             Case: 17-14682   Date Filed: 08/03/2018   Page: 1 of 7


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-14682
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 4:17-cr-00011-WTM-GRS-1

UNITED STATES OF AMERICA,
                                                                 Plaintiff-Appellee,

                                    versus

MAYNARD SANDERS,
                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                        ________________________

                               (August 3, 2018)

Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Maynard Sanders appeals his 78-month sentence, imposed after an upward

departure from a criminal history category of IV to VI under U.S.S.G § 4A1.3,

following his conviction for possession of a firearm by a felon.        On appeal,

Sanders argues that the district court plainly erred in departing directly from
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category IV to VI without following the procedure established by this Court for §

4A1.3 departures, and that the error affected his substantial rights because the

departure was not supported by the record. After thorough review, we affirm.

      When a party fails to make a specific objection after being given the

opportunity to do so, we will review his claim on appeal for plain error. United

States v. Maurice, 69 F.3d 1553, 1556 (11th Cir. 1995). To establish plain error,

the defendant must show (1) an error, (2) that is plain, and (3) that affected his

substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007).

If the defendant satisfies these conditions, we may exercise our discretion to

recognize the error only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id. For an error to be plain, it must be clear or

obvious, rather than subject to reasonable dispute. United States v. Sosa, 782 F.3d

630, 637 (11th Cir. 2015). For “substantial rights” to be affected, a defendant must

establish a “reasonable probability” that the error affected the outcome of the

proceedings. United States v. Gonzalez, 834 F.3d 1206, 1218 (11th Cir. 2016).

      The Sentencing Guidelines provide that a district court may impose an

upward departure “[i]f reliable information indicates that the defendant’s criminal

history category substantially under-represents the seriousness of the defendant’s

criminal history or the likelihood that the defendant will commit other crimes.”

U.S.S.G. § 4A1.3(a)(1). In determining whether a defendant’s criminal history


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category is inadequate, the district court may consider, inter alia, prior sentences

that were not used in computing his criminal history category; prior sentences “of

substantially more than one year” imposed on independent crimes committed on

different occasions; prior similar adult criminal conduct not resulting in criminal

convictions; and whether the defendant was pending sentencing on another charge

at the time of the instant offense. U.S.S.G. § 4A1.3(a)(2). These examples “are

not intended to exhaust the possible bases of departure.” United States v. Fayette,

895 F.2d 1375, 1377 (11th Cir. 1990). We’ve authorized the use of juvenile

adjudications and probation or supervised release violations as factors justifying

the decision to depart upward. See United States v. Williams, 989 F.2d 1137, 1141

(11th Cir. 1993); United States v. Briggman, 931 F.2d 705, 710 (11th Cir. 1991).

      Ultimately, the district court should select the extent of a departure by

reference to the criminal history category “applicable to defendants whose criminal

history or likelihood to recidivate most closely resembles” that of the individual

being sentenced. U.S.S.G. § 4A1.3(a)(4)(A). A district court must follow a step-

by-step procedure at arriving at this decision. United States v. Sammour, 816 F.3d

1328, 1341-42 (2016); United States v. Johnson, 934 F.2d 1237, 1239-40 (11th

Cir. 1991). Specifically, the court must look to the next highest criminal history

category and assess, taking into account the factors allowed by § 4A1.3, whether

that category more accurately reflects the defendant’s criminal history. Johnson,


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934 F.2d at 1239. If the court decides that this new category inadequately reflects

the defendant’s criminal history, the court must look to the next highest category

and repeat its inquiry. Id. at 1239-40. The court must discuss each category it

passes over en route to the category that adequately reflects the defendant’s past

criminal conduct. United States v. Dixon, 71 F.3d 380, 382 (11th Cir. 1995).

“These findings must be shared with the defendant on the record.” United States v.

Huang, 977 F.2d 540, 544 (11th Cir. 1992). The district court may alternatively

“assign criminal history points to the unscored convictions and extrapolate the

criminal history category that would have applied.” Sammour, 816 F.3d at 1342.

      Because Sanders failed to object to the district court’s departure findings or

the manner in which it pronounced his sentence, we review only for plain error.

According to the presentence investigation report (“PSI”), Sanders’s guideline

range was 51 to 63 months’ imprisonment, based on an offense level of 20 and a

criminal history category of IV. The PSI recommended, however, a departure to a

category of VI, which the district court ultimately agreed with and imposed a 78-

month sentence. Because, however, the district court failed to expressly discuss

the adequacy of criminal history category V before upwardly departing to category

VI, or to assign criminal history points to Sanders’s unscored criminal record and

extrapolate the resulting category, it appears that the district court’s failure to do so




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resulted in an “error” that was “plain.”      See Johnson, 934 F.2d at 1239-40;

Sammour, 816 F.3d at 1341-42; Dixon, 71 F.3d at 382; Huang, 977 F.2d at 544.

      Nevertheless, Sanders has failed to satisfy the “substantial rights” prong of

the plain error test because he has not shown a reasonable probability that the error

affected the outcome of the proceedings. Gonzalez, 834 F.3d at 1218. As the

record reveals, the district court specifically announced that it had reviewed the

PSI and addendum, the parties’ arguments, and the government’s motion for an

upward departure. In that motion, the government informed the court that it was

required to consider the adequacy of category V before moving to VI, and

expressly noted that, even considering just one of the prior uncounted offenses,

Sanders was already in criminal history category V. Additionally, the PSI noted

the differences between categories IV and VI, and that Sanders’s criminal history

presented several factors that justified an upward departure, including his multiple

probation and supervised release violations, which were unscored; his unscored

juvenile adjudications; and the fact that Sanders committed the current felon-in-

possession offense while awaiting sentencing on his pending 2017 federal financial

felony convictions.     U.S.S.G. § 4A1.3(a)(2); Williams, 989 F.2d at 1141;

Briggman, 931 F.2d at 710. The district court’s express reliance on these materials

suggests it was aware of the differences in criminal history categories as well as

the requirement that it consider the criminal history categories one by one.


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      Indeed, upon imposing the 78-month sentence, the district court recognized

that it had “departed above the applicable imprisonment range based upon the

inadequacy of [Sanders’s] criminal history score [under U.S.S.G. §] 4A1.3,” and

that it believed his criminal history score of IV “substantially under-represent[ed]

the seriousness of his actual criminal history and” likelihood of recidivism. It

therefore “conducted a guideline departure and determined that the defendant’s

criminal history and the likelihood that he will commit further crimes is more

adequately reflected by a criminal history category of VI.” The district court also

specifically observed that this was Sanders’s second felon-in-possession offense,

and mentioned his concealed firearm conviction, which it said could have resulted

in a separate felon-in-possession charge. Thus, in upwardly departing and deciding

that category VI “more accurately reflected” Sanders’s criminal history and

likelihood of recidivism, the district court relied on the proper factors, placing

heavy emphasis on the fact that Sanders has committed several firearms crimes,

and expressly giving consideration to his criminal background. The district court’s

upward departure is further supported by Sanders’s extensive unscored criminal

background -- assigning points to these offenses and extrapolating the resulting

criminal history score gives Sanders the six additional criminal history points that

take him from category IV to VI, see U.S.S.G. Sentencing Table, Ch. 5, Pt. A, and

to the 78-month sentence the court imposed. See Sammour, 816 F.3d at 1342.


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      On this record, we conclude that Sanders has failed to show that there is a

“reasonable probability” that, but for the district court’s failure to expressly

address criminal history category V, he would have received a lower sentence.

Gonzalez, 834 F.3d at 1218. Nor, in light of Sanders’s extensive criminal history,

can we say the error “seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.” Id.; see also id. at 1219 (noting that plain error

review should be exercised “sparingly, and only in those circumstances in which a

miscarriage of justice would otherwise result”). Accordingly, we affirm.

      AFFIRMED.




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