                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              DEC 28 1998
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                      No. 98-1124
           v.                                             (D. Colorado)
 JOSE A. CARREON-ORTEGA,                             (D.C. No. 97-CR-288-S)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before ANDERSON , McKAY , and LUCERO , 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. 34.1.9. The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the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
      On October 31, 1997, Jose A. Carreon-Ortega entered into a plea agreement

under which he agreed to plead guilty to illegally re-entering the United States in

violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). On March 27, 1998, at a

subsequent sentencing hearing, Carreon-Ortega was sentenced to a term of 71

months imprisonment for his offense. In imposing this sentence, the district court

departed upward from the applicable range dictated by federal sentencing

guidelines. The sole issue presented in this appeal is whether the district court

erred by departing from the guideline range. For the reasons discussed below, we

affirm the decision of the district court.



                                  BACKGROUND

      Carreon-Ortega is a citizen of Mexico. In 1988, while in Colorado, he was

convicted of disturbing the peace and shoplifting. For these offenses, he was

fined and released (although the fines weren’t paid until 1994, and in 1989 he had

a warrant issued for his arrest). In 1988 and 1989, Carreon-Ortega engaged in a

series of criminal acts against a woman and her young children. On July 18,

1988, the woman left her children in Carreon-Ortega’s care for a short time while

she went out. During the time the woman was gone, Carreon-Ortega sexually

abused the woman’s three young daughters. Later that same year, in September

1988, Carreon-Ortega “pushed his way into the victim’s trailer and stole her


                                             -2-
wallet containing $170.” Presentence Investigation Report, R. Supp. Vol. 1, at 7.

In December of that same year, he and two companions accosted the woman from

behind on a street and stole her purse, which contained $100 in cash and $300 in

food stamps. The very next day, Carreon-Ortega threw an object through the

woman’s trailer window, and was heard to state “I’m going to get you.”     Id. at 8.

In March 1989, he and one companion again accosted the woman on a street and

took her bag, this time containing $250 in cash. For this series of offenses,

Carreon-Ortega was charged with three counts of sexual assault of a child, one

count of burglary, one count of robbery, three counts of misdemeanor theft, one

count of intimidating a witness, and one count of misdemeanor harassment.

      On November 8, 1990, he entered into a plea agreement, under which he

pled guilty to one felony count of sexual assault of a child, three separate counts

of misdemeanor theft, and one count of misdemeanor harassment. He was

sentenced to four years’ imprisonment on the sexual abuse charge, and to six

months’ imprisonment on each of the misdemeanor charges. The sentences ran

concurrently, and Carreon-Ortega served his time in prison. Upon his release

from prison, he was deported to Mexico on January 6, 1994.

      On October 13, 1994, a man by the name of Jose Carreon-Ortega was

arrested in Denver, based on the two outstanding warrants for failure to pay the

fines related to the 1988 disturbing the peace and shoplifting convictions. The


                                          -3-
man arrested in Denver paid the outstanding fines. However, Carreon-Ortega

disputes that he was the man arrested in Denver in October 1994 and claims that

he was still in Mexico at that time. If the man arrested really was the Jose

Carreon-Ortega who is the defendant in this case, then Carreon-Ortega had re-

entered the country illegally in 1994, because he had not sought or obtained

permission from the Attorney General to re-enter the United States. In any event,

the man calling himself Jose Carreon-Ortega was “released back” from custody of

the Denver police because “the INS was too busy to go pick him up.” R. Vol. 6 at

6.

      Carreon-Ortega, for his part, claims that after his deportation, he first re-

entered the country in May 1996. His presence in this country was discovered in

July 1997, when he was arrested on suspicion of first degree sexual assault.

Colorado prosecutors later dropped the charges and declined to prosecute

Carreon-Ortega for this offense. However, his arrest was enough to alert federal

authorities to his presence in the United States, and, apparently, this time they

were not too busy to pick him up. On September 8, 1997, he was officially

charged with aggravated re-entry into the United States, in violation of 8 U.S.C.

§§ 1326(a) and (b)(2).

      On October 31, 1997, Carreon-Ortega entered into a plea agreement with

federal prosecutors, under which he agreed to plead guilty to the illegal re-entry


                                          -4-
charge, if the government would recommend a sentence at the bottom of the

applicable guideline range, which the parties agreed was 46-57 months. This

sentence range was based on a base offense level of 21, and a criminal history

score of five—three points for the felony sexual abuse charge and two points for

the related misdemeanor theft and harassment charges. This score placed

Carreon-Ortega in criminal history category III.

      The presentence investigation report, however, issued November 25, 1997,

assigned Carreon-Ortega a criminal history score of nine, which placed him in

criminal history category IV, with a higher sentencing range of 57-71 months.

This higher score was based on one additional point for the 1988 shoplifting

charge, one additional point, under § 4A1.1(f) of the sentencing guidelines,

because the probation officer considered the misdemeanor harassment charge to

be violent, and two additional points, under § 4A1.1(e), because the probation

officer considered part of the instant offense (illegal re-entry) to have been

committed less than two years following Carreon-Ortega’s release from custody.

The probation officer based his recommendation regarding the last two additional

points on the premise that the man arrested in Denver in 1994 was the same Jose

Carreon-Ortega who is the defendant in this case. The probation officer also

noted that, if the three theft and one harassment convictions were for some reason

not considered related, then Carreon-Ortega would have a criminal history score


                                          -5-
above 13, placing him in criminal history category VI. The officer recommended,

however, that the four misdemeanor convictions be considered related because

there was a common victim. The probation officer pointed out to the court that

perhaps an upward departure would be warranted in this case according to the

sentencing guidelines, if the court were to determine that Carreon-Ortega’s

criminal history score underrepresented his criminal history.

      On February 25, 1998, Carreon-Ortega filed objections to the presentence

report. First, he objected to the probation officer’s one-point addition for the

harassment charge, arguing that class 3 misdemeanors in Colorado carry a

maximum sentence of six months in jail, and therefore can never be “violent”

crimes as defined by the sentencing guidelines in § 4B1.2(a), which restricts the

definition of “crimes of violence” to crimes punishable by more than one year.

Second, he objected to the probation officer’s two-point addition stemming from

the alleged 1994 re-entry, because of Carreon-Ortega’s assertion that he was not

the man arrested in Denver in 1994 and that he had re-entered the country, for the

first time since his deportation, in May 1996. Third, he objected to the two-point

assessment for the misdemeanor theft and harassment charges, contending that

these charges were related to the felony sexual abuse charge. Finally, he moved

the court to downward depart from the sentencing guidelines’ range, because he

claimed his criminal history was overrepresented by his criminal history score.


                                         -6-
      The district court, in a hearing on March 11, 1998, sustained Carreon-

Ortega’s first objection, ruling that the harassment charge could not have been a

crime of violence. In the same hearing, the district court overruled Carreon-

Ortega’s third objection, ruling that the misdemeanor theft and harassment

charges, while related to each other, were not related to the sexual abuse charge

because different victims were involved.    The court postponed any ruling on

Carreon-Ortega’s second objection, in order to give the government time to gather

evidence that the man arrested in Denver in 1994 really was the defendant.

      The district court held another hearing on March 27, 1998, to consider

Carreon-Ortega’s second objection, and to consider whether to depart upward or

downward from the applicable guideline range. At that hearing, the government

admitted that it could not produce any hard evidence that the man arrested in

Denver in 1994 really was the defendant, and so the district court sustained

Carreon-Ortega’s second objection. After ruling on all of the objections, the

court determined that Carreon-Ortega had a criminal history score of six, which

placed him, as anticipated by the plea agreement, in criminal history category III,

which carries, at base offense level 21, a range of 46-57 months imprisonment.

      The district court concluded, however, that criminal history category III “is

inadequate to reflect the criminal history category to be assigned and that this

defendant’s criminal history is significantly more serious that other defendants in


                                           -7-
the criminal history category III” and that “his criminal history category

underrepresents his criminal history.” R. Vol. 7 at 24. The court departed

upward from this category, to criminal history category IV. To support this

determination, the district court cited § 4A1.3 of the Sentencing Guidelines, and

one of the application notes following § 4A1.2. Section 4A1.3 authorizes courts

to depart upward from the guideline range where “reliable information” indicates

underrepresentation; the application note to § 4A1.2 specifically mentions that

related but uncounted cases can, in some cases, give rise to a situation of

underrepresentation. The district court stated that all but one of the misdemeanor

theft and harassment convictions had gone uncounted under the guidelines, and

that therefore Carreon-Ortega’s criminal history score underrepresented his true

criminal history. The district court also stated that Carreon-Ortega was originally

charged with burglary and robbery, much more serious offenses than those to

which he pled guilty, and “mentioned,” while explicitly stating that these factors

played no role in its decision, that Carreon-Ortega was suspected to have illegally

re-entered the country in 1994, and that he had been arrested, although not

charged or prosecuted, with another count of sexual assault in 1997.   Id. at 26-28.




                                           -8-
      The district court proceeded to sentence Carreon-Ortega as though he were

in criminal history category IV, and imposed a sentence—71 months

imprisonment—at the upper end of the category IV guideline range.

      Carreon-Ortega now appeals from the district court’s decision to depart

upward from the applicable sentencing guideline range. He argues that the

district court impermissibly used unproven charges, such as the 1988 robbery and

burglary charges, the 1994 arrest, and the 1997 sexual assault arrest, as the basis

for its upward departure, and argues that his criminal history, if anything, is

overrepresented by a criminal history score of six.



                            STANDARD OF REVIEW

      When reviewing district court decisions to depart from the sentencing

guidelines, appellate courts are to apply “a unitary abuse-of-discretion standard.”

Koon v. United States , 518 U.S. 81, 100 (1996). This standard “includes review

to determine that the discretion was not guided by erroneous legal conclusions.”

Id. We have recently stated that appellate courts, in conducting this review, must

undertake a four-step evaluation of the district court’s decision to depart:

      (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. In performing this review,  Koon tells us

                                          -9-
       that an appellate court need not defer to the district court’s resolution of the
       first question, whether a factor is a permissible departure factor under any
       circumstances, but must give “substantial deference” to the district court’s
       resolution of the second question, whether “a particular [defendant] is
       within the heartland given all the facts of the case.”

United States v. Collins , 122 F.3d 1297, 1303 (10th Cir. 1997) (citing and quoting

Koon ).



                                     DISCUSSION

I.     Step One–Permissibility of Departure Factors

       Our starting point, in any discussion of departure from the sentencing

guidelines, must be the statutory pronouncements of Congress and the related

pronouncements of the United States Sentencing Commission. Congress has

instructed courts not to depart from the applicable sentencing guidelines “unless

the court finds that there exists an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines.” 18 U.S.C. § 3553(b); U.S.

Sentencing Guidelines Manual § 5K2.0 (1998). We have held that upward

departures under § 4A1.3, such as the one employed by the district court in this

case, are a subset of departures under § 5K2.0.    See United States v. Maldonado-

Campos , 920 F.2d 714, 719 n.2 (10th Cir. 1990). Section 4A1.3 permits an

upward departure when “reliable information indicates that the criminal history


                                           -10-
category does not adequately reflect the seriousness of the defendant’s past

criminal conduct or the likelihood that the defendant will commit other crimes”

(emphasis added). The district court, in imposing the upward departure in this

case, seemed to rely largely on the first prong,    1
                                                        stating that “I think this is an

atypical case. Factual basis for departure is that . . . the defendant was assessed

only five criminal history points as a result of five convictions.” R. Vol. 7, at 25.

       We must first determine whether the district court’s stated ground for

departure is a permissible ground. Underrepresentation of a defendant’s criminal

history is clearly a permissible ground for an upward departure. “Because section

4A1.3 provides an encouraged basis for departure not already taken into account

by the Commission, over-representation of a defendant’s criminal history or

likelihood for recidivism always will be an approved ground for departure.”

Collins , 122 F.3d at 1304.




       1
        The district court did mention, seemingly in passing, that recidivism was
also a factor, stating that “I think there is ample authority for an upward departure
in this matter, and that the facts and circumstances surrounding this defendant’s
past history and his possibility or probability of recidivism clearly indicate that a
departure upward of one category is clearly appropriate.” R. Vol. 7, at 28. The
district court also stated that Carreon-Ortega had been “coming back and forth
across the border every time he sees fit,” and that “it’s pretty obvious his purpose
is to commit crimes because every time he has been here he has done that.” R.
Vol. 6, at 8, 9. However, the district court clearly indicated that the major basis
for the upward departure was its determination that Carreon-Ortega’s criminal
history was underrepresented by his criminal history score.

                                             -11-
       But this does not end the inquiry. We must next determine whether the

factual bases set forth by the district court in support of its finding of

underrepresentation are themselves permissible grounds for departure.        See id.

(stating that “[t]hese supporting facts themselves must constitute permissible

grounds for departure”). Upon examination, we think the factual bases relied

upon by the district court constitute permissible grounds for departure.

       Under the sentencing guidelines, “[p]rior sentences imposed in related

cases are to be treated as one sentence” for the purposes of tabulating criminal

history points. U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (1998).

“[P]rior sentences are considered related if they resulted from offenses that (A)

occurred on the same occasion, (B) were part of a single common scheme or plan,

or (C) were consolidated for trial or sentencing.”   Id. § 4A1.2, Application Note

3. In this case, the district court found that the three theft convictions and the one

harassment conviction were related under this section. As a result, Carreon-

Ortega was assigned only two criminal history points for these convictions.

       The Sentencing Commission explicitly recognized that this rule regarding

related offenses could result in several convictions going uncounted. The

Commission stated that “court[s] should be aware that there may be instances in

which this definition is overly broad and will result in a criminal history score

that underrepresents the seriousness of the defendant’s criminal history and the


                                            -12-
danger that he presents to the public.”      Id. This court has sanctioned similar

upward departures in prior cases, where the district court determined that the

defendant’s criminal history was underrepresented due to uncounted “related”

offenses. See United States v. White , 893 F.2d 276, 280 (10th Cir. 1990)

(upholding a district court’s decision to depart upward because of uncounted

related offenses, and stating that “[w]e have little difficulty in concluding that . . .

the district court’s justifications for departure were not already adequately

considered by the Sentencing Commission in formulating the guidelines, . . . since

the Sentencing Commission explicitly stated” in Application Note 3 that

uncounted offenses could give rise to underrepresentation);         see also United States

v. Rivas , 922 F.2d 1501, 1504-05 (10th Cir. 1991) (making a similar holding).

Other circuits have also sanctioned upward departures under similar

circumstances, citing Application Note 3.        See , e.g. , United States v. Connelly ,

156 F.3d 978, 983 (9th Cir. 1998);        United States v. Gammon , 961 F.2d 103, 106

(7th Cir. 1992); United States v. Ocasio , 914 F.2d 330, 334 (1st Cir. 1990);

United States v. Metcalf , 898 F.2d 43, 46 n.6 (5th Cir. 1990);       United States v.

Jackson , 883 F.2d 1007, 1009 (11th Cir. 1989). Thus, it is beyond question that a

district court may depart upward from the sentencing guidelines’ heartland when

it determines that the defendant’s criminal history is underrepresented due to

uncounted “related” offenses.


                                              -13-
       Finally, we must determine whether the specific factual circumstances

described by the district court in this case, in support of its finding of

underrepresentation, “are permissible departure factors.”      Collins , 122 F.3d at

1305. In this case, the district court cited three uncounted misdemeanor offenses;

Carreon-Ortega was given only two criminal history points for four separate

convictions of misdemeanor theft and harassment. The question before us is

whether an upward departure is permissible on these facts, and, specifically,

whether an upward departure is permissible on the basis of uncounted

misdemeanor offenses.

       At least one circuit has, at least most of the time, imposed a “seriousness”

requirement for upward departures based on uncounted criminal conduct, stating

that “uncounted criminal conduct must in all cases cross a threshold of

‘seriousness’ to support a departure.”     Connelly , 156 F.3d at 984 (although citing

some Ninth Circuit cases which did not require an “explicit showing of

seriousness”). The Ninth Circuit implies such a requirement from the language of

§ 4A1.3 and from “the examples of departure-worthy conduct listed in § 4A1.3.”

Id. ; see also United States v. Carrillo-Alvarez   , 3 F.3d 316, 320 (9th Cir. 1993).

This circuit has never explicitly adopted this “seriousness” requirement in cases




                                            -14-
construing Application Note 3.    2
                                       Other circuits either have not addressed the

issue, or have been willing to impose upward departures on the basis of

uncounted misdemeanor offenses.          See Gammon , 961 F.2d at 106 (approving a

district court decision to upward depart based on an uncounted conviction for a

“lesser included offense of theft”);     cf. United States v. Carpenter , 963 F.2d 736,

744 (5th Cir. 1992) (approving a district court decision to depart upward on the

basis of a “juvenile adjudication for burglary and a misdemeanor conviction for

theft” where both were “outside the limitations period”; this latter conviction

involved a “violent purse snatching”). There are also a number of cases within

the Ninth Circuit which have increased sentences based on uncounted

misdemeanor convictions.       See , e.g. , United States v. Durham , 941 F.2d 858, 862-

63 (9th Cir. 1991) (making no mention of a “seriousness” requirement, and

sanctioning an upward departure based on “prior misdemeanors”).

       Even under the Ninth Circuit line of cases applying the “seriousness”

requirement in Application Note 3 cases, the application of the rule has been less

than uniform. For instance, the Ninth Circuit has termed immigration violations,

marijuana trafficking, and prison fights and public transportation fare evasion as



       We have, however, imposed such a requirement in cases construing
       2

Application Note 8. See United States v. Wyne, 41 F.3d 1405, 1408-09 (10th Cir.
1994). This requirement is compelled by the express language of Application
Note 8, which allows upward departures for “serious dissimilar” conduct
committed outside the time periods dictated by the sentencing guidelines.

                                             -15-
“serious” conduct, while declaring that auto burglary and tribal convictions for

assault and battery fall outside the “serious” category.     See Connelly , 156 F.3d at

984 (citing cases). It appears to us that even under the Ninth Circuit’s rule, some

misdemeanors would qualify as “serious” conduct while others would not.

Application of the Ninth Circuit’s rule would not necessarily aid Carreon-Ortega.

       However, we do not think we need to decide, in this case, whether we

would apply a similar rule in Application Note 3 cases. Even assuming,

arguendo, that such a rule applied in this case, we think Carreon-Ortega’s conduct

is sufficiently serious to form a permissible basis for an upward departure, even

under the Ninth Circuit’s “seriousness” requirement. The uncounted offenses

included a December 1988 incident in which Carreon-Ortega and two accomplices

confronted the female victim on the street, stole her purse, and drove off; a

December 1988 incident in which Carreon-Ortega threw a hard object through a

window of the same woman’s trailer, while yelling “I’m going to get you”; and a

March 1989 incident in which Carreon-Ortega and one accomplice again accosted

the same victim on the street and again stole her purse. R. Supp. Vol. 1, at 8-9.

These incidents are different from, and more serious than, marijuana possession

or tribal convictions for misdemeanor assault and battery, and at least as serious

as other offenses deemed “serious” by the Ninth Circuit, such as immigration

violations, and prison fights and transportation fare evasion.     See Connelly , 156


                                             -16-
F.3d at 984. These incidents are also much more serious than the conduct at issue

in United States v. Wyne , 41 F.3d 1405 (10th Cir. 1994), an Application Note 8

case in which the defendant’s uncounted offense was “assault on a female,” but

where the relevant state statute defined the offense broadly, to include even

instances of yelling at a female, and where there was no evidence in the record

setting forth the nature of the defendant’s specific criminal conduct.   Id. at 1408-

09. We are persuaded that a pattern of uncounted criminal conduct which

includes two separate instances of purse-snatching and one incident where the

defendant threw a hard object into an occupied residence is sufficiently serious to

permit a district court to depart upward from the sentencing guidelines’

heartland.   3



       Therefore, we hold that the factors relied upon by the district court in

making its decision to depart upward are permissible departure factors.

Regardless of whether we apply the Ninth Circuit’s “seriousness” requirement, it

is permissible for the district court to depart upward on the basis of two


       3
        We express no opinion as to whether the district court’s “mention” of the
robbery and burglary charges, the unproven 1994 arrest, and the uncharged 1997
assault arrest, were improper. The district court explicitly stated that it did not
consider the 1994 or 1997 incidents in arriving at its decision to depart upward,
and we think that, even assuming, without deciding, that the district court’s
mention of the 1988 robbery and burglary charges was improper, the district
court’s decision was still grounded in a permissible factual basis for upward
departure. We are persuaded that the uncounted misdemeanor convictions, by
themselves, are enough to constitute a valid basis for an upward departure.

                                            -17-
uncounted convictions for misdemeanor theft, and one uncounted conviction for

misdemeanor harassment.



II.    Steps Two and Three–The Decision to Depart

       We now proceed to the second and third parts of our inquiry: “whether the

combination of factors identified by the district court warrants” an upward

departure from the sentencing guidelines, and “whether the record sufficiently

supports the factual basis underlying the departure.”      Collins , 122 F.3d at 1308.

At this stage of the analysis, our review is very deferential. The Supreme Court

has instructed federal appellate courts to take care not to “ignore the district

court’s special competence . . . about the ‘ordinariness’ or ‘unusualness’ of a

particular case,” and has stated that district courts have an “institutional

advantage over appellate courts” in making typicality determinations, because

district courts see many more such cases than appellate courts do.      Koon , 518

U.S. at 98-99. The district court in this case specifically held that Carreon-

Ortega’s criminal history was “atypical” and that “his criminal history category

underrepresents his criminal history.” R. Vol. 7 at 24, 25. Furthermore, it is

undisputed that Carreon-Ortega was convicted of the uncounted offenses, and that

these offenses were not assigned any criminal history points at sentencing. We

hold that the district court did not abuse its discretion in determining that this


                                           -18-
defendant’s particular criminal history was not adequately represented by his

criminal history score, and that the factual basis underlying the upward departure

is sufficiently supported in the record.



III.   Step Four–The Degree of Departure

       The district court only departed one criminal history category upward.

Carreon-Ortega makes no separate argument that the degree of the district court’s

upward departure was unreasonable. Thus, we conclude that the degree of the

district court’s upward departure was reasonable.

       Accordingly, the decision of the district court is AFFIRMED.

                                 ENTERED FOR THE COURT



                                 Stephen H. Anderson
                                 Circuit Judge




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