United States Court of Appeals

For the First Circuit

Nos. 00-1675

00-1676

UNITED STATES,

Appellee,

v.

SCOTT R. CHAPMAN,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

 Torruella, Chief Judge,

Cyr, Senior Circuit Judge,

and Stahl, Circuit Judge.

Neal K. Stillman for appellant.

Margaret D. McGaughey, Assistant United States Attorney,

with whom Jay P. McCloskey, United States Attorney, was on

brief, for appellee.

February 27, 2001

1 These numbers differ from the original numbering of the

conditions, as they reflect only those conditions relevant here.

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STAHL, Circuit Judge. These consolidated appeals

result from two sentences imposed upon Scott R. Chapman by the

United States District Court for the District of Maine (Carter,

J.). On appeal, Chapman raises three issues. First, he argues

that it was error to impose his sentences consecutively rather

than concurrently. Second, he disputes the two-level

enhancement to his offense level for more than minimal planning.

Finally, he contends that the imposition of a five-month upward

departure from the sentencing guideline range, levied on the

basis of his excessive criminal history, was unreasonable.

Finding no error in any of these decisions, we affirm.

I. BACKGROUND

At the time of the events relevant to this appeal,

Chapman, a career criminal, was on supervised release following

his most recent incarceration. Among the conditions to which he

was subject were: 1) that he not leave the judicial district

without permission; 2) that he not commit another federal,

state, or local crime; and 3) that he abstain from all drug and

alcohol use and participate in a drug and alcohol therapy

program.1 Chapman violated all three of these conditions within

his first few months of freedom.
2 This extra time served, however, is not relevant to the

determination of his sentences in this case. The Bureau of

Prisons will automatically deduct it from the time he now must

serve for revocation of his supervised release.

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On June 9, 1999, as a result of an error on the part

of the Bureau of Prisons which kept Chapman incarcerated 104

days longer than required, he was released from prison suddenly

and without notice.2 Using the $69 given to him as "gate money"

upon release, he purchased a bus ticket that eventually brought

him to Portland, Maine. After arriving there without funds and

with no place to live, Chapman fortuitously found employment and

housing with John Jollatta, a contractor who gave him work and

allowed him to live at his home.

Shortly after he began work, Chapman, on two separate

occasions, suffered work-related injuries. After his second

injury Chapman was hospitalized. Jollatta visited him at the

hospital and asked him not to file a worker's compensation

claim, offering instead to cover his medical expenses in

exchange. Chapman agreed and, after he was released from the

hospital, moved back in with Jollatta. Thereafter, when

Jollatta did not immediately pay the medical bills, Chapman

became angry and departed Jollatta’s employment and home, taking

with him the company’s business checkbook.
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Chapman had a savings account at People's Heritage

Bank, which he had opened when he first became employed. This

was also Jollatta's bank. On August 2 and 3, 1999, Chapman

engaged in a check kiting scheme using the checks he had stolen

from Jollatta by writing several checks to himself for varying

amounts, and then depositing them to his account. Subsequently,

during the two-day period and at four different branches of the

bank, he either cashed the checks and/or made withdrawals from

the amounts previously deposited into his account at the bank.

He also wrote one check to a retail store. In this way, over

the two-day period, Chapman defrauded People's Heritage of

$11,405.96 before it discovered the scheme.

Chapman was arrested on August 26, 1999, in Montpelier,

Vermont. He attempted to escape from the arresting officers,

but was caught. Subsequently, during a search of his residence,

cocaine and illegal mushrooms were found. On January 18, 2000,

Chapman pled guilty to violating the terms of his supervised

release by committing a new federal crime and was sentenced to

serve an additional 24 months as a result. Chapman does not

appeal this sentence.

On the same day, Chapman also pled guilty to a charge

of bank fraud. The base offense level for this crime was 6.

Three levels were added pursuant to U.S.S.G. § 2F1.1(b)(1)(D)
3 Chapman still appears to believe that he was entitled to

do what he did because Jollatta had not paid his medical bills.

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for the amount of the bank's loss, two levels were added

pursuant to U.S.S.G. § 2F1.1(b)(2) for more than minimal

planning. Finally, and despite Chapman's demonstrated lack of

remorse,3 two levels were subtracted pursuant to U.S.S.G. §

3E1.1(a) for acceptance of responsibility because Chapman had

confessed to the bank fraud charge. This resulted in a final

offense level of 9.

Chapman had an extremely long, continuous, and

sometimes violent criminal history, including burglary while

armed with a .25 caliber handgun. Thirty-three criminal history

points were applied to Chapman as a result of his 13

convictions, as well as two points for committing the instant

offense while on supervised release, and one point because the

offense occurred within two years of his release from custody.

U.S.S.G. § 4A1.1. Chapman's total of 36 criminal history points

was well beyond (nearly triple) the 13 points needed to place

him in Criminal History Category VI, the highest category

reflected in the Guidelines.

The combination of an offense level of 9 and a Criminal

History Category VI resulted in a guideline sentencing range of

21 to 27 months. U.S.S.G. § 5A (Sentencing Table). Pursuant to
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U.S.S.G. § 4A1.3, however, a sentencing judge may depart upward

from a guideline sentencing range where the criminal history

category inadequately reflects "the seriousness of the

defendant's past criminal conduct or the likelihood that the

defendant will commit other crimes." U.S.S.G. § 4A1.3. Because

of Chapman's egregious criminal record, as well as his notable

recidivist tendencies, the district court sentenced him to 32

months for the bank fraud, only a five-month, or 18-19 percent,

upward departure.

Finally, the district court required that Chapman's 24-

month sentence for revocation of supervised release and his 32-

month sentence for bank fraud run consecutively rather than

concurrently, resulting in a total prison term of 56 months.

Chapman appeals the decision to run his sentences consecutively,

the two-level adjustment for more than minimal planning, and the

upward departure from the sentencing guideline range because of

his underrepresented criminal history. None of the other

sentencing determinations is challenged here.

II. CONSECUTIVE SENTENCES

Chapman argues that his sentences for bank fraud and

for revocation of supervised release should have been imposed to

run concurrently and not consecutively. However, Chapman not

only fails to address the relevant guideline, but the argument
4 At the time of our holdings in Gondek and McCarthy, this

identical note was identified as Application Note 4.

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he does make is without merit. He contends that, pursuant to 18

U.S.C. § 3584(a), the district court has the discretion to

impose either concurrent or consecutive sentences, and that in

this case that discretion was abused when the district court did

not consider the mitigating fact that his crime was a result of

his sudden release from prison. We do not agree.

Section 5G1.3 of the Sentencing Guidelines governs

whether a new sentence imposed upon a defendant already subject

to an undischarged term of imprisonment should run concurrently

or consecutively to the existing term. Application Note 6 deals

with revocations:

If the defendant was on federal or state

probation, parole, or supervised release at

the time of the instant offense, and has had

such probation, parole, or supervised

release revoked, the sentence for the

instant offense should be imposed to run

consecutively to the term imposed for the

violation of probation, parole, or

supervised release in order to provide an

incremental penalty for the violation of

probation, parole, or supervised release.

We have held that this application note,4 despite its use of

"should," is mandatory. United States v. Gondek, 65 F.3d 1, 3

(1st cir. 1995); see also United States v. McCarthy, 77 F.3d

522, 539-40 (1st Cir. 1996) ("In cases where a defendant has
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committed a federal offense while on probation, Note 4 expressly

limits a district court's discretion in determining a reasonable

incremental punishment by providing that the court must order

the entire federal sentence to run consecutively to any sentence

imposed upon revocation of probation."). Several other

circuits--nearly all of those addressing the issue--have agreed

with this interpretation. See, e.g., United States v.

Alexander, 100 F.3d 24, 26 (5th Cir. 1996) (holding that

Application Note 6 is "binding on the courts"); United States v.

Bernard, 48 F.3d 427, 430-32 (9th Cir. 1995).

Moreover, and as the district court aptly noted, "as

a matter of fact or policy, the only way to effectively enforce

supervised release is to require that time in addition to

whatever else he is sentenced for is imposed." Otherwise, there

effectively would be no punishment at all for violating the

conditions of his supervised release. We can conceive of no

reason to upset the district court's imposition of consecutive

sentences for the revocation of supervised release and the bank

fraud itself.

III. MORE THAN MINIMAL PLANNING

Chapman next argues that the district court erred in

adjusting his offense level upward for more than minimal

planning pursuant to U.S.S.G. § 2F1.1(b)(2). He contends that
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his actions were impulsive and opportunistic, and thus do not

lend themselves to this enhancement. Even if we grant that his

decision to abscond with the checks and run was spontaneous,

however, the complicated process through which he negotiated the

checks belies his contention of impulsiveness.

We review a district court’s finding of more than

minimal planning for clear error, reversing it only if "we are

left with 'the definite and firm conviction that a mistake has

been committed." United States v. Rust, 976 F.2d 55, 57 (1st

Cir. 1992) (quoting United States v. Vega-Encarnacion, 914 F.2d

20, 24 (1st Cir. 1990)) (vacating a sentence, despite this

standard, where the district judge should have made the upward

adjustment and did not do so); United States v. Gregorio, 956

F.2d 341, 343 (1st Cir. 1992) (upholding the two-level

enhancement).

Application Note 1(f) of § 1B1.1 describes three

circumstances to which the "more than minimal planning"

enhancement applies: 1) where the amount of planning involved

exceeded that which "is typical for commission of the offense in

a simple form;" 2) where the defendant has taken significant

affirmative steps to conceal the offense; and 3) where the

offense involved "repeated acts over a period of time, unless it

is clear that each instance was purely opportune." The
5 Chapman deposited bad checks in different locations in

order to support his withdrawals from the various branches of

amounts that were only briefly supported by these phantom

deposits. Determining the right amounts to deposit and withdraw

as he went along required both planning and basic math. The

government argues that this qualifies as more than minimal

planning. It also reasons that efforts to conceal are

demonstrated by the use of different bank branches (to avoid

calling attention to himself), and finally that the series of

transactions was not "purely opportune."

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government argues, and the district court appears to have

determined, that any one of these three justifications for the

enhancement applies to Chapman's actions because of the

complexity of the scheme.5 While we are not convinced that the

facts here suggest more planning than is typical for bank fraud,

which by its nature requires some sophistication, United States

v. Bean, 18 F.3d 1367, 1370 (7th Cir. 1994), it seems quite

evident that Chapman’s repeated transactions at different bank

branches were not "purely opportune."

"Conduct is 'purely opportune' only if it is spur of

the moment conduct, intended to take advantage of a sudden

opportunity." Rust, 976 F.2d at 57. Webster's Third New

International Dictionary (1986) defines "sudden" as something

that "occur[s] unexpectedly" and "without previous notice," and

which was thus "not foreseen or prepared for," such as a

thundershower on a clear day. Although Chapman obviously took

advantage of having recently obtained his employer's checks, and
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it may seem unlikely that it occurred to him to engage in this

scheme at any time prior to his taking the checks and leaving,

it nonetheless took two days for him to complete the process of

deposits and withdrawals that were the basis of his bank fraud

charge. These acts were not "sudden" in any sense.

Because of the myriad criminal opportunities that can

arise and the differing ways individuals might act upon them, we

need not set forth an exact period of time, after an opportunity

presents itself, within which one must act in order to have

actions defined as "purely opportune." Chapman's actions were

not "purely opportune," and the enhancement for more than

minimal planning was not clearly erroneous.

IV. UPWARD DEPARTURE

Chapman next argues that it was error for the district

court to depart upward from the guideline sentencing range on

the basis of his long criminal history. U.S.S.G. § 4A1.3. He

contends that the district court did not supply an adequate

rationale for its decision to do so, but rather made a

mechanical leap through the sentencing grid on the basis of

numbers alone. Having reviewed the sentencing transcript, we

find this contention to be without merit.

Section 4A1.3 provides, in pertinent part: "If reliable

information indicates that the criminal history category does
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not adequately reflect the seriousness of the defendant's past

criminal conduct or the likelihood that the defendant will

commit other crimes, the court may consider imposing a sentence

departing from the otherwise applicable guideline range." In

most cases, this means that the court should apply the

sentencing guideline range that would result from the next

higher criminal history category, or from whichever category the

defendant best fits after considering the seriousness of his

cumulative offenses. U.S.S.G. § 4A1.3. Because Category VI is

the highest contemplated by the grid, the Commission addressed

this problem in the following way:

[T]here may, on occasion, be a case of an

egregious, serious criminal record in which

even the guideline range for Criminal

History Category VI is not adequate to

reflect the seriousness of the defendant's

criminal history. In such a case, a

departure above the guideline range for a

defendant with Criminal History Category VI

may be warranted. In determining whether an

upward departure from Criminal History

Category VI is warranted, the court should

consider 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. . . .

Where the court determines that the extent

and nature of the defendant's criminal

history, taken together, are sufficient to

warrant 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
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History Category VI until it finds a

guideline range appropriate to the case.

U.S.S.G. § 4A1.3. In other words, when the court cannot

increase the criminal history category (because there is none

higher), but would otherwise be justified in so doing, it may

instead adjust upward the offense level in order to arrive at an

appropriate sentence. 

Although Chapman devotes barely over one page in his

brief to this entire issue, and does not cite to the guideline

language, his arguments appear to be based primarily on the

above quoted text. In essence, he contends that the court

should have considered the nature and context of his crimes, and

not just their number.

We have consistently followed a tripartite methodology

for analyzing upward departures originally chiseled in United

States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir. 1989). That

methodology requires that we apply a different standard of

review to each step in the process. We look first at the legal

justification for departure, in the abstract, using a de novo

standard. Id. Secondly, and assuming that we are satisfied

with the district court's interpretation of the law as

considered in step one, we look at the factual record to

ascertain whether there are circumstances sufficient to warrant

the departure in the case at hand. Id. Because this is a
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question of fact, we leave the district court's determination of

the matter untouched absent clear error. Id. Assuming, after

the first two steps, that we are still satisfied with the

conclusions reached below, we look finally at the extent of the

departure. Id. The standard we use at this stage is one of

reasonableness. Id.

The first two prongs of the test are quite simple in

the present case, and thus may be dispensed with quickly. Based

on the section of the Sentencing Guidelines discussed above,

there is no question that an egregious criminal history, not

properly accounted for under the Guideline structure, is a

proper legal ground for an upward departure. It is also quite

clear from the record that Chapman's criminal history is indeed

overwhelming. Not only did he have 36 criminal history points

(which, on a scale that goes up to 13, certainly is extreme),

but his recidivism was nearly always immediate, and some of his

crimes were violent (burglary, which is deemed a violent crime

by the Guidelines because of the potential for injury if there

is an encounter with the resident). The district court noted

that Chapman's was "amazingly one of the worst record[s] I have

seen in recent years," and we defer to that assessment in light

of the district court's more direct experience with this

defendant and those with whom he is now compared.
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Chapman’s real point of contention in this appeal goes

to the third Diaz-Villafane prong. Under the Guidelines, a

sentencing judge is expected to articulate some rationale for

both the departure itself and the extent of that departure.

United States v. Ocasio, 914 F.2d 330, 336 (1st Cir. 1990). As

discussed above, Chapman's sentence of 32 months reflects a

five-month departure from the 21-27 month guideline range.

Chapman contends that the district court made a mechanical move

through the guideline grid based purely on his criminal history

score, but without considering the context of his past behavior

and without providing adequate reasoning for its decision to add

five months specifically.

"Reasonableness is a concept, not a constant," id., and

"[t]here is no scientifically precise litmus test by which the

reasonableness of departure decisions can be resolved," id. at

337. Because we cannot create bright-line rules for this aspect

of the sentencing process, we give substantial leeway to

district courts in their efforts to determine the proper

sentence for a particular defendant. See Diaz-Villafane, 874

F.2d at 49-50 ("This third step involves what is

quintessentially a judgment call . . . . We will not lightly

disturb decisions to depart, or not, or related decisions

implicating degrees of departure."). Although some
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justification is required, "[w]e do not think that a district

court must dissect its departure decision, explaining in

mathematical or pseudo-mathematical terms each microscopic

choice made in arriving at the precise sentence." United States

v. Emery, 991 F.2d 907, 913 (1st Cir. 1993). Indeed, the

district court's reasoning for whether to depart often can be

applied, without further discussion, to the determination of the

extent of that departure, at least in § 4A1.3 cases. Id.

("[W]hen the court has provided a reasoned justification for its

decision to depart, and that statement constitutes an adequate

summary from which an appellate tribunal can gauge the

reasonableness of the departure's extent, it has no obligation

to go further and attempt to quantify the impact of each

incremental factor on the departure sentence.").

This case is similar, on this particular issue, to

United States v. Black, 78 F.3d 1, 8-9 (1st Cir. 1996), in which

we dealt with the following circumstances:

Black says that the district court acted

mechanically, imposing the departure

basically because Black had far more points

than the minimum for category VI. This is

not a complete description of what happened:

the district judge mentioned the point

differential but followed this with a

lengthy recitation of Black's actual

criminal history, which we have already

quoted.
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This is precisely what happened in the instant case. The

district court noted the excessive criminal history points, but

also expressed concern about the violent nature of burglaries,

as well as Chapman's consistent recidivism. As we stated in

Black, "we will not remand for an explanation that is so clearly

implicit in what the district court found." Id. at 9. Thus,

the district court provided adequate reasoning for us to

consider in determining the reasonableness of the departure's

extent.

The extent of the departure in this case is relatively

minor. Chapman's sentence was increased by 5 months, or

approximately eighteen percent. Compared with our prior cases

affirming upward departures, the upward departure was modest.

See, e.g., United States v. Brewster, 127 F.3d 22, 31 (1st Cir.

1997) (affirming an upward departure of 22 months, or about 50%,

on the basis of uncounted prior convictions and uncharged

domestic violence); United States v. Hardy, 99 F.3d 1242, 1253

(1st Cir. 1996) (affirming a 300% upward departure); Black, 78

F.3d at 7-8 (affirming an upward departure of 16 months, or

about 30%, on the basis of a criminal history score of 21);

United States v. Doe, 18 F.3d 41, 48-49 (1st Cir. 1994)

(affirming an upward departure of 45 months, or about 167%);

Emery, 991 F.2d at 914 (affirming an upward departure of 21
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months, or about 41%, on the basis of a criminal history score

of 20); United States v. Brown, 899 F.2d 94, 96 (1st Cir. 1990)

(affirming an upward departure of 12 months, or about 133%, on

the basis of a criminal history score of 20); Diaz-Villafane,

874 F.2d at 51-52 (affirming an upward departure of 87 months,

or 264%).

We find no error in the court’s upward departure

determination.

V. CONCLUSION

For the foregoing reasons, the district court's

sentencing decisions are affirmed.