                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1058
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Jeremie Jay Schwalk,                     *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: June 15, 2004
                                 Filed: June 20, 2005
                                  ___________

Before SMITH, BEAM, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Jeremy Jay Schwalk pled guilty to assault resulting in serious bodily injury, in
violation of 18 U.S.C. §§ 1152 and 113(a)(6). The district court1 departed upward
from the applicable sentencing guideline range, which was then treated as mandatory,
and imposed a sentence of 60 months’ imprisonment. Schwalk appeals, arguing that
the district court erred by departing upward from the applicable guideline range, and



      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
after the case was submitted, he raised an additional argument based on Blakely v.
Washington, 124 S.Ct. 2531 (2004). We affirm.

       The undisputed presentence report prepared by the United States Probation
Office recounts that on January 16, 2003, Schwalk and his wife took their four year-
old son, J.S., to a hospital emergency room in Fort Yates, North Dakota. J.S. was
then transferred to a medical center in Bismarck, where doctors diagnosed a broken
leg and observed several burns and other injuries on the boy’s body. J.S. had burns
on the right and left sides of his upper back, on the upperside of his right hand, and
on the back of his right thigh. Doctors also found ten to fifteen patches where there
was thinning of the “parietal and front scalp” area, multiple “crusted abrasions” of the
forehead, an abrasion on the upper lip, and a “healing burn of the right lateral lower
lip.”

       When one of the doctors asked J.S. how he hurt his leg, the boy replied,
“Daddy did it,” “Daddy kick,” and “fell down steps.” When the doctor remarked that
the injury must have hurt, the boy stated, “I fell off chair.” When the doctor asked
how he received the burns on his hands, J.S. said, “Trevor did it,” “Trevor fight” – an
apparent reference to his younger brother. When the doctor remarked that J.S. also
had a burn on his leg, the boy stated, “Daddy did it.” Six months later, when an
interviewer at a child advocacy center in South Dakota asked J.S. who hurt his hands,
the boy answered, “Daddy.”

      The medical summary prepared by the doctors who treated J.S. stated that the
broken leg and multiple skin wounds were “secondary to child abuse.” One physician
commented that “this type of injury is most typical for that suffered as a direct blow,”
that the burns are “not consistent with [the victim] getting too close to hot
equipment,” and that there was “no explanation given for the multiple healing, round
areas of hair thinning with scarring on his scalp.”



                                          -2-
       Although Schwalk denied in interviews with the FBI that he caused J.S.’s leg
fracture, he admitted during a presentence interview with the probation office that he
broke the boy’s leg. He gave no detailed explanation of the incident. Regarding the
burns, Schwalk told the FBI that J.S. received them when he fell back against an oil
heating stove after a push by his younger brother. Schwalk said he did not seek
medical treatment for the boy because the burns did not appear to be “that bad.”
Schwalk’s wife corroborated these statements.

       After Schwalk pled guilty to assault resulting in serious bodily injury, the
probation office prepared a report that recommended a guideline sentencing range of
30 to 37 months’ imprisonment, based on a total offense level of 18 and a criminal
history category of II. The offense level was computed based only on Schwalk’s
assault causing J.S.’s broken leg; it did not take into account the burns suffered by the
boy. Prior to the sentencing hearing, the district court notified the parties that it
would consider an upward departure from the guideline sentencing range. The court
ultimately determined to depart upward and sentence Schwalk based on a total
offense level of 20 and a criminal history category of IV. With a resulting guideline
range of 51 to 63 months, the court imposed a sentence of 60 months’ imprisonment.

       In its written statement of reasons, the court identified three bases for upward
departure. First, the court relied on USSG § 5K2.0, which sets forth general grounds
for departure, and § 5K2.21, which provides that a court may depart upward to reflect
the actual seriousness of the offense based on certain dismissed and uncharged
conduct. The court found that Schwalk caused the burns to his son’s body, and that
this uncharged conduct was not taken into account by the guideline sentencing range.
The court “did not believe the burns on the victim were caused by being pushed into
a heating stove by his younger brother,” and observed that “[w]hen the victim was
questioned by a doctor, he responded, ‘Daddy did it,’ and he made reference to a
lighter and the defendant’s smoking.”



                                          -3-
      Regarding § 5K2.0, the court concluded that the offense conduct was outside
the heartland of typical assault cases governed by USSG § 2A2.2. The court noted
that Schwalk’s assault was unprovoked, and that the assault guideline included no
enhancement for the victim being in the care, custody, or control of the defendant.
The court emphasized that the victim, as a young child of the defendant, was
considered much more vulnerable “due to the defendant’s access to him, the ease in
hiding the assaultive conduct, and the difficulty the victim would have in reporting
the defendant’s assaultive conduct toward him.”

      Second, the court departed upward based on “extreme conduct,” pursuant to
USSG § 5K2.8. The court found that the “many extensive burns caused were painful,
extensive, and will result in permanent scarring.” The court also considered
Schwalk’s conduct to constitute “gratuitous infliction of injury.”

       Third, the court cited USSG § 4A1.3 and departed upward on the ground that
criminal history category II substantially under-represented the likelihood that
Schwalk would commit further crimes. The court found that Schwalk was convicted
of a number of motor vehicle offenses that were not counted in his criminal history
score, and concluded that “his history demonstrates an ongoing lack of respect for the
law.” The court also noted that it departed upward based on prior similar conduct not
resulting in a conviction, see § 4A1.3(a)(2)(E), when it found that Schwalk had
caused the burns to the boy’s body.

       Schwalk was sentenced prior to the Supreme Court’s decision in United States
v. Booker, 125 S.Ct. 738 (2005), and the district court thus applied the sentencing
guidelines in a mandatory fashion. After Booker, although the guidelines are
effectively advisory, we continue to review on appeal the district court’s
determinations in calculating the now-advisory guideline range, including a district
court’s decision to depart from the guideline range in fashioning the advisory
guideline sentence. United States v. Haack, 403 F.3d 997, 1005 (8th Cir. 2005). We

                                         -4-
recently held that after Booker, we review legal conclusions de novo, findings of fact
for clear error, and decisions to depart from the guideline range for abuse of
discretion. United States v. Mashek, 406 F.3d 1012, 1016-17 (8th Cir. 2005).

      Schwalk argues that the vulnerability of the victim, his son, may not serve as
the basis for an upward departure, because the court already imposed a two-level
adjustment pursuant to § 3A1.1 for knowing that the boy was a “vulnerable victim,”
which is defined as one who is “unusually vulnerable due to age, physical or mental
condition, or who is otherwise particularly susceptible to the criminal conduct.”
USSG § 3A1.1, comment. (n.2). The district court here found that:

       someone’s child is more than a vulnerable victim because it is easy to
       hide assaults on your own children. They have no place to go. They
       would not be able to easily report it and would not report it. They’re in
       the home. And on a daily basis this child is under the control, including
       for food and every other necessity of life, of this defendant and his wife.
       And this is a factor that’s not taken into account at all in the guidelines
       for this type of assault resulting in serious bodily injury.

(S. Tr. at 37).

      A departure is permissible if the court finds an aggravating circumstance “of
a kind, or to a degree, not adequately taken into consideration by the Sentencing
Commission.” 18 U.S.C. § 3553(b) (emphasis added). The Commission itself has
indicated that punishment in excess of the two-level adjustment under § 3A1.1 may
be appropriate in certain cases involving vulnerable victims who have multiple
vulnerabilities. For example, if an offense guideline provides an enhancement for age
of the victim, then the adjustment under § 3A1.1 may also be applied – and the
vulnerability of the victim thus taken into account twice – if “the victim was
unusually vulnerable for reasons unrelated to age.” USSG § 3A1.1, comment. (n.2).
We believe the district court persuasively explained in this case why the vulnerability

                                          -5-
of Schwalk’s young son was a circumstance existing “to a degree” not considered by
the Sentencing Commission when it promulgated § 3A1.1(b)(1), and we see no abuse
of discretion in departing upward from the guideline range on that basis.

       Schwalk also asserts that the district court improperly departed upward based
on uncharged conduct pursuant to USSG § 5K2.21, because the evidence was not
sufficiently reliable to justify the court’s conclusion that Schwalk caused severe burns
to the body of his son. We disagree. Schwalk did not object to the factual statements
in the presentence report (S. Tr. at 22), and he thus admitted the facts contained
therein. United States v. Johnson, 2005 WL 1250323, at * 4 (8th Cir. May 27, 2005).
These facts established that while Schwalk claimed that the burns were caused when
the boy’s younger brother pushed J.S. into a stove, (PSR ¶ 48), J.S. told a doctor
inquiring about his burned leg that “Daddy did it” and appeared to indicate the burns
were caused by a cigarette lighter, (PSR ¶ 49), J.S. told an evaluator at a child
advocacy center that “Daddy” hurt his hands (PSR ¶ 50), and doctors treating J.S.
concluded that “[t]he burns are in multiple locations and are not consistent with [the
victim] getting too close to hot equipment.” (PSR ¶ 9). The district court found that
the burn injuries were “horrendous,” and “totally inconsistent with being burned by
this stove.” (S. Tr. at 32). We conclude that this finding of fact is not clearly
erroneous, and that the district court properly relied on the uncharged conduct in
fashioning an upward departure.

       Schwalk also complains that the district court impermissibly departed upward
based on a conclusion that his criminal history category substantially under-
represented the seriousness of his criminal history and the likelihood that he would
commit further crimes. The district court based its upward departure under § 4A1.3
on Schwalk’s long series of convictions for various minor offenses and on his
uncharged conduct of causing severe burns to J.S., none of which was counted in
establishing his criminal history category.



                                          -6-
       For the reasons discussed above, we disagree with Schwalk’s contention that
the evidence was not sufficiently reliable to justify the conclusion that Schwalk
caused the burns. We also discern no abuse of discretion in the district court’s
consideration of Schwalk’s history of relatively minor offenses that were not counted
in his criminal history score under the guidelines. Between 1996 and 2002, Schwalk
sustained three convictions for exhibition driving, four convictions for driving with
a suspended license, four convictions or citations for speeding, one citation for a seat
belt violation, one citation for no proper license plates on a vehicle, one conviction
for disorderly conduct, and four convictions for passing or issuing checks with
insufficient funds. The district court aptly observed that Schwalk “has one violation
of law after another,” (S. Tr. at 33), and we have held that “even offenses which are
minor and dissimilar to the instant crime may serve as evidence of likelihood of
recidivism if they evince the defendant’s incorrigibility.” United States v. Agee, 333
F.3d 864, 867 (8th Cir. 2003); see also United States v. Long Turkey, 342 F.3d 856,
860 (8th Cir. 2003). The district court properly relied on this series of convictions
to conclude that Schwalk’s criminal history category seriously under-represented the
likelihood that he would commit further crimes.

        Schwalk argues finally that the district court erred by departing upward
pursuant to USSG § 5K2.8 based on “extreme conduct,” which the guidelines define
as conduct that was “unusually heinous, cruel, brutal, or degrading to the victim.”
The guideline states that “gratuitous infliction of injury” is exemplary of “extreme
conduct.” The district court described Schwalk’s conduct as “heinous, cruel, and
brutal beyond the characteristics associated with the crime of assault resulting in
serious bodily injury,” (S.Tr. at 38), and found that the conduct involved “gratuitous
inflictions of injury.” (S. Tr. at 39). The court found that the “many extensive burns
caused were painful, extensive, and will result in permanent scarring,” (Add. at 9),
observed that the four-year-old boy had “no way of defending himself,” stated that
Schwalk’s acts constituted “outrageous conduct,” and concluded that “if this case
doesn’t justify an upward departure, I don’t know what case would.” (S. Tr. at 39).

                                          -7-
We conclude that the record amply supports the district court’s finding of extreme
conduct, and there was no abuse of discretion in departing upward on this basis.

       In a filing pursuant to Fed. R. App. P. 28(j), Schwalk cited the Supreme Court’s
decision in Blakely and offered to file a supplemental brief. Since then, the Supreme
Court decided Booker, which declared that the sentencing guidelines are effectively
advisory, and directed the district courts to impose sentence after considering all of
the factors set forth in 18 U.S.C. § 3553(a). Schwalk raised no objection at
sentencing based on the Sixth Amendment or the application of mandatory
guidelines, and we conclude that the record does not establish plain error warranting
relief. See United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005). As discussed,
the district court departed upward from the otherwise applicable guideline sentencing
range, and we find nothing in the record establishing a reasonable probability that the
court would have imposed a more favorable sentence under the advisory guideline
scheme announced in Booker. Id. at 553.2

      The judgment of the district court is affirmed.
                     ______________________________




      2
        Schwalk has not filed any supplemental argument or request for leave to make
supplemental argument in light of Booker, and he has not urged that the sentence
imposed is unreasonable with regard to 18 U.S.C. § 3553(a). As discussed, we
believe the sentence is consistent with the now-advisory guidelines, and we do not
think it is unreasonable.

                                         -8-
