                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 6 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 02-3236
 v.                                             D.C. No. 01-CR-20073-01-CM
                                                         (D. Kansas)
 ROBERT UTLEY,

             Defendant - Appellant.


                          ORDER AND JUDGMENT            *




Before SEYMOUR, HENRY , and BRISCOE , Circuit Judges.



      After examining the appellant’s brief and appellate record, this panel has

determined unanimously to honor the parties’ request for decision on the briefs

without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case

is therefore submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the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.
      Robert Utley, an inmate at the United States Penitentiary in Leavenworth,

Kansas, appeals from his conviction and sentence for two counts of assault.   1



First, he contends that the district court abused its discretion when it denied his

motion to sever the counts of the indictment. Second, he challenges the district

court’s decision to grant the government’s motion for an upward departure, which

resulted in a sentence of 220 months of imprisonment. For the reasons stated

below, we affirm Mr. Utley’s conviction and sentence.



                                  I. BACKGROUND

      Mr. Utley was charged with four counts of violating 18 U.S.C. § 111(a)(1)

& (b). The incidents took place on four separate occasions, between the months

of January and September of 2001. Mr. Utley moved for severance of the counts,

contending that joinder of the counts was prejudicial. The district court denied

the motion.




      1
         Under our circuit rules, the appellant has the unambiguous duty to
include “copies of all pertinent written findings, conclusions, opinions or orders
of a district judge” and to also append the transcript of the sentencing judge’s
findings. 10th Cir. R. 28.2 (A)(1)-(2). Equally clear is the appellee’s duty to
include such items if the appellant fails to do so. Id. R. 28.2(B). We are at a loss
to understand what it is that might be unclear about Rule 28 or not obvious to the
parties. Quite simply, we need to have conveniently before us all rulings from the
tribunal from which the appeal is being taken.

                                           -2-
       A jury convicted Mr. Utley of two counts and acquitted him on the other

two. At sentencing, the government moved for an upward departure pursuant to

USSG § 4A1.3, contending that Mr. Utley’s criminal history category did not

adequately reflect the seriousness of his past criminal conduct or the likelihood

that he would commit other crimes. The district court granted the government’s

motion, citing the likelihood of recidivism and the similarity of his present

offenses with his past criminal conduct. The court noted that Mr. Utley’s conduct

removed him from the heartland of cases falling within the guideline range.



                                     II. DISCUSSION

       A. Motion for severance

       We review a district court’s denial of a motion to sever for abuse of

discretion.   United States v. Wiseman , 172 F.3d 1196, 1211 (10th Cir. 1999).

Under this standard, a defendant must demonstrate that his right to a fair trial was

threatened or actually deprived.     See United States v. Johnson    , 130 F.3d 1420,

1427 (10th Cir. 1997) . A defendant’s burden to show an abuse of discretion in

this circumstance “‘is a difficult one.’”     United States v. Janus Indus.   , 48 F.3d

1548, 1557 (10th Cir. 1995) (quoting        United States v. Valentine , 706 F.2d 282,

290 (10th Cir. 1983)).




                                              -3-
       When joinder of offenses is based upon their “same or similar character,”

prejudice to the defendant is more likely because the jury may use evidence of

one crime to infer a criminal disposition on the part of the defendant and thus

corroborate the commission of the other crime or crimes charged.        See United

States v. Muniz , 1 F.3d 1018, 1023 (10th Cir. 1993). We have suggested,

however, that prejudice does not exist unless the evidence is “too confusing or

unfairly overlapping.”    Id.

       Mr. Utley contends that because each charge of assault is factually

independent, the joinder of the charges is prejudicial. He maintains that their

joinder encourages the jury to infer that Mr. Utley has a criminal predisposition.

He also maintains that the joinder of the charges hampers his interest in having a

free choice with respect to testifying on certain counts – with joinder, he must

testify regarding each charge or remain silent on them all.

       A defendant who wishes to remain silent on some counts and testify on

other counts is not entitled to a severance under Fed. R. Crim. P. 14 without “‘a

convincing showing that he has both important testimony to give concerning one

count and strong need to refrain from testifying on the other.’”     United States v.

Martin , 18 F.3d 1515, 1518-19 (10th Cir. 1994) (quoting       Valentine , 706 F.2d at

291). In making such a showing, the defendant must

       present enough information–regarding the nature of the testimony
       that he wishes to give on one count and his reasons for not wishing

                                            -4-
       to testify on the other–to satisfy the court that the claim of prejudice
       is genuine and to enable it to intelligently weigh the considerations
       of economy and expedition in judicial administration against the
       defendant's interest in having a free choice with respect to testifying.

Id. (internal quotation marks omitted)

       Bearing in mind the liberal standard for joinder,   see Fed. R. Crim. P. 8(a);

Janus , 48 F.3d at 1557 (“Rule 8 is construed broadly to allow liberal joinder to

enhance the efficiency of the judicial system.” (internal quotation marks

omitted)), we agree with the district court that joinder of the assault charges was

proper under Rule 8(a). Mr. Utley only asserted that he “may wish to testify at

trial as to one or more counts, but not as to all.” Rec. vol. I, doc. 33 (Motion for

Severance). This conclusory allegation, without more, is simply not enough to

warrant severance.

       Mr. Utley also noted that “[t]he Government may introduce evidence as to

statements and subsequent statements made by Mr. Utley in some of these

offenses but not in others.”   Id. Mr. Utley argues that the presentation of this

evidence prejudiced him on the joined counts. There is no suggestion that the

evidence was confusing or overlapping, and we do not think the offenses were so

similar as to present a risk of confusion. As in    Muniz , here “[t]he offenses took

place on different dates at different locations, and different witnesses and

evidence were presented on each count.”       Muniz , 1 F.3d at 1023. We hold that

the district court was correct in concluding there was no prejudice from joinder.

                                             -5-
In addition, the jury apparently did not find the evidence confusing, as it acquitted

Mr. Utley on two of the four charges. We therefore discern no abuse of discretion

in the district court’s denial of his motion to sever.



      B. Upward departure

      Mr. Utley also challenges the district court’s decision to grant an upward

departure pursuant to USSG § 4A1.3. To arrive at its sentence, the court departed

upward from criminal history category VI, offense level 29, to criminal history

category VI, offense level 32, reasoning that the guidelines’ computation did not

adequately reflect the seriousness of Mr. Utley’s past criminal conduct or

likelihood for recidivism, and that an upward departure was necessary.

      The Guidelines allow for a departure if the defendant’s “criminal history

category significantly under-represents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit further crimes.” USSG §

4A1.3. 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.




                                           -6-
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.

       The district court concluded that several factors pointed toward Mr. Utley’s

proclivity for recidivism: his many arrests and convictions over a short period of

time and testimony from correctional officers and the Deputy U.S. Marshal

regarding Mr. Utley’s threatening and violent post-trial behavior. Under USSG §

4A1.3(e), which allows consideration of “prior similar adult criminal conduct not

resulting in a criminal conviction,” the district court was authorized to consider

this testimony.   See United States v. Shumway , 112 F.3d 1413, 1428 (10th Cir.

1997) (affirming district court’s reliance on prior similar adult criminal conduct

under § 4A1.3(e)).

       We 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.” USSG § 4A1.3;

see Shumway , 112 F.3d at 1428 (“The district court relied on information that was



                                               -7-
sufficiently unusual to take [the] case outside the Guidelines’ heartland.). Mr.

Utley was convicted of his first felony when he was 18 years old, and since then

he has been convicted of ten separate offenses while in custody, on parole, or in

an escape status. The district court observed that the government’s statistics

indicate that Mr. Utley was convicted of eight separate offenses during the 441

days that he was on parole since the age of 18. Given the frequency of Mr.

Utley’s criminal convictions, we conclude that the district court did not exceed

the bounds of permissible choice in finding that Mr. Utley’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). Mr. Utley did not

contest the facts of his pre-trial and post-trial conduct at his sentencing hearing.

He suggests that his post-trial incendiary outbursts and reactive behavior were

part of a circle of retaliation upon his acquittal of two counts by the jury. The

court noted that “[o]ver and over again, [Mr Utley] has acted out against

correctional officers, which is the same conduct for which he was convicted.”

Rec. vol. VII, at 26 (Ruling on Gov’t Motion for Departure). Thus, it was not

clearly erroneous for the district court to conclude that the record sufficiently



                                            -8-
supported the departure.    See also United States v. Yates   , 22 F.3d 981, 989 (10th

Cir. 1994) (noting that “[o]nly those facts that are contested at a 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 (internal quotation marks omitted). 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

(internal quotation marks omitted). The district court considered higher offense

levels incrementally and determined that offense level 32 adequately represented

Mr. Utley’s criminal history and likelihood of recidivism. We conclude that the

district court’s rationale and conclusions were reasonable.




                                            -9-
                               III. CONCLUSION

      For the reasons stated above, Mr. Utley’s conviction and sentence are

affirmed.

                                              Entered for the Court,

                                              Robert H. Henry
                                              Circuit Judge




                                       -10-
