                                                                                 [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                            FOR THE ELEVENTH CIRCUIT                U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                          JULY 27, 2001
                                     _______________
                                                                       THOMAS K. KAHN
                                                                            CLERK
                                       No. 00-12340
                                     _______________

                          D. C. Docket No. 97-08109-CR-KLR


UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

       versus

GEORGE ROBERT HUNERLACH,
                                                   Defendant-Appellant.

                          ______________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                        ______________________________

                                      (July 27, 2001)


Before BARKETT and HULL, Circuit Judges, and LIMBAUGH*, District Judge.

BARKETT, Circuit Judge:



       *
          Honorable Stephen N. Limbaugh, U.S. District Judge for the Eastern District of
Missouri, sitting by designation.
      George Hunerlach appeals the 57-month sentence and $250,000 fine

imposed after his convictions for tax evasion, 26 U.S.C. § 7201, and for making

false statements, 26 U.S.C. § 7206(1). He argues that his 57-month sentence

should be reversed because the district court abused its discretion at resentencing

when it departed upward from criminal-history category I to criminal-history

category III under U.S.S.G. § 4A1.3.

                                    Background

      In 1988, Hunerlach pled guilty to filing a false tax return for the 1983 tax

year. Pursuant to the plea, Hunerlach agreed to pay the income tax liabilities for

that year within a “reasonable time.” Despite this agreement, from 1988 to 1997,

Hunerlach failed to make any payments and instead transferred assets out of the

country to prevent their seizure by the Internal Revenue Service (“IRS”), as well as

purchased, sold, and/or mortgaged property through the use of nominee

corporations. In 1994, during a meeting with an IRS Revenue Officer to discuss

Hunerlach’s tax liabilities, Hunerlach orally provided false information regarding

his assets to the IRS agent and provided the same false information on a signed

IRS Form 433A (Collection Information Statement for Individuals). As a result,

Hunerlach was convicted of one count of willfully attempting to evade and defeat

the payment of income taxes for the years 1981 though 1988, in violation of 26


                                          2
U.S.C. § 7201, and one count of willfully signing a Form 433A, that he did not

believe to be true and correct as to every material matter, in violation of 26 U.S.C.

§ 7206(1). Hunerlach appealed his convictions and sentence and this Court

affirmed his conviction but vacated his sentence and remanded for resentencing.

United States v. Hunerlach, 197 F.3d 1059, 1062 (11th Cir. 1999). Hunerlach now

appeals the sentence imposed on remand.

      At resentencing, the district court began the sentencing guidelines

computation by calculating the tax loss for purposes of determining Hunerlach’s

base offense level. In doing so, the district court considered the entire amount

Hunerlach owed, including the payment which he attempted to evade for taxable

years 1981 through 1988. This amounted to $544,555.24, which yielded a base

offense level of 17. The district court then referred to Section 4A1.1 of the

Guidelines to determine whether he could assign points to Hunerlach based upon

prior criminal history. Section 4A1.1 provides for the addition of a certain number

of points for each prior sentence of imprisonment when determining a defendant’s

criminal history category (“CHC”). Guidelines Section 4A1.2 defines “prior

sentence” as:

             [A] sentence imposed prior to sentencing on the instant
             offense, other than a sentence for conduct that is part of
             the instant offense. See § 4A1.2(a). A sentence imposed
             after the defendant’s commencement of the instant

                                          3
               offense, but prior to sentencing on the instant offense, is
               a prior sentence if it was for conduct other than conduct
               that was part of the instant offense. Conduct that is part
               of the instant offense means conduct that is relevant
               conduct to the instant offense under the provisions of
               section 1B1.3 (Relevant Conduct).

U.S.S.G. § 4A1.2, cmt. n.2 (emphasis added).1

       Ordinarily, the CHC calculated in this manner will sufficiently account for

the seriousness of the defendant’s criminal history. However, Section 4A1.3

envisions that there will be “limited circumstances” in which the CHC will not be

adequate and provides that in certain circumstances the district court may consider

an upward departure. U.S.S.G. § 4A1.3.

       In this case, the district court, in determining Hunerlach’s criminal history

category, could not count Hunerlach’s 1988 conviction because that conviction

was not a “prior” conviction pursuant to the definition of that term in Section

4A1.2. That is, the 1988 conviction was for conduct that had been considered

“part of the instant offense” and had been included by the district court as part of

the relevant conduct on the current conviction. See U.S.S.G. § 4A1.2., cmt. n.2.

Without being able to count the 1988 sentence, Hunerlach’s criminal history score

was zero and his CHC was I. The district court felt that this category “understated

       1
          Commentary and Application Notes to the Sentencing Guidelines are binding on the
courts unless they contradict the plain meaning of the text of the Guidelines. Stinson v. United
States, 508 U.S. 36, 38 (1993).

                                                4
the seriousness of defendant's criminal history.”2 Therefore, the district court

found that while the 1988 conviction must be excluded from determining the CHC,

the court could consider the conviction for purposes of departing from the

Guidelines under Section 4A1.3. The district court proceeded to depart across the

Guidelines’ Sentencing Table from CHC I, skipping CHC II, and establishing

Hunerlach’s criminal history category as CHC III. Accordingly, Hunerlach was

sentenced to 57 months’ imprisonment on Count One and 36 months’

imprisonment on Count Two, the terms to run concurrently, followed by three

years of supervised release. In addition, the district court also departed upward

from the otherwise applicable guideline fine range, and imposed a fine of

$250,000. On appeal Hunerlach challenges both the imprisonment and fine

provisions of his sentence.

       As to the sentence of imprisonment, Hunerlach argues that the district court

lacked authority to depart upward from CHC I because the prior conviction that

served as a basis for finding his criminal history score inadequate was part of the

“relevant conduct” of the instant offense which the district court had already

included in the computation of the base offense level.

       2
        As to Count Two, pursuant to U.S.S.G. §§ 5G1.1(a) and 5G1.2(b), Hunerlach’s
Guideline sentence is 36 months, the statutory maximum under 26 U.S.C. § 7206(1). Therefore,
Hunerlach’s challenge to the upward departure relates only to the sentence imposed on Count
One.

                                             5
      As to the fine imposed, Hunerlach argues that the district court erred when it

departed upward from the sentencing guidelines fine range and imposed the

statutory maximum fine of $250,000 because:

      (1) the district court did not notify him that it was considering a
      departure from the Guidelines fine table as required by Burns v.
      United States, 501 U.S. 129, 138-39 (1991) and Fed. R. Crim. P. 32;

      (2) the district court failed to make the requisite findings to support a
      lawful departure from the guidelines, U.S.S.G. § 5E1.2(d); and

      (3) the district court failed to excuse him from payment of a fine based
      upon his inability to pay, U.S.S.G. § 5E1.2(a).


      We review the district court’s application of the sentencing guidelines de

novo. United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997); United

States v. Lewis, 115 F.3d 1531, 1536 (11th Cir. 1997). We accept the district

court’s findings of fact related to sentencing unless they are clearly erroneous, see

Barakat, 130 F.3d at 1452, and we review departures from the Sentencing

Guidelines under the abuse of discretion standard, see Koon v. United States, 518

U.S. 81, 96-100 (1996).

                                     Discussion

      The first question in this case is whether a district court can depart upward

from CHC I based on criminal conduct which also constitutes relevant conduct that

the district court has already considered in calculating the base level for the offense

                                           6
of conviction.

      Application note 1 of Section 4A1.2 defines the conduct underlying a

“prior sentence” and “relevant conduct” as mutually exclusive. The Sentencing

Guidelines thus clearly prohibit a sentencing court from considering relevant

conduct in initially determining the applicable CHC. The Government argues,

however, that while Section 4A1.2 prohibits the sentencing court from considering

relevant conduct in calculating the applicable CHC, it does not prohibit the

sentencing court from again considering relevant conduct in determining whether a

departure from that category pursuant to Section 4A1.3 is appropriate. Section

4A1.3 provides:

             If reliable information indicates that the criminal history
             category does not adequately reflect the seriousness of
             the defendant’s past criminal conduct or the likelihood
             that the defendant will commit other crimes, the court
             may consider imposing a sentence departing from the
             otherwise applicable guideline range. Such information
             may include, but is not limited to, information
             concerning:

             (a) prior sentence(s) not used in computing the criminal
             history category (e.g., sentences for foreign and tribal
             offenses);
             (b) prior sentence(s) of substantially more than one year
             imposed as a result of independent crimes committed on
             different occasions;
             (c) prior similar misconduct established by a civil
             adjudication or by a failure to comply with an
             administrative order;

                                          7
              (d) whether the defendant was pending trial or sentencing
              on another charge at the time of the instant offense;
              (e) prior similar adult criminal conduct not resulting in a
              criminal conviction.

U.S.S.G. § 4A1.3.3

       We are persuaded that the logical inference from the language of Section

4A1.3 is that the Sentencing Commission intended that the word “prior” have the

same meaning as it has in Section 4A1.1 and as defined in Section 4A1.2. It would

seem illogical to have chosen the same terminology in Section 4A1.3 as in Section

4A1.1 yet accord a it different meaning. When a district court determines that the

conduct underlying a conviction is relevant conduct to the instant offense, and

considers it as a factor in calculating the base offense level, it cannot then be




       3
        The commentary to Section 4A1.3 provides the following example of when a departure
under Section 4A1.3 might be appropriate:

              For example, a defendant with an extensive record of serious,
              assaultive conduct who had received what might now be
              considered extremely lenient treatment in the past might have the
              same criminal history category as a defendant who had a record of
              less serious conduct. Yet, the first defendant’s criminal history
              clearly may be more serious. This may be particularly true in the
              case of younger defendants (e.g., defendants in their early twenties
              or younger) who are more likely to have received repeated lenient
              treatment, yet who may actually pose a greater risk of serious
              recidivism than older defendants.

U.S.S.G. § 4A1.3, cmt. background.

                                               8
simultaneously considered as a “prior sentence” under Section 4A1.3.4 See

United States v. Baird, 109 F.3d 856 (3d Cir. 1997) (stating in dicta that “prior”

means unrelated to the offense of conviction); United States v. Jones, 948 F.2d 732

(D.C. Cir. 1991); United States v. Adudu, 993 F.2d 821, 823 (11th Cir. 1993)

(reversing where upward departure was based on circumstances of current crime,

not past criminal conduct); United States v. Kim, 896 F.2d 678, 683 (2d Cir. 1990)

(“[b]y focusing on ‘prior’ misconduct [in U.S.S.G. § 4A1.3(e)], the Commission

was obviously contemplating acts not relevant to the offense of conviction, since

those acts would enter into the ‘relevant conduct’ analysis used to determine the

base offense level and specific offense characteristics”); United States v. Coe, 891

F.2d 405, 409-10 (2d Cir. 1989) (“where a defendant commits a series of similar

crimes, it would be elevating form over substance to regard the early episodes in

the series as ‘prior criminal history’ simply because the defendant pled guilty to the

last in the series, rather than the first.”). But see United States v. Ashburn, 38 F.3d



       4
           Of course, prior convictions not counted toward the criminal history score under
Section 4A1.2 may be considered as a basis for an upward departure under Section 4A1.3. Thus
while Section 4A1.2 prohibits the use of convictions which are remote in time from the offense
of conviction, Section 4A1.3 specifically permits a departure based on those convictions when
they are either similar to the offense of conviction or otherwise serious. U.S.S.G. § 4A1.2, cmt.
n. 8; see also, United States v. Brown, 51 F.3d 233, 234 (11th Cir. 1995). It is only because
Hunerlach’s prior conviction is for conduct that is “relevant” to the instant offense, and therefore
is not “past” criminal conduct, that it cannot be counted under either Section 4A1.2 or Section
4A1.3.

                                                 9
803, 808 n.14 (5th Cir. 1994) (en banc) (holding that a district court may consider

prior similar criminal conduct that is the subject of dismissed counts of an

indictment may justify an upward departure and stating in dicta that “prior”

means prior to sentencing). Accordingly, under the facts of this case, the

district court erred in departing upward to CHC III based on the 1988 conviction.



      As to the fine imposed in this case, we find no error. Under the Sentencing

Guidelines, the imposition of a fine is mandatory unless “the defendant establishes

that he is unable to pay and is not likely to become able to pay.” U.S.S.G. §

5E1.2(a). Unless the defendant establishes his inability to pay all or part of a fine,

the fine imposed “shall be within the range specified” in the table set forth in

subsection (c) of Section 5E1.2. Once the court determines that a fine is

appropriate, the Sentencing Guidelines require the court to consider eight factors in

setting the amount of the fine, including the evidence presented as to the

defendant's ability to pay. U.S.S.G. § 5E1.2(d).

      In this case, the Guideline range for the imposition of a fine was $7,500 to

$75,000. U.S.S.G. § 5E1.2(c)(3). The district court found that Hunerlach was able

to pay a fine and upwardly departed, imposing a fine of $250,000, the statutory

maximum for his offense. We review this departure for abuse of discretion. Koon,


                                          10
518 U.S. at 99.

      As to Hunerlach’s argument that the district court failed to provide notice of

its intent to depart as required by Burns v. United States, 501 U.S. at 138-39, we

find that he has failed to meet his burden. Burns requires the district court to give

“reasonable notice” that it is contemplating an upward departure in the sentencing

range established by the Sentencing Guidelines. Id. at 138. “This notice must

specifically identify the ground on which the district court is contemplating an

upward departure.” Id. at 138-39. This Court has held that Burns requires that the

notice “must affirmatively indicate that an upward departure is appropriate based

on a particular ground” and that the defendant must be provided with notice

“setting forth the potential ground (or grounds) for the upward departure within a

‘reasonable’ amount of time prior to the sentencing hearing.” United States v.

Paslay, 971 F.2d 667, 673-74 n.11 (11th Cir. 1992). However, because Hunerlach

failed to object to the lack of notice under Burns at the sentencing hearing, our

review is limited to plain error. See id. at 674 n. 13 (“Burns notice will be subject

to waiver and limited review under the plain error rule when a defendant fails to

make a timely objection predicated on Burns.”).

      For this Court “to correct plain error: (1) there must be error; (2) the error

must be plain; and (3) the error must affect substantial rights.” United States v.


                                          11
Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995) (per curiam). We conclude that

even if notice was lacking under Burns, this error did not affect Hunerlach’s

substantial rights. Paslay, 971 F.2d at 674. On appeal, Hunerlach has offered no

arguments, other than those he raised at sentencing, to challenge the fine.

Hunerlach’s principal challenge to his fine on appeal is that he lacks the ability to

pay the fine. Hunerlach raised this objection at sentencing and he has not shown

that, had he had notice, he would have been able to present additional evidence or

arguments to support his objection. See United States v. Lopreato, 83 F.3d 571,

577 (2d Cir. 1996) (finding that even if notice was lacking under Burns, the error

was harmless as the only argument defendant claimed he would have made had he

been afforded notice had clearly been considered by the district court).

      We also find no merit to the claim that the district court failed to impose the

fine in accordance with the requirements of the Sentencing Guidelines or that the

district court clearly erred in finding that he had the ability to pay. The Guidelines

require that the factors listed in Section 5E1.2(d) must be considered prior to the

imposition of any fine. We have not, however, required that the district court make

express specific findings concerning each of these factors. We have simply

required sufficient record evidence to support the conclusion that the factors were

considered. United States v. Garrison, 133 F.3d 831, 849 (11th Cir. 1998) (citing


                                          12
United States v. Lombardo, 35 F.3d 526, 529-30 (11th Cir. 1994)). The PSR in

this case delineated Hunerlach’s financial situation based upon interviews with

Hunerlach’s wife and other witnesses. It also provided information with respect to

the other factors enumerated in Section 5E1.2 and concluded that based on this

information, Hunerlach was able to both pay a fine and satisfy outstanding tax

liabilities. In addition, the Government noted that at the time of trial Hunerlach

admitted that he had $400,000 to $450,000 in Barclays Bank in the Bahamas and

that he had spent over a decade moving his assets offshore and into the names of

nominee owners. At sentencing Hunerlach argued that he had sold the assets listed

in the PSR. However, he presented no documentation of these transfers nor

testimony as to what had happened to the proceeds. Moreover, the amount of the

departure in this case, far from being prohibited by the Sentencing Guidelines, is

specifically contemplated by the Guidelines:

             The Commission envisions that for most defendants, the
             maximum of the guideline fine range from subsection (c)
             will be at least twice the amount of gain or loss resulting
             from the offense. Where, however, two times either the
             amount of gain to the defendant or the amount of loss
             caused by the offense exceeds the maximum of the fine
             guideline, an upward departure from the fine guideline
             may be warranted.

             Moreover, where a sentence within the applicable fine
             guideline range would not be sufficient to ensure both the
             disgorgement of any gain from the offense that otherwise

                                         13
                would not be disgorged (e.g., by restitution or forfeiture)
                and an adequate punitive fine, an upward departure from
                the fine guideline range may be warranted.


U.S.S.G. § 5E1.2, cmt. (4). According to the PSR, the tax loss in this case was

$544,555 and the total actual loss to the government exceeded $3,000,000, thus

twice the amount of the tax loss alone is over $1,000,000 and twice the total is over

$6,000,000. Based on this record we are satisfied that the district court did not

abuse its discretion in imposing the fine in this case.

                                       Conclusion

      For all of the foregoing reasons we affirm the district court’s sentence on

Count II, affirm the district court’s imposition of the fine in this case, and vacate

the district court’s sentence on Count I and remand for resentencing consistent with

this opinion.

      AFFIRMED in part,VACATED in part, and REMANDED.




                                            14
