                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS                January 11, 2008
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                     No. 05-3213
                                                          (D. Kan.)
 JOHN DOE,                                      (D.C. No. 03-CR-10056-MLB)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY and O’BRIEN, Circuit Judges.


      Appellant John Doe 1 pled guilty to the unlawful use of a communication

device to facilitate a felony drug crime and possession of a firearm in furtherance

of a drug trafficking crime in violation of 21 U.S.C. § 843(b) and 18 U.S.C. §

924(c), respectively. The district court sentenced him to 236 months

imprisonment. We reversed and remanded for resentencing. United States v.


      *
       This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      1
         We previously granted Doe’s unopposed motion to conceal his identity.
See United States v. Doe, 398 F.3d 1254, 1255 n.1 (10th Cir. 2005). We continue
that practice here.
Doe, 398 F.3d 1254, 1256 (10th Cir. 2005). On remand, the district court again

sentenced Doe to 236 months imprisonment, applying United States v. Booker,

543 U.S. 220 (2005). Doe appeals from his sentence claiming it is unreasonable.

We exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and

AFFIRM.

                               I. BACKGROUND

      On November 20, 2002, Doe was indicted in another case (02-CR-10174)

charging eight offenses “including felon in possession of a firearm, knowingly

carrying a firearm during and in relation to a drug trafficking crime, possession of

marijuana, felon in possession of ammunition, possession of both cocaine and

crack cocaine, and possession of both cocaine and crack cocaine with intent to

distribute.” Doe, 398 F.3d at 1256. In that case, a superseding indictment added

two counts — possession of cocaine base with intent to distribute and possession

of counterfeit money — for a total of ten counts. Id. On February 20, 2003, the

superseding indictment was dismissed without prejudice to allow Doe to work as

a confidential informant. Because Doe did not comply with the terms of his

agreement with the government, this case (03-CR-10056) was commenced on

March 14, 2003, with the filing of a criminal complaint charging possession with

intent to distribute crack cocaine and possession of counterfeit money. On April

4 and 18, 2003, an information and superseding information were filed charging

Doe with unlawful use of a communication device to facilitate a felony drug

                                        -2-
crime (Count 1) and possession of a firearm in furtherance of a drug trafficking

crime (Count 2). On April 21, 2003, Doe pled guilty to both counts.

      At the time of Doe’s plea, the district court “was not made aware, either by

language in the plea agreement itself [] or through the statements of counsel at the

time of the [change of] plea [hearing]” that the government had agreed to dismiss

the ten count superseding indictment and recommend a nine year sentence in

exchange for Doe’s assistance. (R. Vol. II, Doc. 50 at 5-6). 2


      2
         Indeed, Paragraph 13 of the plea agreement, entitled “No Other
Agreements,” provided: “The defendant further understands that this plea
agreement supersedes any and all other agreements or negotiations between the
parties, and that this agreement embodies each and every term of the agreement
between the parties.” (R. Vol. I, Doc. 18 at 6 (emphasis added).)

      The following colloquy occurred at the change of plea hearing:

      THE COURT: All right. Paragraph [3 of the plea agreement] -
      there isn’t any relevant conduct here, is there? It talks about
      dismissed counts. There’s no dismissed counts of any indictment
      that I see in the file.

      [ASSISTANT UNITED STATES ATTORNEY]: Your Honor, there
      was another indictment filed against [John Doe] which was entirely
      dismissed and then this new case was filed. I don’t know how
      probation might look at it; but we wanted to make clear that the old
      indictment that was dismissed, we’re talking about that as well [in
      paragraph 3.]

(Id. at 7-8; Vol. III at 8.) Paragraph 3 of the plea agreement, entitled “Relevant
Conduct,” stated: “The defendant agrees that the conduct charged in any dismissed
counts of the indictment is to be considered as well as all other uncharged related
criminal activity as relevant conduct for purposes of calculating the offense level for
Counts 1 and 2, in accordance with the United States Sentencing Guidelines
(U.S.S.G.) § 1B1.3.” (R. Vol. I, Doc. 18 at 2.)

                                         -3-
A. Initial Sentencing

      A presentence investigation report (PSR) was prepared. 3 The PSR

calculated Doe’s criminal history points as thirty, resulting in a criminal history

category of VI. It noted the statutory maximum sentence for Count 1 was four

years (forty-eight months). See 21 U.S.C. § 843(d)(1). The PSR also noted

Count 2 carried a mandatory minimum consecutive sentence of five years (sixty

months) imprisonment. See 18 U.S.C. § 924(c). It further discussed the impact

of the plea agreement, noting if Doe had been charged with possession of cocaine

with intent to distribute (one of the charges in the original ten count indictment),

his guidelines range would have been determined pursuant to the “career

offender” provisions. See USSG §4B1.1. Applying §4B1.1 and granting him a

three-level downward adjustment for acceptance of responsibility, USSG §3E1.1,

his offense level would have been 31. With a criminal history category of VI, his

guidelines range would have been 188 to 235 months imprisonment, not including

the five year mandatory minimum consecutive sentence for his § 924(c)

conviction. However, the recommended sentence remained 108 months. Doe

made no objections to the PSR.

      On July 16, 2003, pursuant to Rule 32(h) of the Federal Rules of Criminal

Procedure, the district court notified the parties by letter it intended to depart

      3
        Doe was sentenced under the 2002 edition of the United States
Sentencing Guidelines. All citations to the guidelines herein refer to that edition
unless otherwise indicated.

                                          -4-
upward from the recommended range of 108 months. The court premised its

upward departure on Doe’s extensive criminal history as well as “his agreement

regarding consideration of relevant conduct in paragraph 3 of the plea

agreement.” (R. Vol. I, Doc. 24 at 1.) The court conducted an extensive analysis

of the appropriateness of the upward departure under United States v. Bartsma,

198 F.3d 1191, 1195 (10th Cir. 1999), overruled in part by United States v.

Atencio, 476 F.3d 1099, 1105 n.6 (10th Cir. 2007). Essentially, it treated Doe as

a career offender and fixed the modified sentencing range based on the dismissed

counts of possession of crack cocaine with intent to distribute, resulting in a

modified range of 188 to 235 months.

      Neither party objected to the methodology used by the district court to

calculate the upward departure, but both parties requested that the district court

not depart upward due to Doe’s cooperation with the government. Doe, 398 F.3d

at 1256. Nevertheless, “[t]he district court ultimately departed upward to a

sentence of 188 months on [Count 2] to be served consecutive to the forty-eight-

month sentence for Count 1, for a total sentence of 236 months.” Id. at 1256-57.

In doing so, it did not consider Doe’s assistance to the government because the

government had not filed a USSG §5K1.1 motion for “substantial assistance.”

B. First Appeal

      Doe appealed from the sentence. In that appeal, the government argued the

district court properly considered Doe’s assistance and appropriately determined

                                          -5-
an upward departure advanced the objectives of 18 U.S.C. § 3553(a)(2). Id. at

1257. We reversed, vacated the sentence and remanded for re-sentencing. Id. at

1261. Relying on precedent from other circuits and 18 U.S.C. § 3661, which

prohibits limitations on the information the district court is allowed to consider

when “imposing an appropriate sentence,” we held the district court should have

considered Doe’s cooperation with the government in its sentencing decision,

even if it did not rise to the level of “substantial assistance” sufficient to warrant

a §5K1.1 motion. Id. at 1259-61.

C. Resentencing

      On remand, the government and Doe each filed memoranda asking the

district court to sentence Doe to 108 months imprisonment. The district court

conducted a resentencing hearing at which Special Agent John Durastanti of the

Bureau of Alcohol, Tobacco, Firearms and Explosives testified about Doe’s

assistance as a confidential informant. Specifically, he testified Doe had provided

him with information about thirty-four individuals, though none of them were

prosecuted as a result of his information. Agent Durastanti also testified he had

concerns about Doe’s self-control because 1) he had failed to contact Agent

Durastanti as instructed when he was released from custody, 2) he had previously

fought with officers, 3) he was involved in three crimes for which he could

potentially be sentenced in the 30 to 40 year range, 4) he continued to use drugs,

and 5) he was a flight risk. At best, according to Durastanti, Doe was able to

                                           -6-
corroborate information provided by other sources. Doe conceded his information

did not rise to the level of substantial assistance. 4

       On May 19, 2005, the district court issued its memorandum decision on

resentencing. In that memorandum, it recounted the history of the case and the

parties’ failure to inform it at the change of plea hearing of the government’s

agreement to dismiss the pending charges in exchange for Doe’s cooperation. It

also highlighted “the agreement to dismiss the [ten count] superseding indictment

in favor of much less serious charges due to defendant’s assistance was not made

known to the probation officer and was not mentioned in the presentence

investigation report.” (R. Vol. II, Doc. 50 at 8.)

       The district court conducted an extensive review of the value of Doe’s

cooperation, which we had instructed it to do. It held:

       [I]t is readily apparent from SA Durastanti’s testimony that the
       information provided by defendant was largely cumulative of other
       information known to authorities and, perhaps most important, was
       not very useful because of defendant’s lack of reliability. None of
       the persons identified by defendant were ever prosecuted using
       defendant’s information.

(Id. at 10.) The court considered §5K1.1 in detail and contrasted Doe’s assistance

with the factors set forth therein. It pointed out: “Defendant’s assistance does not

diminish the seriousness of the offenses charged in the superseding indictment


       4
         Given Doe’s admission, his argument on appeal that the district court
inadequately credited his “massive cooperation with the government,” strains
credulity. (Appellant’s Opening Br. at 12 (emphasis added).)

                                            -7-
[case 02-CR-10174] or in the subsequent superseding information [this case].”

(Id. at 13.) The court noted: “There is no evidence that defendant’s assistance,

coming as it did while defendant either was in custody or on pretrial release,

reflects respect for the law or the orders of this court.” (Id.) It ultimately

characterized Doe’s cooperation as “insubstantial assistance.” (Id. at 18

(quotation omitted).)

      The district court considered the factors laid out in § 3553(a)(2) to

determine the appropriateness of an upward departure. In doing so, it largely

borrowed from its earlier sentencing order. It reasoned:

      Based upon defendant’s virtually uninterrupted history of committing
      crimes soon after coming into contact with the judicial system and/or
      release from custody, I find that there is a high likelihood that
      defendant will continue to commit crimes after release from
      confinement in this case. In addition, the present offense, as well as
      some of defendant’s previous offenses which involve firearms,
      provide a further justification for a departure designed to protect the
      public. 18 U.S.C. § 3553(a)(2)(C). Defendant’s extensive history of
      criminal activity, coupled by its repeated nature and its escalation in
      severity . . . punctuated by repeated periods of incarceration,
      demonstrate that defendant does not respect the law and that his prior
      involvement with the criminal justice system has not been sufficient
      to deter his criminal conduct.

(Id. at 12 (quotations omitted).) The court also observed:

      18 U.S.C. § 3553(a) sets out the factors which must be considered in
      imposing a sentence. The accepted way for a prosecutor to reward a
      defendant’s cooperation or assistance is through a section 5K.1.1
      motion . . . . Defendant may have helped the government but when
      defendant’s conduct and background are considered in light of the
      statutory factors, it is readily apparent that the 108-month sentence
      engineered by government counsel’s charging decision is not, to use

                                          -8-
      the statute’s term, “sufficient.” It is undisputed that defendant is a
      career offender, whether that term is used in its common meaning or
      according to [the] guideline definition. He is a serial burglar with a
      long-term drug addiction who carries firearms. The offenses to
      which defendant pleaded guilty are serious enough, but they pale in
      comparison to the charges which were dismissed. The validity of
      those charges has not been disputed. Defendant’s long and almost
      uninterrupted criminal history demonstrates a complete lack of
      respect for the law and requires just punishment, not lenient
      treatment. Defendant’s revolving-door encounters with the state
      criminal justice system show that he has not been deterred by his past
      experiences and that a longer period of incarceration is necessary to
      deter defendant from criminal conduct and, perhaps most important,
      to protect the public from his further crimes. Finally, to the extent
      defendant is willing to avail himself of the opportunity, a long period
      of incarceration and correctional treatment may cure defendant of his
      drug addiction.

(Id. at 12-13 (quotations omitted).)

      The district court then addressed the appropriate degree of departure.

Based on its “unobjected-to methodology” the district court fixed an “advisory

guideline range” of 188 to 235 months on Count 2, running consecutive to the

statutorily-capped forty-eight month sentence on Count 1. (Id. at 16.) In

determining this range, it relied upon Doe’s “long, serious and basically

continuous” criminal history since he was a juvenile. (Id.) It described Doe as

having “never led a crime-free lifestyle,” nor having “ever held a regular job.”

(Id.) The court found it unsurprising that Doe “was able to ‘assist’ authorities

with information regarding criminals and criminal activity. He knows nothing

else.” (Id. at 16-17.)

      All in all, the district court found this case “had, and still has, upward

                                          -9-
departure written all over it.” (Id. at 17.) The court expressed puzzlement at

“how counsel could have arrived at their agreement to dismiss the superseding

indictment, much less to be so naive to believe that once the court was finally

made aware of the facts, it would agree that a nine year sentence would be

adequate.” (Id. at 17.) The court concluded:

      There is something else which sets this case apart. Many of the
      crimes committed by defendant were not “victimless” crimes but
      crimes of violence. Defendant is the type of person who should be in
      prison and for whom prisons are made. He has consistently
      demonstrated his inability to live a productive, law-abiding lifestyle.
      Criminals are his associates. In retrospect, this court should not have
      given defendant a low end of the guidelines sentence and even now
      has been sorely tempted to raise the sentence because no matter how
      long defendant is incarcerated, he undoubtedly will resume his life of
      crime upon release, his promises to the contrary notwithstanding.

(Id. at 18-19.) The court reimposed the cumulative 236 month sentence of

imprisonment. On June 6, 2005, the amended judgment was entered. On May 27,

2005, Doe filed a timely notice of appeal. On appeal, Doe contends the district

court erred by departing upward from the guidelines. He also challenges the

reasonableness of the ultimate sentence imposed.

                                 II. DISCUSSION

      Since Booker, this Court has reviewed sentences for reasonableness.

United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). We first determine

whether the district court correctly calculated the guidelines range, including any




                                        -10-
departure, 5 reviewing the court’s legal conclusions de novo and its factual

findings for clear error. Id. at 1054. We then determine whether the ultimate

sentence imposed is reasonable in light of the factors set forth in 18 U.S.C.

§ 3553(a). 6 Id. at 1055. “Regardless of whether the sentence imposed is inside or

outside the Guidelines range, [we] review the sentence under an abuse-of-

discretion standard.” Gall v. United States, 128 S. Ct. 586, 597 (2007).

      Doe contends the district court erred in departing upward based upon his

criminal history. 7 We evaluate departures by examining: “(1) whether the factual


      5
        A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101 n.1
(10th Cir. 2007). A variance occurs “[w]hen a court enhances or detracts from
the recommended range through application of § 3553(a) factors.” Id .
      6
         These factors include “the seriousness of the offense, the need for just
punishment, deterrence, protection of the public, correctional treatment, the
sentencing pattern of the Guidelines, the policy statements contained in the
Guidelines, and the need to avoid unwarranted sentencing disparities.” United
States v. Collins, 122 F.3d 1297, 1308-09 (10th Cir. 1997) (quotation omitted).
      7
         Doe also contends the district court erred by weighing his criminal arrest
history against the value of his assistance to the government. In our prior
decision, we held the court erred in refusing to consider Doe’s assistance to the
government in deciding to depart upward and setting the degree of departure.
Doe, 398 F.3d at 1257 n.5, 1259-60. We reasoned 18 U.S.C. § 3661 required
consideration of a defendant’s cooperation even if such cooperation did not rise to
the level of substantial assistance under USSG §5K1.1. Id. at 1259. The district
court determined our citation to § 3661 required it to weigh Doe’s assistance
against his previous arrests, which was permitted under § 3577, the predecessor to
§ 3661. See Smith v. United States, 551 F.2d 1193, 1195-96 (10th Cir. 1977).
Although the court expressed uncertainty as to how to incorporate § 3661, it
concluded it saw “no reason to give much, if any, consideration to defendant’s
assistance as a mitigating factor to [his] history of arrests.” (R. Vol. II, Doc. 50

                                        -11-
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.” United States

v. Walker, 284 F.3d 1169, 1171 (10th Cir. 2002) (quotation omitted).

      The guidelines specifically allow for an upward departure where the

“criminal history category significantly under-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant will commit

further crimes.” USSG §4A1.3. Doe had thirty criminal history points, which

substantially exceeded the thirteen points necessary for a criminal history

category of VI. This clearly supports an upward departure of some degree. See

United States v. Hurlich, 348 F.3d 1219 (10th Cir. 2003). The seriousness of

Doe’s offenses (eighteen convictions, four of which were for burglary) also

supports an upward departure. As the district court noted, the “defendant’s

criminal history, high likelihood of recidivism, coupled with his increasing

involvement with firearms, remove defendant from the heartland and warrant an


at 15-16.) While it was certainly not our intent to require weighing prior arrests
against the value of Doe’s assistance, Doe is incorrect that this approach “avoided
the instructions given” to the district court. (Appellant’s Opening Br. at 12.) The
district court weighed the value of Doe’s assistance against the § 3553(a) factors,
which was the primary purpose of our prior order. Section 3661 simply supported
our conclusion that the district court should have considered Doe’s assistance to
the government in its sentencing decision.

                                        -12-
upward departure . . . .” (R. Vol. I, Doc. 24 at 3.) The district court laid an

adequate basis for its factual findings, which went uncontested in the district

court and on appeal.

      We reject Doe’s argument that the degree of departure was unreasonable.

An upward departure is reasonable if the district court “precisely lay[s] out its

reasoning and analysis as to why it is selecting a particular degree of departure”

sufficient to “give us reasonable indicia that the sentence the district court

pronounces is proportional to the crime committed.” United States v. Proffit, 304

F.3d 1001, 1012 (10th Cir. 2002) (quotation omitted). Ordinarily, “[t]he district

court accomplishes this task by using any reasonable methodology hitched to the

Sentencing Guidelines . . . .” Id. (quotation omitted). “The task of the sentencing

court is to attempt to predict what the Sentencing Commission would have

established as a guideline range had it adequately considered the circumstances

justifying the departure.” Hurlich, 348 F.3d at 1222 (quotations omitted).

      Here, the district court treated Doe as a career offender. The court noted if

Doe had been convicted of Counts 3 and 9 of the first superseding indictment, his

offense level would have been thirty-one after a three point reduction for

acceptance of responsibility. Coupled with his criminal history category of VI,

such convictions would have resulted in a guidelines range of 188 to 235 months

imprisonment. The district court’s methodology was not novel. We have

permitted analogies to career offender status when calculating the appropriate

                                         -13-
degree of an upward departure. See United States v. Mateo, 471 F.3d 1162, 1168

(10th Cir. 2006); United States v. Gardner, 905 F.2d 1432, 1438-39 (10th Cir.

1990). Moreover, Paragraph 3 of Doe’s plea agreement permitted the district

court to consider conduct charged in dismissed counts as “relevant conduct for

purposes of calculating the offense level for Counts 1 and 2, in accordance with

[USSG] § 1B1.3.” (R. Vol. I, Doc. 18 at 2.)

      Doe argues the district court’s departure amounts to an increase of twelve

offense levels and is unreasonable because we have been reluctant to approve

increases over eight levels. While an upward departure equivalent to an increase

of twelve offense levels is unusual, such a departure may be warranted in a “truly

extraordinary case[ ].” United States v. Goldberg, 295 F.3d 1133, 1142 (10th Cir.

2002). This is such a case. The court described Doe as someone “who should be

in prison and for whom prisons are made.” (R. Vol. II, Doc. 50 at 19.) Given

Doe’s history of serial burglary, narcotics use, and firearm possession, we are

sympathetic to the court’s concern that Doe is “a man who one day may end up in

somebody’s house in a burglary, either high on drugs or needing drugs, armed

with a firearm, and someone is killed.” (R. Vol. IV at 16.)

      Finally, we must evaluate whether the total sentence imposed is

substantively reasonable in light of the § 3553(a) factors. See Gall, 128 S. Ct. At

597; United States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006)

(“[A]fter Booker, every sentence that a district court ultimately imposes must

                                        -14-
reflect its determination of what is reasonable in light of the same § 3553(a)

factors, whether that sentence is within or outside the Guidelines range.”). Given

that the traditional departure analysis takes into account some measure of

reasonableness, the reasonableness inquiry under § 3553(a) will necessarily

overlap the departure analysis.

      In this case, the district court conscientiously, comprehensively and

competently supported its sentencing decision, explaining how its sentence was

consistent with the § 3553(a) factors. Significantly, the court imposed a sentence

at the bottom end of the calculated range, even though it stated it was “sorely

tempted to raise the sentence.” (R. Vol. II, Doc. 50 at 19.) Given the district

court’s findings, as well as its exhaustive analysis, we conclude the court did not

abuse its discretion in sentencing Doe. 8

      AFFIRMED.

                                                   ENTERED FOR THE COURT


                                                   Terrence L. O’Brien
                                                   Circuit Judge



      8
           We also reject Doe’s argument that the district court willfully disregarded
this Court’s prior order by undervaluing Doe’s assistance to the government. In
our previous decision, we specifically avoided ordering the district court to attach
a particular weight to Doe’s assistance. Doe, 398 F.3d at 1261 n.9 (“The court is
not . . . required to credit [Doe] for his assistance to the government.”). Rather,
we simply directed the court to “fully consider” Doe’s assistance. Id. at 1261.
The court clearly did so.

                                            -15-
