UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5853

RAYMOND THOMAS OECHSLE, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-94-57)

Argued: September 24, 1996

Decided: November 12, 1996

Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.

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COUNSEL

ARGUED: George Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. John S. Bowler, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: Janice McKenzie Cole, United States Attorney, J. Frank
Bradsher, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Raymond T. Oechsle appeals his conviction of assault
with intent to commit murder for his attack on a fellow inmate at the
mental health unit of FCI-Butner facility on February 23, 1994. For
the reasons that follow, we affirm Oechsle's conviction, but remand
for resentencing consistent with our opinion in United States v.
Rusher, 966 F.2d 868, 884 (4th Cir. 1992), cert. denied, 506 U.S. 926
(1992), which requires the court, when departing upward from the
sentencing guidelines, to address sequentially each lower guideline
category before sentencing a defendant at a higher category.

Oechsle's presentence report calculated Oechsle's offense level for
his assault on Miller to be 34, and Oechsle's criminal history category
to be III. This resulted in a sentence range of 188-235 months under
the Federal Sentencing Guidelines. At Oechsle's sentencing hearing,
the government requested an upward departure of sixty months, argu-
ing that Oechsle's criminal history category underrepresented his
actual criminal history and did not reflect his true propensity towards
violence and his dangerousness to society. In arguing for the upward
departure, the government presented evidence that Oechsle had com-
mitted three prior brutal assaults that were not taken into account by
the presentence report. After receiving this evidence, the district court
departed upward, sentencing Oechsle to 415 months in prison, almost
the maximum sentence authorized under law. The only explanation
given by the court for its departure was the following: "[t]he court
finds that [Oechsle's] criminal history is inadequately represented by
his criminal history score, and that his propensity towards violence
and dangerousness to the community in which he resides is out-
weighed [sic] by his criminal history score." J.A. at 24.

In United States v. Rusher, we held that "a general recitation that
the defendant's criminal history category or offense level underrepre-

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sents, in the sentencing court's opinion, the defendant's criminal
record of the seriousness of the offense" is insufficient to justify an
upward departure from the sentencing guidelines. See 966 F.2d at 863
(quoting United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989)).
We held that the district court must sequentially address each sentenc-
ing category, "refer[ring] first to the next higher [criminal history]
category" and moving on "to a still higher category only upon a find-
ing that the next higher category fails adequately to reflect the seri-
ousness of the defendant's record." Rusher , 966 F.2d at 884.

Here, the sentence imposed by the district court was higher than
that allowed by criminal history category VI, which is three catego-
ries higher than Oechsle's presentencing report criminal history cate-
gory of III. The district court therefore was required to consider in
turn criminal history categories IV, V, and VI and to explain why
none of these categories adequately represented Oechsle's criminal
history. Additionally, when departing above criminal history category
VI, the guidelines require the court to "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 guide-
line range appropriate to the case." U.S.S.G.§ 4A1.3, p.s.

Because failure to follow the procedures outlined in Rusher consti-
tutes reversible error, see United States v. Harrison, 58 F.3d 115 (4th
Cir. 1995), we remand to the district court for resentencing. In doing
so, we do not intend to suggest that the ultimate sentence imposed
upon Oechsle is unwarranted or unjustifiable. The purpose of the
remand is only to ensure that we have an explanation of the district
court's sentencing decision adequate to permit meaningful appellate
review.

We have examined Oechsle's remaining claims on appeal and find
them to be meritless. Oechsle claims that the district court committed
reversible error by failing to give the jury a self-defense instruction.
Because Oechsle did not present evidence at trial from which a rea-
sonable jury could find that Oechsle assaulted Miller in self-defense,
we conclude that the district court did not so err. The only evidence
supporting a claim of self-defense at trial was Oechsle's self-serving
testimony that he feared he was in danger of being sexually assaulted
by Miller. Even assuming Oechsle held such a belief, such a belief

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would not have necessitated a self-defense instruction on the facts of
this case. The uncontroverted evidence showed that the assault
occurred in the prison laundry room to which Oechsle had voluntarily
accompanied Miller. At the time of the assault, Oechsle stood
between Miller and the exit to the laundry room, and Miller's back
was to Oechsle. Miller weighed 130 lbs.; Oechsle weighed 185 lbs.
Miller had no visible weapon; Oechsle was armed with two shanks.
Oechsle stabbed Miller twenty-two times with those shanks, while
Miller offered no resistance and tried to escape. At one point, Miller
escaped from Oechsle and managed to crawl into the hallway looking
for help. Once in the hallway, Miller again ran into Oechsle who was
fleeing the scene of the crime, and Oechsle again proceeded to stab
Miller. Given these uncontroverted facts, no reasonable jury could
find that Oechsle had a viable self-defense claim; hence no self-
defense instruction was required.

Oechsle also objects to the admission of evidence at trial relating
to one of his prior stabbing assaults. Oechsle at one point testified that
nothing similar to his laundry room encounter with Miller had ever
occurred. In rebuttal, the district court allowed the government to
present evidence that Oechsle had stabbed a man in a park in Septem-
ber of 1993. Rule 404(b) of the Federal Rules of Evidence excepts
from its prohibition on the admission of evidence of prior bad acts,
evidence introduced to show "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or acci-
dent." F.R.E. 404(b). Here, the evidence of Oechsle's prior stabbing
was sufficiently similar in nature to his stabbing of Miller that it
tended to prove his criminal intent. In both stabbings there were alle-
gations, inter alia, of perceived homosexual overtures from the vic-
tim, followed by a facade of compliance from Oechsle, who then
stabbed his victim in the back once the victim's guard was down.
Under these circumstances the trial judge did not abuse its discretion
in admitting the evidence of the prior stabbing.

Oechsle also contends that the district court sentenced him above
the recommended guidelines solely because of an outburst by Oechsle
in the courtroom during the sentencing hearing. Because we herein
remand for a fuller explanation of the district court's sentencing deci-
sion, we need not, and do not address, this claim.

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For the reasons stated herein, the case is remanded to the district
court for resentencing.

AFFIRMED IN PART AND
VACATED AND REMANDED IN PART

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