                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 10, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 12-6055
 v.                                             (D.C. No. 5:11-CR-00292-R-3)
                                                        (W.D. Okla.)
 JOSEPH ALLEN FRAZIER,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY and HARTZ, Circuit Judges.



      In this direct criminal appeal, Defendant-Appellant Joseph Allen Frazier

challenges only the sentence imposed by the district court. This court is granted

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a).

                                          I

      Mr. Frazier was named in four counts of a five-count indictment. Count 1

alleged conspiracy to use unauthorized devices to commit fraud in connection


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
with identification documents and to commit identity theft and aggravated

identity theft. Count 2 alleged fraud in connection with access devices in

violation of 18 U.S.C. § 1029(a)(2). 1 Count 3 alleged aggravated identity theft,

and Count 4 charged fraud in connection with identification documents. Mr.

Frazier entered a plea of guilty to Count 2 as the result of a plea bargain.

      The criminal activity undertaken by Mr. Frazier and his co-defendants was

extensive. For purposes of this appeal, only a very abbreviated summary of that

activity is necessary. Personal identifiers of over two hundred individuals and

business were misappropriated, counterfeit identification documents were created,

fraudulent documents were used to obtain credit cards, and merchandise was

obtained fraudulently from various retailers. The presentence investigation report

(PSR) stated that the means of identification of 88 of those persons and

businesses had actually been used, so that those 88 were deemed victims of the




      1
          The statute provides this definition of “access device”:

      (1) the term “access device” means any card, plate, code, account
      number, electronic serial number, mobile identification number,
      personal identification number, or other telecommunications service,
      equipment, or instrument identifier, or other means of account access
      that can be used, alone or in conjunction with another access device,
      to obtain money, goods, services, or any other thing of value, or that
      can be used to initiate a transfer of funds (other than a transfer
      originated solely by paper instrument);

18 U.S.C. § 1029(e)(1).

                                            2
criminal conduct. The PSR further calculated a total intended loss of $149,583.06

and an actual loss of $74,374.56.

      Mr. Frazier’s involvement in this criminal enterprise began in November

2009, soon after his release from prison. He had previously been convicted of

conspiring with one of the same persons involved in the enterprise now at issue.

      The primary focus of this appeal is the district court’s response to Mr.

Frazier’s lengthy criminal history. The PSR reflected 19 prior convictions, not all

of which were assigned points in the criminal history calculation. (There were

also arrests reflected on the PSR which did not result in added criminal history

points.) That calculation resulted in 23 criminal history points, far in excess of

the 13 points which puts an offender into the highest criminal history

classification, category VI. 2

      The PSR calculated the offense level to be 19. The recommended guideline

range at that offense level for criminal history category VI was 63-78 months.

The PSR noted that the court might wish to consider an upward departure or

variance because the criminal history score arguably understated the seriousness

of Mr. Frazier’s past conduct.




      2
       The PSR in this case used the 2011 version of the Guidelines Manual.
Neither party has expressed disagreement with that choice, so we also use that
version in our analysis.

                                          3
         The district judge agreed that a sentence higher than the advisory guideline

range was appropriate and sentenced Mr. Frazier to 108 months. The method by

which the judge arrived at this figure is a focus of this appeal. The judge

explained that each increase of one in a criminal history category added about one

year to the advisory guideline range at offense level 19. The judge decided to

create a hypothetical criminal history category three categories beyond category

VI, based on the observation that Mr. Frazier’s criminal history score was nine

over the score for category VI, and that each category covered a three-point range

of criminal history points. Therefore, the judge concluded, he would “extrapolate

that out three years,” in departing upward because of Mr. Frazier’s record. Three

years added to a range of 63-78 months would produce a range of 99-114 months,

and the sentence the judge imposed was near the middle of that hypothetical

range.

                                           II

         On appeal, Mr. Frazier contends that his sentence was both procedurally

and substantively unreasonable. We consider four factors in reviewing sentencing

departures:

         (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.


                                            4
United States v. Walker, 284 F.3d 1169, 1171 (10th Cir. 2002) (internal quotation

marks omitted).

                                          A

      We ordinarily review departure errors for abuse of discretion, see Walker,

284 F.3d at 1171, but Defendant here concedes that he failed to preserve his

procedural argument in the district court. Thus, we review only for plain error.

See United States v. Gantt, 679 F.3d 1240, 1246–47 (10th Cir. 2012). “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005) (en banc) (internal quotation marks omitted).

      The Guidelines specify the procedure for the sentencing court to use when

departing upward because the criminal-history category does not adequately

reflect the defendant’s life of crime. For criminal history categories lower than

VI, the Guidelines instruct the court to reference the

criminal-history category “applicable to defendants whose criminal history or

likelihood to recidivate most closely resembles that of the defendant’s.” U.S.S.G.

§ 4A1.3(a)(4)(A). For defendants with criminal-history category VI, a different

approach is required:

            UPWARD DEPARTURES FROM CATEGORY VI. – In a case
      in which the court determines that the extent and nature of the
      defendant’s criminal history, taken together, are sufficient to warrant

                                          5
      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.

U.S.S.G. § 4A1.3(a)(4)(B). This provision was added to the Guidelines in 1992.

See United States v. Sims, 309 F.3d 739, 742-43 (10th Cir. 2002) (reversing for

abuse of discretion after a similar error by the same district judge).

      The district court failed to follow this procedure. Instead of increasing the

offense level, it increased the criminal-history category into a range unknown to

the Guidelines. See id. See also United States v. Maschino, 2012 WL 4801247

(10th Cir. October 10, 2012) (unpublished order and judgment reversing a

criminal sentence on other grounds, but noting the same error made by the district

judge).

      Thus, we conclude that there was error, which was plain, and so that the

first two prongs of the plain-error analysis are satisfied. We conclude, however,

that Mr. Frazier’s argument fails at the third step of the process. The district

court properly could have departed from the recommended Guidelines range to

the sentence imposed by using the method set out in U.S.S.G. § 4A1.3(a)(4)(B),

as quoted supra. We see no basis, other than sheer speculation, for holding that

there is a reasonable probability of a different outcome if we were to reverse and

remand. In other words, Mr. Frazier has not shown that the district court’s error

resulted in the loss of a substantial right.


                                               6
                                         B

      Mr. Frazier also contends that the district court made a procedural error in

its assessment of his criminal history. The sentencing judge “fixated” on the

criminal history score, Frazier argues, and failed to appreciate the nature of his

past conduct. He argues, in essence, that his criminal history score overstated the

severity of his history because some of the convictions occurred almost fifteen

years before his present conviction, and many of the offenses were for

misdemeanors or for driving under the influence.

      The government responds that the Guidelines do not consider driving under

the influence to be a “petty offense,” but require that such offenses be counted as

significant crimes. Thus, the government notes, in United States v. Jones, 332

F.3d 1294, 1302 (10th Cir. 2003), we affirmed a seven-level upward departure

based, in part, on five prior convictions for driving under the influence.

Moreover, the government notes, Mr. Frazier’s history included five fraud-related

convictions, which accounted for thirteen criminal history points, and there were

also three prior driving under the influence convictions that did not receive

points, as well as a prior conviction for violation of a protective order which did

not receive points.

      Mr. Frazier’s criminal history score was ten points above the minimum

level for Category VI, the highest criminal history category under the Guidelines.

And that score did not even represent all of Frazier’s past convictions. We find

                                          7
no abuse of discretion in the district court’s decision that an upward departure

was appropriate.

      Mr. Frazier also asserts that his sentence was substantively unreasonable.

This assertion is not accompanied by any discussion of the sentencing factors in

18 U.S.C. § 3553(a), only by an argument on the primary culpability of one of

Frazier’s co-defendants. We have no doubt that the district court took that factor

into account. We see no abuse of discretion or substantive unreasonableness in

the sentence imposed by the district court.

      The judgment and sentence are therefore AFFIRMED.



                                ENTERED FOR THE COURT



                                William J. Holloway, Jr.
                                Circuit Judge




                                          8
