           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0013P (6th Cir.)
                    File Name: 00a0013p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                             ;
                              
 UNITED STATES OF AMERICA,
                              
           Plaintiff-Appellee,
                              
                              
                                               No. 98-1558
          v.
                              
                               >
 SCOTT MICHAEL BARBER,        
        Defendant-Appellant. 
                             1

        Appeal from the United States District Court
   for the Western District of Michigan at Grand Rapids.
      No. 97-00091—Gordon J. Quist, District Judge.
                     Argued: May 19, 1999
              Decided and Filed: January 11, 2000
  Before: NORRIS and COLE, Circuit  Judges; SARGUS,
                   District Judge.*




    *
      The Honorable Edmund A. Sargus, Jr., United States District Judge
for the Southern District of Ohio, sitting by designation.


                                  1
2    United States v. Barber                      No. 98-1558      No. 98-1558                      United States v. Barber      11

                    _________________                                                            IV.
                         COUNSEL                                      Based upon the foregoing, this Court concludes that the
                                                                   district court did not abuse its discretion in determining that
ARGUED: Craig A. Frederick, Grand Rapids, Michigan, for            the defendant’s criminal history did not adequately represent
Appellant. Daniel Y. Mekaru, OFFICE OF THE U.S.                    his past criminal conduct or the likelihood that he would
ATTORNEY FOR THE WESTERN DISTRICT OF                               commit other crimes. This Court further finds that the trial
MICHIGAN, Grand Rapids, Michigan, for Appellee.                    court’s upward departure by three offense levels was
ON BRIEF: Craig A. Frederick, Grand Rapids, Michigan,              warranted by the circumstances of this case and was not an
for Appellant. Daniel Y. Mekaru, OFFICE OF THE U.S.                abuse of discretion. Finally, this Court concludes that the trial
ATTORNEY FOR THE WESTERN DISTRICT OF                               court’s use of the offense level axis, rather than criminal
MICHIGAN, Grand Rapids, Michigan, for Appellee.                    history category, as a basis for departure premised on the
                                                                   defendant’s criminal history was not erroneous under the
                    _________________                              circumstances of this case.
                        OPINION                                     The judgment of the district court is therefore
                    _________________                              AFFIRMED.
   SARGUS, District Judge. Defendant, Scott Michael
Barber, entered a plea of guilty to a violation of 18 U.S.C.
§922(g)(1), charging him with knowingly possessing a
firearm as a convicted felon. At sentencing, the district court
granted the Government’s motion for an upward departure
based upon its determination that the defendant’s criminal
history failed to reflect the seriousness of his past criminal
conduct. The district court departed upward by three offense
levels and sentenced the defendant to a term of incarceration
of 96 months.
  Defendant, Scott Michael Barber, raises two issues on
appeal. The defendant asserts that the district court abused its
discretion by granting an upward departure. The defendant
also appeals the decision of the district court to depart upon
the offense level axis as opposed to the criminal history
category.
                               I.
  On November 11, 1997, defendant entered into a written
plea agreement which stated in paragraph 4:
10       United States v. Barber                            No. 98-1558         No. 98-1558                     United States v. Barber          3

   While the Government assumes that a departure from the                         The Defendant understands that, if the Court accepts his
defendant’s original offense level rather than criminal history                   plea of guilty, his sentence will be computed under the
category based on prior3criminal conduct was error, this Court                    United States Sentencing Guidelines. Further, the
is of a different view. The precise language of U.S.S.G.                          Defendant understands that the final determination
§4A1.3 encourages a district court to “consider imposing a                        concerning the calculation of his sentence will be made
sentence departing from the otherwise applicable guideline                        by the Court after its review of the facts and of any report
range.” This language does not limit a court to departing in                      prepared by the United States Probation Office. He also
the criminal history category alone and does not prohibit a                       understands that in certain situations, the Court may
court from using an increase in the offense level to                              depart from the Guidelines.
accomplish the same result. This is particularly true when the
district court articulated the fact that by increasing the offense              (Joint Appendix (“JX”), 18.)
level, it was reaching the same result as if it increased by two
levels the criminal history category. In this context, this                     The district court accepted defendant’s plea of guilty and
Court is of the view that to reverse a departure on such basis                  approved the terms and conditions of the plea agreement. The
would elevate form above substance.                                             presentence report thereafter completed details the
                                                                                defendant’s extensive criminal history beginning at age
                                                                                twelve and extending to the time of conviction in this case.

     3
                                                                                  The presentence report documents that the defendant was
       The Government also contends that the defendant did not object to        convicted of fifteen criminal offenses from 1984 through
the district court’s use of offense levels rather than criminal history         1996 including larceny, malicious destruction of property,
categories to depart and has, therefore, waived the right to raise this issue   breaking and entering, making a false bomb threat, receiving
on appeal, absent plain error or defects affecting substantial rights under
Federal Rule of Criminal Procedure 52(b). The district court granted the        and concealing stolen property, unlawful use of marijuana,
Government’s motion for an upward departure, which had expressly                carrying a concealed weapon, and resisting and obstructing a
requested an increase in the defendant’s criminal history category, rather      police officer. Based upon these convictions, the probation
than an increase in the offense level. While this Court finds no                officer concluded in the presentence investigation report that
procedural fault in the method used by the district court in imposing           the defendant’s prior convictions placed him in a criminal
sentence, it does note that this issue raised on appeal resulted from the       history category of IV. The defendant made no objection to
trial court’s use of the offense level axis as a basis for upward departure,
an issue not addressed in the Government’s motion. Because the                  the computation set forth in the presentence investigation
defendant and his counsel were advised of this aspect of the Court’s            report.
ruling at the time of sentencing, there is no requirement that the defendant
object following sentencing. Thus, failure to object after sentencing does        The probation officer included the following in the
not waive an opportunity to raise this issue on appeal. Unlike a                presentence investigation report:
circumstance in which a defendant has failed to object to one or more
provisions of a presentence investigation report, the conclusions reached
by the district court were not submitted in advance with an opportunity to        The Court may wish to consider the defendant’s
object prior to final sentencing. Under Federal Rule of Criminal                  extensive criminal record dating back to the age of 12, as
Procedure 32, all parties receive the presentence report and may make             a means of imposing an upward departure from the
objections in advance of sentencing. While the failure to object to a             applicable guideline range of imprisonment pursuant to
provision of a presentence investigation report waives appellate review of        U.S.S.G. §4A1.3. Mr. Barber has been convicted of a
any issues other than plain error, United States v. Koeberlein, 161 F.3d
946 (6th Cir. 1998), this issue involves a decision of the sentencing judge,      wide range of misdemeanor and felony offenses and it
rather than an adaptation of a provision of a presentence report.
4      United States v. Barber                     No. 98-1558      No. 98-1558                      United States v. Barber       9

    appears no measure of punishment has been able to deter            The fact that the defendant received two additional points
    him from committing crimes.                                     for committing the instant offense while on parole does not
                                                                    prohibit the district court from basing a departure on such
(JX 127.)                                                           circumstances. District courts may consider the length of the
                                                                    term of probation, the temporal proximity to the instant
  Prior to sentencing, the United States filed a motion for an      offense, and the basis for probation in the first instance. In
upward departure. Specifically, the Government contended            this case, the term of probation was for life, the instant
that the defendant’s criminal history category did not              offense occurred shortly after the imposition of probation, and
adequately reflect the seriousness of the defendant’s past          the underlying criminal offense leading to probation was
criminal conduct or the likelihood that he will commit other        serious. By way of example, a defendant may be serving a
crimes, as referenced in U.S.S.G. §4A1.3. The Government            four year term of probation for passing a series of bad checks.
further noted that the defendant received no points for his first   If a new conviction resulted in the fourth year of probation,
nine convictions due to the fact that he was a minor at the         this hypothetical defendant would receive the same points in
time the offenses were committed. Further, the defendant was        computing criminal history as the defendant in this case. To
on lifetime parole in the State of Alabama at the time the          insure that very dissimilarly situated defendants are not
offense of conviction occurred.            The Government           accorded the same criminal history points, the Sentencing
recommended an upward departure in the defendant’s                  Guidelines wisely encourage a district court to consider
criminal history category from a category IV to VI.                 whether the criminal history computation is truly reflective of
                                                                    a defendant’s past. For these reasons, this Court concludes
    At the sentencing hearing, the district court stated:           that the district court did not abuse its discretion in granting
                                                                    an upward departure under U.S.S.G. §4A1.3.
    I find that your Criminal History Category does not
    adequately reflect your past criminal behavior or the                                         III.
    likelihood that you will commit other crimes.
       ...                                                             The defendant asserts that the district court erred in
                                                                    departing three levels on the offense level axis, rather than the
    Putting aside the crimes that were committed when you           criminal history categories, when the stated reasons for
    were 12 years old, you have been committing crimes              departure had to do with prior or future criminal conduct.
    since you were 14 years old. You’ve been a person who           While the district court based its departure on the defendant’s
    will simply not obey the law.                                   criminal history, it increased the defendant’s offense level,
      ...                                                           rather than his criminal history category. The district court,
                                                                    however, was well aware that the increase in the offense level
    You were sentenced to life imprisonment in Alabama              which it imposed resulted in the identical sentencing range as
    and then released on lifetime parole. Yet, you went back        if the court had simply increased the defendant’s criminal
    and committed several crimes right after that upon your         history category by two levels, from IV to VI. The district
    release.                                                        court expressly stated in granting the Government’s motion
                                                                    for an upward departure that adding a three level increase in
(JX 86-87.) The district court summarized the defendant’s           the offense level resulted in the same sentencing range that
criminal history as “unrelenting unremitting lawlessness.”          would result by increasing the defendant’s criminal history
(JX 82.)                                                            category from IV to VI.
8        United States v. Barber                           No. 98-1558   No. 98-1558                           United States v. Barber           5

in a motor vehicle.2 Two years later, he was convicted of                  Based upon its findings that the defendant’s criminal
carrying a concealed weapon and resisting and obstructing a              history did not adequately represent his past criminal
police officer. One month later, the defendant was convicted             behavior, the district court granted the Government’s motion
of three counts of breaking and entering with intent to commit           for an upward departure and increased the offense level from
larceny.                                                                 21 to 24. The district court also explained that, “looked at
                                                                         another  way, it’s an increase in criminal history category to
   From this, the trial court concluded that the defendant had           VI.”1
been committing crimes since early in his youth and
continued to do so until the offense of conviction. The fact                                                II.
that he was released from prison in Alabama and placed on
lifetime parole had no deterrent effect on his future criminal             This Court reviews a district court’s decision to depart from
conduct.                                                                 the Sentencing Guidelines for abuse of discretion. This Court
                                                                         recently described the seminal decision in Koon v. United
  The defendant contends that the trial court improperly                 States, 518 U.S. 81 (1996), as follows:
relied upon nine juvenile criminal adjudications which, under
U.S.S.G. §4A1.2, resulted in no criminal history points.                   Because questions concerning sentencing departures
Further, the defendant contends that the district court should             necessarily address the district court’s “refined
not have considered an upward departure based on the fact                  assessment of the many facts bearing on the outcome,
that he was serving a term of lifetime parole in the State of              informed by its vantage point and day-to-day experience
Alabama, since the defendant received two additional points                in criminal sentencing,” we normally accord substantial
for committing the instant offense while on parole. The                    deference to the district court’s judgment on the matter.
defendant contends that since these factors were already taken             Nevertheless, “the deference that is due depends on the
into account by the Guidelines, such circumstance could not                nature of the question presented.” When the question is
provide a proper basis for departure.                                      “whether a factor is a permissible basis for departure . . .
                                                                           the courts of appeals need not defer to the district court’s
  These arguments ignore the fact that U.S.S.G. §4A1.3                     resolution of the point.”
explicitly contemplates and encourages a district court to
consider a defendant’s likelihood of recidivism together with            United States v. Pluta, 144 F.3d 968, 977 (6th Cir.
a more particularized consideration of the defendant’s past.             1998)(quoting Koon, 518 U.S. at 98, 100)(internal citations
Further, U.S.S.G. §4A1.3 authorizes the Court to consider, in            omitted)).
addition to prior conviction, in the computation of criminal
history, “prior sentence(s) not used in computing the criminal             As the Sentencing Reform Act of 1984, 18 U.S.C. §3551,
history category.” Other circuits have held that while juvenile          together with the implementing Sentencing Guidelines make
offenses may not be counted in computing criminal history,               clear, a district court must sentence within the Guidelines
such offenses may nonetheless be considered as part of a                 range “unless the Court finds that there exists an aggravating
recidivism inquiry. See United States v. Croom, 50 F.3d 433,             or mitigating circumstance of a kind, or to a degree, not
435 (7th Cir. 1995).
                                                                             1
                                                                               Had the district court increased the defendant’s criminal history
    2                                                                    from IV to VI, rather than increasing the offense level from 21 to 24, the
        The charge of fleeing a police officer was dismissed.            resulting guideline range would be the same, that being 77 to 96 months.
6      United States v. Barber                     No. 98-1558     No. 98-1558                      United States v. Barber       7

adequately taken into consideration by the Sentencing              adequately reflect the seriousness of the defendant’s past
Commission in formulating the Guidelines that should result        criminal conduct or the likelihood that the defendant will
in a sentence different from that prescribed.” 18 U.S.C.           commit other crimes, the court may consider imposing a
§3553(b); see also U.S.S.G. Ch. 1, Pt. A4(b). As the               sentence departing from the otherwise applicable guideline
Supreme Court explained in Koon, a sentencing court                range.” The district court expressly cited this provision of the
considering a departure should address the following               Guidelines and found that the defendant’s completed criminal
questions:                                                         history neither adequately reflected the seriousness of his past
                                                                   criminal conduct nor did it indicate the likelihood that he
    1) What features of this case, potentially, take it outside    would commit other crimes.
    the Guidelines’ “heartland” and make of it a special, or
    unusual case?                                                     Given the formulation set forth in U.S.S.G. §4A1.3, it is
    2) Has the Commission forbidden departures based on            clear that the Sentencing Guidelines do not prohibit
    those features?                                                departures based upon a finding that the criminal history
    3) If not, has the Commission encouraged departures            computation is simply not representative of a defendant’s past
    based on those features?                                       criminal behavior nor indicative of future unlawful conduct.
    4) If not, has the Commission discouraged departures            As this Court concluded in United States v. Pluta, 144 F.3d
    based on those features?                                       at 877, a departure upon this basis is expressly encouraged by
                                                                   the Sentencing Guidelines.
Koon, 518 U.S. at 95(quoting United States v. Rivera, 994
F.2d 942, 949 (1st Cir. 1993)). While the order of these             Because the basis for the departure by the sentencing court
questions guides the district court, for this Court to determine   was an encouraged factor under the Guidelines, we review the
the appropriate standard of review, the analysis must initially    decision of the trial court to depart for an abuse of discretion.
address whether the basis for departure is prohibited,             United States v. Bond, 171 F.3d 1047 (6th Cir. 1999); United
encouraged, or discouraged by the Sentencing Guidelines.           States v. Koeberlein, 161 F.3d 946 (6th Cir. 1998). As noted
                                                                   by the Supreme Court, “[a] district court’s decision to depart
  If the district court has departed from the Sentencing           from the Guidelines . . . will in most cases be due substantial
Guidelines based upon a prohibited factor (such as a               deference, for it embodies the traditional exercise of
defendant’s race, sex, national origin, creed, religion, or        discretion by a sentencing court.” Koon, 518 U.S. at 98.
socio-economic status, factors prohibited by U.S.S.G.
§5H1.10) this Court’s analysis is complete and the sentence           The sentencing court based its decision to grant an upward
must be reversed. Much more likely, if the Sentencing              departure on an abundance of prior criminal conduct
Guidelines have not prohibited departures based on what the        committed by the defendant. At the time of sentencing, the
district court has determined to be one or more unusual            defendant was 26 years old. Prior to sentencing, he had been
aspects of the case, this Court must then consider whether the     sentenced to life imprisonment in Alabama and was released
basis for the departure is encouraged or discouraged by the        on February 14, 1994 on lifetime parole. Only a few months
Sentencing Guidelines.                                             later, on May 17, 1994, he was charged with driving with a
                                                                   suspended license, fleeing a police officer and having alcohol
  The motion filed by the Government seeking an upward
departure made specific reference to U.S.S.G. §4A1.3 which
states that if “[t]he criminal history category does not
