                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-2004

USA v. Patterson
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2402




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                                                                NOT PRECEDENTIAL

                    THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 03-2402
                                      ___________


                           UNITED STATES OF AMERICA,

                                            v.

                                 LARRY PATTERSON,

                                                       Appellant.
                                      ___________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                D.C. No. 02-cr-00203-3
                    District Judge: The Honorable Edwin M. Kosik
                                      _________


                Submitted May 7, 2004 Under Third Circuit LAR 34.1(a)

  BEFORE: SLOVITER and FUENTES, Circuit Judges, and POLLAK,* District Judge

                                  (Filed May 14, 2004)
                                      ___________

                              OPINION OF THE COURT
                                   ____________
POLLAK, District Judge:




 *Honorable Louis H. Pollak, District Judge for the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
       Larry Patterson appeals from the District Court’s judgment of sentence entered on

May 5, 2003. In particular, Patterson challenges the District Court’s three-level upward

departure made pursuant to U. S. Sentencing Guidelines Manual § 4A1.3 (2002), 1 which

was based on his considerable criminal history and what the District Court termed

appellant’s “propensity to recidivate.” We have jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a) and (e).

                                             I.

       On August 27, 2002, Patterson was named in counts 1 and 4 of a four-count

indictment returned by a federal grand jury sitting in the Middle District of Pennsylvania.

Count 1 charged that “[b]eginning on or about January 28, 2002, and continuing until on

or about August 16, 2002,” Patterson and two co-defendants conspired to “make, utter

and possess counterfeited securities of the American Express Company . . .” in violation

of 18 U.S.C. § 371. App. at 15A-16A. Count 4 charged that “[o]n or about August 12,

2002,” Patterson “utter[ed] and possess[ed] a counterfeited security of the American

Express Company . . .” in violation of 18 U.S.C. § 513.

       On February 20, 2003, pursuant to a plea agreement, Patterson pled guilty to count

4 of the indictment. Patterson’s presentence investigation report (PSR) revealed that he

had 93 arrests resulting in 67 convictions, largely for a variety of nonviolent crimes such




       1
       The 2002 edition of the United States Sentencing Commission Guidelines
Manual was used to calculate Patterson’s Offense Level and Criminal History Points.

                                             2
as larceny and forgery. The great majority of the convictions did not enter into the

calculation of Patterson’s criminal history points because they reflected offenses

occurring prior to the time periods established by the Sentencing Guidelines covering

offense conduct which is to be “counted” in calculating a defendant’s criminal history.2

Patterson’s countable criminal history netted a total of 22 criminal history points and a

criminal history category of VI. The court accepted a stipulation between the parties that

the amount of loss resulted in Patterson’s total offense level of 10, producing a guideline

range of 24-30 months imprisonment. The court then granted the government’s motion

for a two-level downward departure warranted by Patterson’s substantial assistance,

resulting in a guideline range of 18-24 months. Finally, the court departed upward by

three levels, pursuant to the probation office’s recommendation based on the extent of

Patterson’s prior record. Patterson’s resulting guideline range was 27-33 months. The

court sentenced Patterson to 30 months imprisonment, followed by three years of

       2
        U.S.S.G. § 4A1.2(e) provides, in pertinent part, that:
       (1) Any prior sentence of imprisonment exceeding one year and one month
       that was imposed within fifteen years of the defendant’s commencement of
       the instant offense is counted. Also count any prior sentence of
       imprisonment exceeding one year and one month, whenever imposed, that
       resulted in the defendant being incarcerated during any part of such fifteen-
       year period.
       (2) Any other prior sentence that was imposed within ten years of the
       defendant’s commencement of the instant offense is counted.
       (3) Any prior sentence not within the time periods specified above is not
       counted.
       ....

U.S.S.G. § 4A1.2(e).

                                             3
supervised release. The court explained the upward departure in its statement of reasons:

       The Court finds that pursuant to U.S.S.G. § 4A1.3, an upward departure is
       warranted because the defendant’s criminal history category significantly
       under-represents the defendant’s past criminal conduct and inadequately
       captures his propensity to recidivate. Larry Patterson has 93 arrests resulting
       in 67 criminal convictions and 22 criminal history points. He did not
       receive criminal history points for 56 of the convictions. The vast majority
       of his arrests have been for conduct similar to the instant federal offense
       which involved the passing of fraudulent American Express checks and
       money orders. The Court further finds that an upward incremental increase
       of one offense level for each additional three criminal history points
       exceeding 15 is appropriate. This results in the addition of three offense
       levels and a guideline custody range of 27 to 33 months.3


Patterson now challenges the District Court’s decision granting an upward departure.

                                             II.




       3
          In adding “three offense levels” on the basis of its finding that “an upward
incremental increase of one offense level for each additional three criminal history points
exceeding 15 is appropriate,” the District Court would appear to have been proceeding on
the understanding that Patterson’s criminal history points came to 24 (15 + 9). But the
District Court actually found that Patterson’s criminal history points totaled 22 (not 24).
It is our supposition that the explanation for this arithmetic discrepancy (a discrepancy not
addressed in either party’s brief on appeal) is that the District Court meant to use 13, not
15, as the criminal history base-point above which the court would add one offense level
for “each additional three criminal history points.” We suggest that 13 was the intended
number, and 15 a typographical error, because Criminal History Category VI of the
Guidelines Sentencing Table encompasses all those who have “13 or more” criminal
history points. In short, 13 is a significant number for purposes of applying the
Sentencing Table, while 15 is not. If 13 was the number the District Court intended as its
base-point, then Patterson’s total of 22 criminal history points would have been 9 in
excess of that base-point, triggering the three-level increase in offense level which the
District Court thought appropriate.
        If either of the parties thinks the foregoing supposition is unfounded, application
may be made to the District Court to resolve the issue.

                                             4
       The Supreme Court’s decision in Koon v. United States, 518 U.S. 81, 91, 96-100

(1996) directed courts of appeals to review a district court’s departure decision for abuse

of discretion. The government contends, however, that Koon’s abuse-of-discretion

review has been replaced by de novo review by virtue of the subsequently enacted

“PROTECT Act” amending 18 U.S.C. § 3742(e). For purposes of this appeal, we need

not decide which standard of review applies, because we would affirm the upward

departure under either standard.

       Section 4A1.3 of the Sentencing Guidelines provides, in pertinent part, that:

       If reliable information indicates that the defendant's 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.
       ....
       The Commission contemplates that there may, on occasion, be a case of an
       egregious, serious criminal record in which even the guideline range for
       Criminal History Category VI is not adequate to reflect the seriousness of
       the defendant's criminal history. In such a case, a departure above the
       guideline range for a defendant with Criminal History Category VI may be
       warranted. In determining whether an upward departure from Criminal
       History Category VI is warranted, the court should consider that the nature
       of the prior offenses rather than simply their number is often more
       indicative of the seriousness of the defendant's criminal record. For
       example, a defendant with five prior sentences for very large-scale fraud
       offenses may have 15 criminal history points, within the range of points
       typical for Criminal History Category VI, yet have a substantially more
       serious criminal history overall because of the nature of the prior offenses.
       On the other hand, a defendant with nine prior 60-day jail sentences for
       offenses such as petty larceny, prostitution, or possession of gambling slips
       has a higher number of criminal history points (18 points) than the typical
       Criminal History Category VI defendant, but not necessarily a more serious
       criminal history overall. Where the court determines that the extent and

                                             5
       nature of the defendant's criminal history, taken together, are sufficient to
       warrant an upward departure from Criminal History Category VI, the court
       should structure the departure by moving incrementally down the
       sentencing table to the next higher offense level in Criminal History
       Category VI until it finds a guideline range appropriate to the case.
       ....
       Background: This policy statement recognizes that the criminal history
       score is unlikely to take into account all the variations in the seriousness of
       criminal history that may occur. 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.
       This policy statement authorizes the consideration of a departure from the
       guidelines in the limited circumstances where reliable information indicates
       that the criminal history category does not adequately reflect the
       seriousness of the defendant's criminal history or likelihood of recidivism,
       and provides guidance for the consideration of such departures.


U.S.S.G. § 4A1.3 (emphasis in original).

       The District Court, in determining that an upward departure was warranted,

properly applied the principles announced in § 4A1.3. See United States v. Shoupe, 988

F.2d 440, 445-46 (3d Cir. 1993) (describing guidance provided by § 4A1.3 to a district

court’s departure decision). Patterson’s argument to the contrary is without merit. As the

District Court aptly pointed out, Patterson’s “criminal history category significantly

under-represents [his] past criminal conduct and inadequately captures his propensity to

recidivate.” Patterson’s numerous early convictions for larceny and forgery– convictions


                                              6
not “counted” in calculating his criminal history 4 – presaged the forgery offenses that

predominate in his “counted” criminal history. And the crime whose sentence is here at

issue– “uttering and possessing a counterfeited security”– is but a further chapter in a

more-than-twenty-years record of criminal deceit. The District Court’s three-level

upward departure was warranted. The judgment of the District Court will be affirmed.




       4
           See text, supra, at footnote 2.
