                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 15 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 97-1091
                                                  (D.C. No. 96-CR-322-S)
 DONALD JOHN RILEY,                                      (D. Colo.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and KELLY, Circuit Judges.


      Donald John Riley (“Riley”) appeals the district court’s upward departure

in sentencing him for firearm theft. We affirm in part, but vacate the sentence

and remand for re-sentencing.

                                    BACKGROUND

      Under Federal Rule of Criminal Procedure 11(e)(1)(C), Riley entered a plea

of guilty to a one-count indictment of stealing three handguns from the EZ Pawn



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
Store in Colorado Springs, Colorado, a federally licensed firearms dealer, in

violation of 18 U.S.C. § 922(u). (     R. I, Docs. 1 & 5 ). The plea agreement

provided for a 30-month sentence based on a sentencing range of 24 to 30

months, reflecting a “tentative” Criminal History Category IV        1
                                                                         and an adjusted

offense level of 13 under the United States Sentencing Guidelines (the

“Guidelines”).   2
                     ( R. I, Doc. 5 ). The district court reserved ruling on its

acceptance of Riley’s guilty plea until after it had an opportunity to review the

Presentence Investigation Report (the “PSR”). (        Supp. R. II at 6-7 ).

      The PSR recommended an adjusted offense level of 13. (              PSR at 6 ).

However, the PSR concluded that Riley’s extensive criminal record placed him in

Criminal History Category VI, not Category IV, resulting in a sentencing range of

33 to 41 months under the Guidelines. (       PSR at 40 ). The PSR allotted Riley 17

criminal history points for his prior convictions on the following charges: open

or gross lewdness, a Driving Under the Influence conviction, possession of less




      1
         The plea agreement acknowledged that the district court might determine
that Riley’s Criminal History Category should be VI, in which case he could be
sentenced up to 41 months.
      2
         The offense level of 13 reflected a base offense level of 14 under
§ 2K2.1(b) of the Guidelines for a violation of 18 U.S.C. § 922(u), a one-level
increase in the base offense level under § 2K2.1(b)(1)(A) because Rile stole three
handguns, and a two-level downward adjustment for acceptance of responsibility
under § 3E1.1(a).

                                             -2-
than eight ounces of marijuana, harassment, shoplifting, and seven convictions of

indecent exposure. ( PSR at 7-32 ).

      Because of the limits prescribed in § 4A1.1(c) of the Guidelines, Riley did

not receive any criminal history points for the following additional prior criminal

conduct: a deferred judgment for indecent exposure; two Driving While Ability

Impaired convictions; criminal trespass; permitting an unauthorized person to

drive a vehicle; indecent exposure; harassment; public indecency; trespassing;

providing false information; third degree assault; and two counts of shoplifting.

(PSR at 7-32 ). In addition, no points were allotted for pending charges against

Riley on two counts of felony possession of marijuana and methamphetamine;

pending charges on two counts of felony theft of goods valued at less than

$15,000; and charges dropped in exchange for a guilty plea on counts of

possession/sale of a controlled substance, habitual offender driving on revoked

license, aggravated car theft, criminal impersonation, possession of controlled

substance paraphernalia, and indecent exposure. (   PSR at 7-32 ).

      Had the PSR included these various non-counted criminal charges, Riley

would have had 29 criminal history points (   PSR at 32 ), more than twice the

minimum number of 13 required to be placed in Category VI, the highest possible

Criminal History Category. Because of Riley’s extensive criminal history, the

PSR stated that if the district court “finds that the defendant’s criminal history


                                          -3-
significantly understates the . . . likelihood that he will reoffend, then the Court

could consider an upward departure.” (   PSR at 45 ). Riley did not object to the

PSR other than to correct one misstatement about his record, which the court

accepted. ( R. II at 3 ).

       At the sentencing hearing, the parties requested a modification of the plea

agreement to require a 33 month term of imprisonment, the minimum sentence for

offense level 13 and Criminal History Category VI. (    R. II at 4 & 10 ). The

district court agreed with the PSR’s recommendations of an offense level of 13

and Criminal History Category VI, but considered a 33 month sentence

insufficient. ( R. II at 16 & 21 ). Among other things, the district court noted that

Riley had pled guilty to four felonies in state court and that sentencing on those

state offenses had been “conveniently deferred” until after sentencing in this

federal case, and the court was advised that an agreement had been reached in the

state cases providing that any sentence Riley received probably would run

concurrent to any federal sentence. The district court commented on Riley’s

extensive criminal history, including the crimes and charges for which criminal

history points were not assessed, stating:

       This man is a walking crime wave. I think it’s absolutely obvious that this
       young man will, whenever he is released to society, will [sic] commit other
       crimes. There isn’t a likelihood; there’s a substantial likelihood that he
       will continue to commit crimes, if not a practical sur[e]ty.



                                          -4-
(R. II at 20 ). As a result, the district court placed Riley in Criminal History

Category VI and then made an upward departure by increasing Riley’s offense

level to level 15 under § 4A1.3 of the Guidelines and imposed the maximum

sentence of 51-months of imprisonment. (      R. II at 22 ). Despite being given an

opportunity to do so, Riley chose not to withdraw his plea. (   R. II at 25 ). He now

appeals the district court’s departure.

                                     DISCUSSION

      Riley contends that the district court erred both by upwardly departing in

his sentence and by failing to give him proper notice of its intent to upwardly

depart. 3 We address each argument in turn.

                                I. Upward Departure

      Riley argues that the district court erred by upwardly departing because his

record, although extensive, does not reflect a history of serious crime. We review

a district court’s decision to depart from the Guidelines under a “unitary” abuse of




      3
         In a prior order, this court directed the district court to supplement the
record on appeal with the transcript of the change of plea hearing and the
certificate of delivery of the PSR. The United States has moved to supplement
the record on appeal by including a January 29, 1997, letter from the Probation
Office transmitting the addendum to the PSR. However, because the January 29,
1997, letter is attached to the PSR addendum submitted by the district court in
compliance with this court’s prior order, the letter is already part of the appellate
record, and thus the motion by the United States is moot.

                                           -5-
discretion standard.   See Koon v. United States , 518 U.S. 81, 99-100 (1996);

United States v. Collins , 122 F.3d 1297, 1302 (10th Cir. 1997).   4



       [I]n determining whether the district court abused its discretion in
       departing from the Guidelines, appellate courts after Koon must
       evaluate: (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.

Collins , 122 F.3d at 1303.

       Riley first argues that the district court’s reasons for upwardly departing are

not permissible departure factors. He contends that his criminal activities were not

“serious” and thus do not support a departure under § 4A1.3, which 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;



       4
          The United States suggests that we should review this question only for
plain error because Riley failed to object below. However, the transcript of the
sentencing hearing shows that Riley specifically preserved his right to appeal the
district court’s upward departure. ( R. II at 25-26 ).

                                          -6-
       (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.

(emphasis added). Thus, a departure is warranted either if the criminal history

understates the seriousness of the defendant’s crimes or if the criminal history

understates the likelihood that the defendant will commit future crimes. Here, the

district court expressly decided to upwardly depart under § 4A1.3 after finding a

substantial likelihood, “if not a practical sur[e]ty,” of recidivism, and that finding

is amply supported by the record. (    R. II at 20 ). Such a factor is a permissible

basis to support an upward departure under the Guidelines.

       Second, Riley claims that his criminal history does not remove him from the

heartland of Guideline cases under Criminal History Category VI. To the contrary,

the district court noted that this was the longest and most involved criminal history

the probation officer had seen in eight years on the job. (   R. II at 7 ). We believe

that the district court properly found that Riley was outside the heartland of cases.

       Finally, Riley contends that the degree of the departure was unreasonable

and that the district court abused its discretion by failing to explain on the record

why it chose a two-level departure. We agree that the district court failed to

explain the reason for the degree of departure, and accordingly we cannot evaluate

properly on this record the reasonableness of the degree of departure.



                                            -7-
       [I]n departing from the applicable guideline range, a district court must
       specifically articulate reasons for the degree of departure. The district court
       may use any reasonable methodology hitched to the Sentencing Guidelines
       to justify the reasonableness of the departure, which includes using
       extrapolation from or analogy to the Guidelines.

Collins , 122 F.3d at 1309 (internal quotations and citations omitted). Here, the

district court did not state specifically why it decided that Riley’s likelihood of

committing future crimes warranted a two-level as opposed to a one-level or any

greater level of departure. In addition, although the PSR suggested an upward

departure, the PSR neither indicated a recommended departure level nor contained

reasons for adopting any particular departure. Thus, the district court could not

have relied on the PSR to justify the degree of the departure. The district court

only stated that it did not consider eight months (the difference between the 33

months the parties agreed on at sentencing and the 41 months at the top of the

range) to be sufficient.   (R. II at 21-22). An offense level of 14 would have

produced a sentencing range of 37 to 46 months, while the sentencing range under

offense level 15 in Criminal History Category VI is 41 to 51 months. We do not

know why the district court considered the eight-month difference between 33 and

41 months to be insufficient or why the district court believed that a 51-month

sentence sufficed. As a result, the district court erred by failing to offer a detailed

explanation of its reasoning.

                                       II. Notice


                                           -8-
       Riley contends that the district court erred in not giving him prior notice of

its intent to upwardly depart.      See Burns v. United States , 501 U.S. 129, 135

(1991) (requiring notice of an intent to depart upward). Because Riley did not raise

this issue below, it is reviewable only for plain error.    See Johnson v. United

States , 520 U.S. 461, ___, 117 S. Ct. 1544, 1548 (1997). Under the plain error

test, there must be (1) an error (2) that is plain (3) that affects substantial rights

and (4) and that seriously affects the “fairness, integrity, or public reputation of

the judicial proceedings.”       Id. at 1548-49. We conclude that even if Riley did not

receive proper notice, no fundamental miscarriage of justice occurred that requires

us to remedy such error. After announcing its decision to upwardly depart at the

sentencing hearing, the district court offered Riley the opportunity to withdraw his

guilty plea, which he declined. (     R. II at 25-26 ). He also refused the district

court’s offer to arrange for additional time for him to consider his position. (       R. II

at 25-26 ). Consequently, to the extent that Riley was deprived of an opportunity to

argue against the departure, the district court offered to remedy that deprivation by

allowing him to withdraw his plea or receive a continuance. Thus, any failure to

provide notice did not constitute to plain error.

                                       CONCLUSION




                                              -9-
      For the reasons discussed above, we AFFIRM the district court’s decision to

upwardly depart, but REMAND so that the district court can articulate the reasons

for the degree of the upward departure selected.


                                      ENTERED FOR THE COURT


                                      David M. Ebel
                                      Circuit Judge




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