     Case: 10-10117 Document: 00511307151 Page: 1 Date Filed: 11/30/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 30, 2010
                                     No. 10-10117
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ISAAC MCCRUMBY,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-60-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Isaac McCrumby pleaded guilty pursuant to a plea agreement to one count
of conspiracy to commit bank fraud.                The presentence report calculated
McCrumby’s Guidelines range to be 84 to 105 months of imprisonment. The
district court, pursuant to U.S.S.G. § 4A1.3(a)(1), upwardly departed to 160
months of imprisonment. McCrumby was also sentenced to a five-year term of
supervised release and ordered to pay restitution in the amount of $125,575.57.
McCrumby appeals his sentence, a right he did not waive in his agreement.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                   No. 10-10117

      McCrumby contends that the district court plainly erred in not reducing
his offense level under U.S.S.G. § 2X1.1(b)(2) for “partially completed offenses.”
McCrumby does not dispute the district court’s intended loss calculation,
($2,151,760.80) which was based on the 2,359 customer account numbers found
in his possession. He contends, however, that there was no evidence that he
made “‘substantial progress’” in using all of the 2,359 numbers to commit the
intended offense.
      As McCrumby concedes, because he did not raise the argument below,
review is for plain error only. See United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007). To demonstrate plain error, McCrumby must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this
court will correct the error only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.
      The record reflects that the acts to complete the intended offense of bank
fraud resulting in $2,151,760.80 had not been completed at the time McCrumby
was apprehended. See United States v. John, 597 F.3d 263, 284 (5th Cir. 2010);
United States v. Waskom, 179 F.3d 303, 308-09 (5th Cir. 1999). Accordingly, the
district court clearly erred in failing to apply the three-level reduction. See
John, 597 F.3d at 284. Nevertheless, McCrumby cannot show a reasonable
probability that he would have received a lesser sentence. See United States v.
Davis, 602 F.3d 643, 650 (5th Cir. 2010). Although the district court erroneously
calculated the Guidelines range, there is no evidence that the district court
relied on the erroneous range when it departed upward. Further, the record
indicates that the district court had ample independent basis for imposing the
sentence that it did--McCrumby’s extensive criminal history, short sentences,
and likelihood of recidivism. See id. at 649. Thus, McCrumby’s challenge fails
plain error review.



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                                  No. 10-10117

      McCrumby also argues that the district court procedurally erred in
applying § 4A1.3 to the facts of his case because his criminal history category VI
sufficiently addressed his prior criminal history. At sentencing, McCrumby
objected to only the extent of the departure and reasonableness of his sentence.
He did not make the procedural error argument he now raises on appeal.
Accordingly, his argument is reviewed for plain error. See United States v. Neal,
578 F.3d 270, 272 (5th Cir. 2009).
      McCrumby’s criminal record shows that he is a repeat offender. Further,
the district court’s stated reasons at sentencing for the departure--concern with
McCrumby’s recidivism--advances the objectives set forth in 18 U.S.C. § 3553(a).
See United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006);
§ 3553(a)(2). McCrumby has failed to show that the district court plainly erred
in applying the § 4A1.3(a)(1) departure to his sentence. See Puckett, 129 S. Ct.
at 1429. Furthermore, the district court did not abuse its discretion in departing
upward as its reasons for departing were based on the § 3553(a) factors and were
justified by the facts of the case. See Zuniga-Peralta, 442 F.3d at 347. Although
the departure in this case was significant, this court has affirmed similar
departures. See, e.g., United States v. Herrera-Garduno, 519 F.3d 526, 531-32
(5th Cir. 2008); Zuniga-Peralta, 442 F.3d at 347-38; United States v. Simkanin,
420 F.3d 397, 419 (5th Cir. 2005). Given McCrumby’s criminal history, his risk
of recidivism, and the need for deterrence and to promote respect for the law, he
has not shown that his sentence is substantively unreasonable.                See
Zuniga-Peralta, 442 F.3d at 347.
      McCrumby’s final argument is that the district court plainly erred in
failing to make the restitution order joint and severally liable with his
codefendant. In the instant case, McCrumby and the Government stipulated in
the plea agreement that McCrumby “shall be jointly and severable liable for
payment of all restitution.” This provision of the plea agreement was read at
McCrumby’s rearraignment. The plea agreement, which was accepted by the

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                                   No. 10-10117

district court, is binding. See United States v. Garcia, 606 F.3d 209, 215 (2010);
see also 18 U.S.C. § 3663(a)(3).
      Given that the mutual understanding of the parties was that McCrumby
would be jointly and severally liable with his codefendant for the restitution,
there was error that was plain and that affected McCrumby’s substantial rights
because he was sentenced to pay restitution in a manner different than that
agreed to in the plea agreement. See Puckett, 129 S. Ct. at 1429. Additionally,
“the error affected the fairness and integrity of the judicial proceedings.” See
Puckett, 129 S. Ct. at 1429; see also United States v. Adams, 363 F.3d 363,367-68
(5th Cir. 2004). Accordingly, the district court’s judgment is VACATED in part
and REMANDED for amendment of the written judgment to reflect that
McCrumby is jointly and severally liable with his codefendant for the restitution
amount. McCrumby’s sentence is otherwise AFFIRMED.
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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