                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 27, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 18-2023
                                                  (D.C. No. 2:17-CR-02483-KG-1)
STAR JOSEPH, a/k/a Joseph Star,                              (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, KELLY, and MORITZ, Circuit Judges.
                  _________________________________

      This appeal concerns Defendant-Appellant Star Joseph’s sentence for his

conviction for high speed flight from an immigration checkpoint. Joseph argues that

the district court procedurally erred by: (1) before sentencing, not providing

sufficiently specific notice that it was considering an upward departure based on

inadequacy of criminal history category, and (2) at sentencing, not adequately

articulating its reasons for upwardly departing from a criminal history category of IV

to a criminal history category of VI. Joseph did not raise either argument below, so

we review for plain error.


      *
         This order and judgment is not binding precedent, except under the doctrines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.
       We conclude that, as to both errors, Joseph does not establish that his

substantial rights were affected. We therefore AFFIRM Joseph’s sentence.

                                              I

       Joseph’s conviction arises out of events that occurred on July 1, 2017, at a border

patrol checkpoint in New Mexico. When Joseph, a U.S. citizen, arrived at the

checkpoint, a border patrol agent checked the records on the vehicle Joseph was driving

and learned that the vehicle had been reported stolen. ROA, Vol. II, at 3. Joseph also

could not produce a copy of his driver’s license, so the border patrol agent directed him

to a secondary inspection area. Id. At the secondary inspection area, another agent

approached Joseph’s vehicle. Id. At this point, Joseph fled the checkpoint in the vehicle,

with agents pursuing. Id. At times during the pursuit, Joseph drove up to 70 miles per

hour in a 50 mile-per-hour speed zone. Id. Joseph successfully evaded the agents. Id.

He was later apprehended and charged with High Speed Flight from an Immigration

Checkpoint, in violation of 18 U.S.C. § 758, to which he pleaded guilty.

       The probation office prepared a Presentence Investigation Report. The PSR

calculated a total offense level of 8 and a criminal history category of IV, resulting in an

advisory Guideline imprisonment range of 10 to 16 months. Id. at 5, 10, 16. The PSR

identified no factors warranting a departure. Id. at 18.

       On January 17, 2018, at the hearing initially scheduled for Joseph’s

sentencing, the district court told Joseph, Joseph’s counsel, and the government, “I

am considering, though I have not decided, whether an upward variance from offense

level 8 is necessary and appropriate.” ROA, Vol. III, at 7. The district court pointed

                                              2
to “the circumstances within which Mr. Joseph was apprehended,” and Joseph’s

criminal history, “which dates to 2003, . . . and includes numerous other convictions

since then,” and stated it was “describing all of that[] . . . to let [the parties] know”

that it was considering an above-Guidelines sentence. Id. at 6–7. The district court

stated:

          Mr. Joseph, so what I’ve explained is, based on your history, I’m
          considering—and once again, I haven’t decided what’s the most
          appropriate sentence for you, but if I’m at all considering a higher
          sentence than what is contemplated in the guidelines, and for you right
          now that’s ten to 16 months, I have to give your counsel notice, and
          that’s what I’m doing now.

Id. at 9. Neither Joseph nor the government requested clarification about the specific

reason the district court was considering imposing an above-Guidelines sentence.1

          After the January 17, 2018 hearing, Joseph filed a sentencing memorandum.

ROA, Vol. I, at 7–11. He acknowledged that the district court had notified the

parties that it was considering an above-Guidelines sentence, but noted that the court

“did not specify whether this consideration was due to a belief that Mr. Joseph’s

criminal history category under represents his criminal conduct, or whether the

guideline range did not appear to afford enough time for meaningful treatment.”2 Id.



          1
        A district court is not required to give notice of an upward variance based on
the 18 U.S.C. § 3553(a) factors—only of an upward departure from the advisory
Guideline sentence. Irizarry v. United States, 553 U.S. 708, 714–16 (2008).
          2
        Of course, extending Joseph’s term of imprisonment solely for Joseph to
receive treatment would be error. See Tapia v. United States, 564 U.S. 319, 335
(2011) (holding that a district court “may not impose or lengthen a prison sentence to
                                                                       (Continued . . .)
                                             3
at 7 & n.1. Nevertheless, Joseph argued against an upward departure on the basis of

inadequacy of his criminal history category pursuant to § 4A1.3 of the Sentencing

Guidelines. Id. at 8–9. Joseph discussed several of his prior felony convictions,

noting that the Guidelines direct that those convictions be assessed no criminal

history points. Id. at 8 (discussing felony convictions that received no criminal

history points because they were “from 2003 and 2004” and therefore more than 10

years old, and a conviction from 2011 that “was assessed zero criminal history points

based on the concurrent nature of that sentence”). Joseph also noted two pending

state charges, and discussed his counsel’s understanding of how those charges would

be resolved. Id. at 9. Joseph argued that a sentence within the Guideline range of 10

to 16 months’ imprisonment, “followed by a likely state sentence in a pending

matter, . . . will be sufficient but not greater than necessary to meet the requirements

of § 3553(a).” Id. at 9.

      On February 6, 2018, at the sentencing hearing, the district court discussed in

detail the nature of Joseph’s offense. ROA, Vol. III, at 22–24. It also recounted

Joseph’s criminal history, noting that it

      goes back to . . . the age of 19 in 2003. It includes residential burglary,
      2003, when you’re 21.[3] It includes child abuse. It includes aggravated


(cont’d)
enable an offender to complete a treatment program or otherwise to promote
rehabilitation.”). Joseph does not argue that happened here.
      3
        The PSR indicates that Joseph was 19 on March 21, 2003, ROA, Vol. II, at 5,
and 21 on December 13, 2003, id. at 6. Based on Joseph’s date of birth, he was 20
                                                                     (Continued . . .)
                                            4
      assault against a household member. And I read the circumstances
      surrounding that . . . . These are serious things.

                ....

            There’s a robbery[] . . . ; false imprisonment; another battery
      against a household member. These things are concerning. . . .
      [A]nother conviction for battery against a household member. . . .
      Robbery . . . ; attempt to commit a felony and armed robbery[] . . . .
      These are all things that are very troubling. And this occurred in 2011.

             There are other arrests that were pending. . . . [O]ne charge that’s
      pending in Texas. This occurred on February 1st, 2017, just about one
      year ago. Another charge in Albuquerque . . . . [Another charge],
      battery upon a peace officer. This is still very serious. [A]rmed
      robbery, aggravated battery against a household member, though this
      was dismissed without prejudice[] . . . . Evading and resisting[] . . . .

Id. at 23–25.

      The district court discussed Joseph’s convictions for “domestic violence,

where multiple women were victimized,” and identified those convictions as “being

other examples of [Joseph’s] violent history.” Id. at 31. The district court also

stated, “I don’t really understand how you would ultimately receive a probationary

sentence for the child abuse and aggravated assault charge and conviction . . . , nor

do I understand how you would receive a probationary sentence for the robbery . . . .”

Id. The district court announced that it had “considered Section 4A1.3[4] relating to



(cont’d)
when he was arrested for the March 2003 offense, and 21 when arrested for the
December 2003 offense. See id. at 2. This discrepancy does not affect our analysis.
      4
         Section 4A1.3 provides, in relevant part: “If 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
                                                                        (Continued . . .)
                                           5
criminal history and upward departures as well as Section 4A1.1,[5] that also relating

to criminal history.” Id. at 26.

      At the hearing, Joseph’s counsel did not object to an upward departure based

on inadequate notice, but asked to “address the issue with the seriousness of this

offense . . . and the criminal history score.” Id. at 27. Regarding Joseph’s criminal

history score, his counsel argued

      when you look at the priors that the Court expressed concern about,
      many of them are from 2003, 2004. . . .

      [W]hen confronted, Mr. Joseph runs. . . . He certainly has batteries. . . .
      [H]e has some misdemeanor-type violent charges, but when confronted
      by an authority figure, he runs. This is a high-speed flight case. The
      prior robbery I mentioned, he fled the scene.

             He’s not looking to harm people. He’s looking for a way to have
      a roof over his head, to find meals, to take a shower. [T]his is a
      situation where homelessness and poverty have resulted in some
      extremely poor choices on Mr. Joseph’s part.

Id. at 28–30.

      When sentencing Joseph, the district court stated that Joseph’s

      prior history is of serious concern to this Court. It involves serious acts
      of violence toward law enforcement, girlfriends, and the general public,
      which suggests a propensity for violence.

             Despite previous sanctions, [Joseph] has continued to pose a
      serious risk to the community and a disregard for the law.

                Based on these findings, I’ve determined that a sentence above

(cont’d)
will commit other crimes, an upward departure may be warranted.” U.S.S.G.
§ 4A1.3(a)(1).
      5
          Section 4A1.1 governs the calculation of criminal history categories.

                                            6
       the advisory guideline imprisonment range will be reasonable and
       sufficient, but not greater than necessary to accomplish the sentencing
       goals as set forth in 3553(a).

              ....

       [A]s to the criminal history category of IV, I will note that the criminal
       history described in the Presentence Report more closely, I believe,
       resembles a category of VI, so, therefore, I’m finding that a category IV
       underrepresents the seriousness of his criminal history.

Id. at 34. “[B]ased on an offense level of 8 and a criminal history category of VI,”

the district court calculated a Guideline range of 18 to 24 months’ imprisonment, and

sentenced Joseph to 24 months’ imprisonment. Id. at 35.

       In the final judgment, entered on February 6, 2018, the stated basis for

departure was: “Pursuant to Section 4A1.1 and 4A1.3, the Court finds that

defendant’s criminal history under represents the defendant’s Criminal History

Category. The Criminal History is more similarly situated with that of a Category of

VI.” ROA, Vol. II, at 25.

       Joseph timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

                                            II

       Joseph asserts two issues on appeal. First, he contends that, before sentencing,

the district court did not give sufficiently specific notice that it was considering an

upward departure based on Joseph’s criminal history. Second, he argues that, at

sentencing, the district court erred by failing to “specifically articulate its reasons”

for increasing Joseph’s criminal history category from IV to VI. Aplt. Br. at 1.

Joseph argues that both errors require remand for resentencing.


                                             7
       Because Joseph did not object to either asserted error in the district court, we

review for plain error. We conclude that Joseph does not establish that either

asserted error affected his substantial rights, and therefore does not carry his burden

under plain-error review.

              A.     Standard of Review

       Joseph may “obtain relief under the plain-error doctrine only if . . . : (1) the

district court committed error; (2) the error was plain—that is, it was obvious under

current well-settled law; (3) the error affected [his] substantial rights; and (4) ‘the

error seriously affected the fairness, integrity, or public reputation of judicial

proceedings.’” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012)

(alterations omitted) (quoting United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir.

2005)). “Because all four requirements must be met, the failure of any one will

foreclose relief and the others need not be addressed.” Id.

              B.     District Court’s Notice of Contemplated Departure

       Joseph argues that he succeeds under plain-error review because, although the

district court gave notice that it was considering a sentence above the Guideline

range, it “never specifically stated that it was considering an upward departure

pursuant to U.S.S.G. § 4A1.3(a).” Aplt. Br. at 13. We conclude that, even assuming

the notice the district court gave was inadequate, Joseph’s substantial rights were not

affected, so he cannot meet the plain-error review standard.

       To show that an error affected his substantial rights, “a defendant generally

must demonstrate that an error was ‘prejudicial, meaning that there is a reasonable

                                             8
probability that, but for the error claimed, the result of the proceeding would have

been different.’” United States v. Bustamonte-Conchas, 850 F.3d 1130, 1138 (10th

Cir. 2017) (quoting United States v. Algarate-Valencia, 550 F.3d 1238, 1242 (10th

Cir. 2008)). “Normally, although perhaps not in every case, the defendant must make

a specific showing of prejudice” to show that his or her substantial rights were

affected. United States v. Olano, 507 U.S. 725, 735 (1993); see also Bustamante-

Conchas, 850 F.3d at 1138–40 (quoting Olano, 507 U.S. at 735, and discussing

possible forms of per se prejudicial procedural errors such as denial of allocution

right and incorrect calculation of the Guideline range). Joseph therefore must

establish that, but for the district court’s failure to provide more specific notice, he

would have received a different sentence. He has failed to make that showing.

       First, Joseph provides nothing other than a conclusory statement that the

district court’s failure to provide more specific notice “resulted in an increased

sentence.” Aplt. Br. at 13. This does not satisfy his burden to make the “specific

showing of prejudice,” necessary in plain-error review. See Olano, 507 U.S. at 735.

Joseph points to no additional arguments he would have made in the district court, or

research or investigation he would have done before sentencing had the district court

given more specific notice.6 Cf. United States Calzada-Maravillas, 443 F.3d 1301,


       6
        At oral argument, counsel for Joseph asserted that, had the district court
given more specific notice, counsel would have sought additional records for some of
Joseph’s convictions and attempted to call a witness at the hearing. Oral Arg. Tr. at
04:38–04:47. This argument, asserted for the first time at oral argument “comes too
late.” Thomas v. Denny’s, Inc., 111 F.3d 1506, 1510 n.5 (10th Cir. 1997).

                                             9
1304 (10th Cir. 2006) (stating that notice matters because it “allows the parties to

‘marshal and present evidence opposing any departure’” (quoting United States v.

Burdex, 100 F.3d 882, 885 (10th Cir. 1996))).

      Further, in both his sentencing memorandum and at the sentencing hearing,

Joseph argued against an upward departure based on his criminal history. See ROA,

Vol. I, at 8–9 (discussing the convictions in Joseph’s criminal history and noting why

they were assessed no criminal history points); ROA, Vol. III, at 28–30 (arguing that

much of Joseph’s criminal history was because “[h]e’s looking for a way to have a

roof over his head, to find meals, to take a shower”). Therefore, not only has Joseph

not identified what else he would have argued had he been given more specific

notice, but he made arguments before and during his sentencing hearing against an

upward departure based on his criminal history.

      Joseph has not established that his substantial rights were affected by the first

error he claims, and he therefore fails to carry his burden under plain-error review.

             C.     District Court’s Explanation of the Basis for Departure

      Joseph also argues that the district court did not adequately explain its reasons

for departing upward and, “[g]iven this lack of explanation, remand for resentencing

is necessary.”7 Aplt. Br. at 17. We conclude that Joseph’s substantial rights were not


      7
        Joseph argues that we review this asserted error for abuse of discretion. Aplt.
Br. at 14. However, Joseph did not preserve this objection in the district court, so we
review for plain error. At the end of sentencing, the district court noted Joseph’s
objection to his sentence “because it’s beyond what is contemplated within the
Guidelines otherwise.” ROA, Vol. III, at 40–41. This is insufficient to preserve an
                                                                         (Continued . . .)
                                           10
affected by the error he asserts,8 so he cannot meet the plain-error review standard.

       A district court may depart to a higher criminal history category when

“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).

Section 4A1.3(a)(2) includes a non-exhaustive list of grounds for departure for “an

inadequately represented criminal history category.” United States v. Pettigrew, 468

F.3d 626, 641 (10th Cir. 2006). Here, the information in the PSR provides a

sufficient basis for upwardly departing, and Joseph cannot establish that, but for the

district court’s inadequate explanation, his sentence would have been different.

       At sentencing, the district court discussed Joseph’s “serious” and “concerning”

criminal history that “goes back to . . . the age of 19 in 2003.” ROA, Vol. III, at 24.

This concern could provide a proper basis for an upward departure. Departures can

be justified for stale but serious convictions, such as those the district court

identified. See U.S.S.G. § 4A1.2, cmt. n.8 (“If the court finds that a sentence


(cont’d)
objection for inadequate explanation. See United States v. Robertson, 568 F.3d 1203,
1210 (10th Cir. 2009) (“[U]nless Defendant lodged a specific objection to a
procedural error at sentencing, our review is limited to plain error.”).
       8
        The United States appropriately concedes that the district court erred by
inadequately explaining its reasons for departing upward. See Robertson, 568 F.3d at
1215 (holding that a district court did not adequately explain its upward departure
when it “cited multiple factors favoring an upward departure,” but “its only comment
in regard to the degree of that departure was that Defendant’s criminal history most
closely resembled that of defendants with a criminal history category of VI”).

                                            11
imposed outside [the applicable] time period is evidence of similar, or serious

dissimilar, criminal conduct, the court may consider this information in determining

whether an upward departure is warranted under § 4A1.3.”).

      The district court also noted that it could not “understand” how Joseph

received “a probationary sentence for the child abuse and aggravated assault charge

and conviction,” or for a robbery charge. ROA, Vol. III, at 31. This could also

provide a proper basis for an upward departure. Departures can be justified when

prior lenient sentences result in a lower criminal history category than less lenient

sentences would have. See U.S.S.G. § 4A1.3, cmt. background (“[A] defendant with

an extensive record of serious, assaultive conduct who had received what might now

be considered extremely lenient treatment in the past might have the same criminal

history category as a defendant who had a record of less serious conduct.”).

      Additionally, the district court discussed Joseph’s charge for “armed robbery,

[and] aggravated battery against a household member, [which] was dismissed without

prejudice.” ROA, Vol. III, at 25. The conduct underlying these charges also resulted

in a charge of Aggravated Fleeing a Law Enforcement Officer. See ROA, Vol. II, at

11–12. This, too, could provide a proper basis for an upward departure. Departures

can be justified based on prior similar criminal conduct not accounted for in the

criminal history category. See U.S.S.G. § 4A1.3(a)(2)(E) (stating that “[p]rior

similar adult criminal conduct not resulting in a criminal conviction” can form the

basis for upward departure).

      Therefore, although the district court did not specifically identify each of these

                                           12
reasons for departing upward, its “rationale for increasing [Joseph]’s criminal history

category” was clear, and is supported by the evidence in the record. Robertson, 568

F.3d at 1215; see also United States v. Uscanga-Mora, 562 F.3d 1289, 1295 (10th

Cir. 2009) (“The defendant thus received a sentence merited by the evidence, and we

cannot say—as we would have to in order to find plain error—that, but for the

claimed error, the defendant’s sentence would have been any different.”).

      Even though the district court erred by inadequately explaining its reasons for

departing upward, Joseph cannot establish that the error affected his substantial

rights. He therefore fails to carry his burden under plain-error review.

                                          III

      Because we conclude that Joseph does not establish that either error he asserts

affected his substantial rights, we AFFIRM the judgment of the district court.


                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Circuit Judge




                                          13
