activity upon release from confinement, indicated a high likelihood of recidivism.

      To arrive at its sentence, the district court moved incrementally down the

sentencing table to the next highest offense level in category VI until it found a

guideline range appropriate to the case. The court reached offense level 14,

which translates to a guideline range of thirty-seven to forty-six months, and

determined that a sentence of forty-two months was appropriate. The court based




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its determination on the number of defendant’s prior convictions, as well as the

purposes of sentencing set forth in 18 U.S.C. § 3553(a)(1) and (2)(A) through (C).

      The district court’s departure from the sentencing guidelines is reviewed

under a unitary abuse of discretion standard. See United States v. Collins, 122

F.3d 1297, 1302 (10th Cir. 1997). To determine whether the district court abused

its discretion in departing from the guidelines, we must evaluate:

      (1) whether the factual circumstances supporting a departure are
      permissible departure factors; (2) whether the departure factors relied
      upon by the district court remove the defendant from the applicable
      Guideline heartland thus warranting a departure, (3) whether the
      record sufficiently supports the factual basis underlying the
      departure, and (4) whether the degree of departure is reasonable.

Id. at 1303.

      Defendant concedes that the district court used permissible departure

factors and that defendant’s criminal record creates the appropriate factual basis

underlying the departure factors and removes him from the applicable guideline

heartland. Therefore, the only factor at issue on appeal is whether the degree of

departure was reasonable. Defendant argues that the district court failed to

adequately explain its reasons for the degree of departure. Specifically, defendant

argues that the district court based its degree of upward departure solely on the

number of prior convictions in excess of the thirteen points required for

classification in criminal history category VI, which is impermissible according to

United States v. Walker, 284 F.3d 1169, 1173 (10th Cir. 2002).

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      In upwardly departing from criminal history category VI, the district court

shall “structure the departure by moving incrementally down the sentencing table

to the next highest offense level in Criminal History Category VI until it finds a

guideline range appropriate to the case.” U.S.S.G. § 4A1.3. The court moved

four levels down the sentencing table to offense level 14, which translates to a

guideline range of thirty-seven to forty-six months, and determined that a

sentence of forty-two months was appropriate. The court based its determination

on the number of defendant’s prior convictions, as well as the purposes of

sentencing set forth in 18 U.S.C. § 3553(a)(1) and (2)(A) through (C). The

district court noted that defendant’s 17 criminal history points are, coincidentally,

four more than required for category VII classification. However, the court did

not base its degree of upward departure solely on the number of prior convictions

in excess of the thirteen points required for classification in criminal history

category VI, as defendant argues.

      We conclude that the district court’s degree of departure from the

sentencing guidelines was reasonable. The judgment of the United States District

Court for the District of Kansas is AFFIRMED.

                                                     Entered for the Court


                                                     Bobby R. Baldock
                                                     Circuit Judge


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