                    Case: 12-12447            Date Filed: 12/27/2012   Page: 1 of 9

                                                                         [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                                No. 12-12447
                                            Non-Argument Calendar
                                          ________________________

                           D.C. Docket No. 6:11-cr-00014-ACC-KRS-1


UNITED STATES OF AMERICA,


lllllllllllllllllllllllllllllllllllllll                                     lPlaintiff - Appellee,


                                                    versus


SCOTT EDWARD NELSON,


llllllllllllllllllllllllllllllllllllllll                                  Defendant - Appellant.
                                       ________________________

                            Appeal from the United States District Court
                                for the Middle District of Florida
                                  ________________________
                                      (December 27, 2012)


Before TJOFLAT, PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:
               Case: 12-12447     Date Filed: 12/27/2012     Page: 2 of 9




      Scott Nelson appeals his sentence of 87-months imprisonment for an armed

bank robbery in violation of 18 U.S.C. § 2113(a) and (d). Although the Federal

Sentencing Guidelines provided a range of 63 to 78-months imprisonment for

Nelson’s crime of conviction, the district court sentenced him above the guideline

range based on his criminal history.

      Nelson raises two issues on appeal. First, he claims that the district court

considered factors irrelevant to his criminal history in deciding to upwardly depart

from the guideline range under § 4A1.3. Second, he argues that the district court

erred when it did not sua sponte continue the sentencing hearing after deciding to

depart from the Sentencing Guideline range. After careful consideration of these

alleged procedural defects, we affirm Nelson’s sentence.

                                           I.

      We review the procedural reasonableness of a sentence under an abuse-of-

discretion standard. United States v. Barrington, 648 F.3d 1178, 1194 (11th Cir.

2011). However, “the degree of deference that is due varies with the type of

procedural error alleged.” United States v. Ellisor, 522 F.3d 1255, 1273 n.25 (11th

Cir. 2008). Specifically, “[a] district court abuses its discretion if it applies an

incorrect legal standard, follows improper procedures in making the determination,

or makes findings of fact that are clearly erroneous.” Id. (quotation marks


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omitted). Thus, “[w]e review de novo the district court’s interpretation of the

Guidelines and its application of the Guidelines to the facts,” and we review the

district court’s factual findings for clear error. United States v. Campbell, 491 F.3d

1306, 1315 (11th Cir. 2007) (quotation marks omitted).

      When “a party fails to make a specific objection at the sentencing hearing

after being given an opportunity to do so by the district court, we will only hear a

challenge to the upward departure under a plain error standard.” United States v.

Maurice, 69 F.3d 1553, 1556 (11th Cir. 1995).

                                         II.

      Section 4A1.3 of the Sentencing Guidelines “authorizes a court to depart

upward from a defendant’s sentencing guidelines range where the defendant’s

criminal history category fails to adequately reflect the seriousness of his past

criminal conduct or the likelihood of recidivism.” United States v. Jones, 289 F.3d

1260, 1266–67 (11th Cir. 2002). In deciding whether the “criminal history

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

history or the likelihood that the defendant will commit other crimes,” a sentencing

judge may consider, among other things, “[p]rior sentence(s) of substantially more

than one year imposed as a result of independent crimes committed on different

occasions” and “[p]rior similar adult criminal conduct not resulting in a criminal

conviction.” U.S.S.G. § 4A1.3(a)(2)(B) and (E) (2011).


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       Here, the district court departed from the guideline range pursuant to

§ 4A1.3. The sentencing judge explained that the departure was appropriate based

on the violent nature and disruptive consequences of the crime; Nelson’s

“extensive criminal history including a prior federal conviction in which he

kidnapped, assaulted and robbed his own father”; Nelson’s history of supervision;

and Nelson’s history of violence, mental illness, and substance abuse before and

during his incarceration.

       Nelson argues that the district court erred in considering facts largely

unrelated to his criminal history in justifying a departure based on § 4A1.3.

Specifically, he contends that the facts relating to the violent nature of the crime,

the consequences of the crime, his history of mental illness, disciplinary issues in

prison, and substance abuse problems are irrelevant to his criminal history. Thus,

he argues it was not appropriate for the district court to consider these facts to

justify an upward departure based on his criminal history. He also asserts that

consideration of these facts was improper because these factors had already been

counted against him through an increase in his offense level. The government

responds that the district judge simply “stated together its reasons for the sentence,

as required by section 3553(c) and its reason for departure under section 4A1.3.”1


1
 The government suggests that Nelson believes the district court considered irrelevant factors
because of the way the paragraphs are structured in the sentencing hearing transcript.
Specifically, in one paragraph, the district court states that a departure is appropriate under §
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       Nelson is correct insofar as “an upward departure [based on § 4A1.3] must

be based on factors relating to past criminal conduct as opposed to the offense for

which the defendant is being sentenced.” Jones, 289 F.3d at 1267. “The rationale

behind such policy is that circumstances of the current offense are evaluated in

calculating the offense level, and, therefore, consideration of these same factors for

the criminal history category would unfairly count them twice.” Id. However, a

district court does not err when it acknowledges the current offense “only in

observing that [it] represented the latest in a long, sustained history of criminal

activity.” Id. at 1267-68. Thus, that the district court described Nelson’s crime of

conviction as part of the larger picture of Nelson’s history of violence and

recidivism does not mean the district court abused its discretion in departing from

the guideline range.

       In fact, the district court supported its conclusion that Nelson’s criminal

history category substantially under-represented the seriousness of his criminal

history and the likelihood that that he will commit additional crimes. Section

4A1.3 provides 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.” U.S.S.G. § 4A1.3 comment. (n.2(B)). In 1994, after attacking his father

4A1.3 then proceeds to describe the violent nature of Nelson’s crime. In the next paragraph, the
district court describes that Nelson has a history of violence. The government explains that
Nelson’s argument lacks merit because the court reporter, not the district judge, structured the
paragraphs. This argument is unavailing. We will not hypothesize that Nelson’s argument is
based on a premise he has not articulated and then reject his argument on this basis.
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and forcing him to rob a bank, Nelson was convicted of possession of a firearm by

a convicted felon and transportation of a stolen motor transportation of stolen

currency. After his release in 2008, Nelson violated the terms of his supervised

release by fleeing from his probation officer. While in prison, Nelson was

sanctioned for similarly violent conduct, including eleven instances of assault

without serious injury, two instances of possession of a dangerous weapon, and

fifteen reports of threatening bodily harm. 2 The district court properly applied the

facts to the Sentencing Guidelines and reasonably concluded that an upward

departure was appropriate under § 4A1.3.

       Nelson also asserts that the district court failed to explain whether the

criminal history category was increased by one or two points or whether the

offense level was increased by one or two points. The government responds that

the district court determined that Nelson’s offense level was 25, his criminal

history category was II, and his guideline range was 63 to 78 months. The

government explains that the district judge “implicitly proceeded along the

horizontal axis and sentenced Nelson at the top of the guidelines range applicable

to a total offense level 25 and criminal history category III, the next category up

(which carries a sentencing range of 70 to 87 months).”



2
 The Presentence Investigative Report (PSI) reflects that Nelson denies these allegations.
However, at the sentencing hearing, Nelson conceded that the events did occur.
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      Our precedent provides that upward departures based on the relevant

criminal history category applicable to the defendant are horizontal departures.

See United States v. Taylor, 88 F.3d 938, 947 (11th Cir. 1996). Thus, for Nelson,

an upward departure under § 4A1.3 left him with a criminal history category of III,

an offense level of 25, and a guideline range of 70 to 87 months. As set out above,

the district court adequately explained its reasons for the § 4A1.3 upward

departure.

                                          III.

      Nelson next contends that the district court ordered an upward departure

without giving him an opportunity to argue against the departure or to request a

continuance to prepare an argument against the departure. He explains that it was

a “complete surprise that the District Court was considering an upward departure”

and asserts that the district court should have sua sponte ordered a continuance to

permit Nelson to prepare a defense against the upward departure. Based on this,

Nelson asks us to find that the district court erred by failing to give notice of a

contemplated departure from the guideline range and by failing to grant a

continuance that was not requested.

      Rule 32(h) requires that a district court provide notice before departing from

the guidelines for a reason not identified in the PSI or a party’s prehearing

submission. Fed. R. Crim. P. 32(h). Before a district court imposes an upward


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departure “on a ground not identified as a ground for upward departure either in

the presentence report or in a prehearing submission by the Government,” the court

must give “reasonable notice that it is contemplating such a ruling.” Burns v.

United States, 501 U.S. 129, 138, 111 S. Ct. 2182, 2187 (1991). However, this

Court has held that language in a PSI which informs a defendant of the possibility

of a departure based on § 4A1.3 is sufficient notice when it explains “that if

reliable information indicates the criminal history category does not adequately

reflect the seriousness of the defendant’s past criminal conduct, or the likelihood

that the defendant would commit future crimes, the Court may consider imposing a

sentence departing from the otherwise applicable guideline range.” United States

v. Dixon, 71 F.3d 380, 383 (11th Cir. 1995). Here, Nelson’s PSI included identical

language. Thus, Nelson received reasonable notice that his criminal history might

serve as a basis for an upward departure.

       In light of our conclusion that Nelson got reasonable notice of a potential

departure and that he did not request a continuance, we find that the district court

did not commit plain error when it did not grant a continuance. 3

       For these reasons, we affirm the sentence of the district court.

3
 Nelson concedes that “[o]rdinarily, the failure to request a continuance would result in plain
error review.” He asks, however, that we apply a de novo standard of review here because
Nelson generally objected to the upward departure, even though he did not specifically object, or
even ask, for a continuance. However, to the extent that we review the district court’s failure to
continue the sentencing hearing, we cannot ignore that he did not object to this issue below.
Accordingly, we review the district court’s decision under a plain error standard. United States
v. Maurice, 69 F.3d at 1556.
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AFFIRMED.




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