                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                           SEP 4 2002
                   UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                              Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

            Plaintiff - Appellee,
                                                        No. 01-6375
 v.                                                (D.C. No. 01-CR-80-T)
                                                        (W.D. Okla.)
 DAVID DEWAYNE SHORES,

            Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before EBEL, LUCERO, and HARTZ, Circuit Judges.



      In this direct criminal appeal, David Dewayne Shores argues that the

district court erred in departing from the sentencing range recommended by the

Sentencing Guidelines Manual. We have jurisdiction pursuant to 18 U.S.C.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
§ 3742(a)(2) and 28 U.S.C. § 1291. Because we conclude that the district court

did not abuse its discretion, we affirm.

                                            I

      In February, March, and April of 2001, Shores committed five unarmed

bank robberies in Oklahoma City, Oklahoma. In each instance, Shores would

enter the bank, approach the teller, and demand money while suggesting that he

had a gun. He was arrested in early April 2001 and indicted for unarmed robbery

of five federally insured banks in violation of 18 U.S.C. § 2113(a). Shores

waived his right to a jury trial and pled guilty to all five counts of the indictment.

He did not enter into a plea agreement and retains all statutory rights of appeal.

The district court sentenced him to 188 months’ imprisonment.

      To arrive at its sentence, the court departed upward from criminal history

category VI, offense level 26, to criminal history category VI, offense level 29,

reasoning that the guidelines computation did not adequately reflect the

seriousness of Shores’s past criminal conduct and that an upward departure was

necessary. Specifically, the court decided that a number of prior convictions—for

burglary, possession of marijuana, possession of barbiturates, unlawful delivery

of a controlled drug, unlawful distribution of a controlled substance, larceny of a

controlled dangerous substance, assault and battery with a dangerous weapon, and

endangering a child—that were not considered in the criminal history computation


                                           -2-
merited the upward departure. Without the upward departure, Shores’s guideline

range would have been 120 to 150 months. Shores objected to this exercise of the

district court’s discretion and on appeal seeks to have the upward departure

reversed.

                                         II

      Under the sentencing guidelines, “stale” prior sentences are ordinarily

excluded from calculation of a defendant’s criminal history category. See

U.S.S.G. § 4A1.2(e)(1), (3) (excluding from the calculation of a defendant’s

criminal history category all sentences exceeding thirteen months if those

sentences were not imposed within fifteen years of the commencement of the

instant offense); id. § 4A1.2(e)(2), (3) (excluding from the calculation any other

prior sentence that was not imposed within ten years of the instant offense).

However, the guidelines specifically contemplate upward departure from an

otherwise applicable guideline range “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.” U.S.S.G. § 4A1.3. A factor relevant for upward departure is the

existence of “prior sentence(s) not used in computing the criminal history

category.” Id. § 4A1.3(a); see also id. § 4A1.2, cmt. n.8 (“If the court finds that a

sentence imposed outside this time period is evidence of similar, or serious



                                        -3-
dissimilar, criminal conduct, the court may consider this information in

determining whether an upward departure is warranted under § 4A1.3 (Adequacy

of Criminal History Category).”).

      To determine whether the district court abused its discretion in departing

from the guidelines, we 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.

United States v. Collins, 122 F.3d 1297, 1303 (10th Cir. 1997). Although we

need not defer to the district court’s resolution of the first question because it is

primarily a legal issue, all four steps of this departure-review analysis are subject

to a “unitary abuse of discretion standard.” Id.

      Whether a factual circumstance supporting a departure is a permissible

departure factor is a legal question, and we need not defer to the district court on

this point. Koon v. United States, 518 U.S. 81, 100 (1996); Collins, 122 F.3d at

1303. The guidelines specifically encourage departure where a defendant’s

criminal history category does not adequately reflect the seriousness of his past

conduct or the likelihood that the defendant will commit other crimes. U.S.S.G.

§ 4A1.3. We have held that reliance upon the enumerated departure factors of



                                          -4-
§ 4A1.3 is permissible. United States v. Bartsma, 198 F.3d 1191, 1196 (10th Cir.

1999) (holding that a set of stale prior sentences is a permissible departure

factor). Thus, the district court’s decision to depart was based upon permissible

factors.

      We must give “substantial deference” to the district court’s resolution of

the second question—whether the departure factors it relied upon remove the

defendant from the applicable guideline’s heartland under the facts of the case.

Collins, 122 F.3d at 1303. Applicable guidelines state that “[t]he court may . . .

conclude that the defendant’s criminal history was significantly more serious than

that of most defendants in the same criminal history category.” U.S.S.G. § 4A1.3.

Given Shores’s multiple uncounted convictions for a range of serious conduct

including two crimes of violence, we conclude that the district court has not

exceeded the bounds of permissible choice in finding that Shores’s criminal

history category does not adequately reflect the seriousness of his past criminal

conduct or the likelihood that he will commit other crimes.

      Whether the record sufficiently supports the factual basis underlying the

departure is a question we review for clear error. See United States v.

Maldonado-Campos, 920 F.2d 714, 720 (10th Cir. 1990); see also United States v.

Talk, 158 F.3d 1064, 1071 (10th Cir. 1998) (noting that the clear-error standard

articulated in Maldonado-Campos is unaltered by Koon). Shores did not contest



                                         -5-
the facts of his prior convictions at his sentencing hearing. Thus, it was not clear

error for the district court to rely on them. See United States v. Yates, 22 F.3d

981, 989 (10th Cir. 1994) (noting that only facts that are contested during the

sentencing hearing must be established by a preponderance of the evidence).

      In making a determination as to the final question, whether the degree of

departure is reasonable,

      we consider the district court’s reasons for imposing the particular
      sentence together with factors such as: “the seriousness of the
      offense, the need for just punishment, deterrence, protection of the
      public, correctional treatment, the sentencing pattern of the
      Guidelines, the policy statements contained in the Guidelines, and the
      need to avoid unwarranted sentencing disparities.”

Collins, 122 F.3d at 1308–09 (quoting United States v. White, 893 F.2d 276, 278

(10th Cir. 1990)). In calibrating the degree of departure, a district court must

provide an explanation that does more than “restate the justification for the

upward departure.” United States v. Whiteskunk, 162 F.3d 1244, 1254 (10th Cir.

1998). Rather, it must employ a “reasonable methodology hitched to the

sentencing Guidelines, including extrapolation from or analogy to the

Guidelines.” Collins, 122 F.3d at 1309 (quotations omitted). The district court

noted that Shores would have eleven additional criminal history points if the stale

convictions were countable. It reasoned that given Shores’s time-barred career-

offender qualifying felony convictions, the career-offender sentencing guidelines

more adequately reflected an appropriate offense level. The court also noted the

                                         -6-
gravity of Shores’s criminal conduct as well as the need to deter others and

prevent criminal victimization. Thus, in arriving at the sentence, the district court

took account of the sentencing pattern and policies of the guidelines and reached

a reasonable determination in light of the factual circumstances presented to it.

We conclude that the district court’s rationale and conclusions were reasonable.

                                         III

      Shores’s sentence is AFFIRMED.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




                                         -7-
