The H onorable Michael J. Melloy, Chief United States District Judge for th e 1 Northern District of Iowa, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4222

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Timothy D. Casey, * * Appellant. *

___________ Submitted: May 12, 1998 Filed: October 21, 1998

___________ Before BEAM and MURPHY, Circuit Judges, and MELLOY , District Judge. 1

___________ BEAM, Circuit Judge. Timothy D. Casey appeals his conviction and se ntence. Casey entered a plea of guilty to one count of bank the ft; two counts of counterfeiting and one count of access de vice fraud. He contends that the district court erred in sentencing him under th e guideline applicabl e to burglary instead of that applicable to larceny. We reverse and remand.He w as also arrested for state drug offenses and for the murder of his forme r 2 wife. Those charges have no relevance to this action. -2- I. BACKGROUND
The Sec ret Service and the FBI investigated ATM thefts, credit card fraud and counterfeiting activities in the Little Rock , Arkansas, area. Because Casey worked for a property management company that managed banks, he was familiar with dail y operations of certain banks and ATM machines; had access to ATM m achine inner box numbers; and had keys to locks in the banks. Casey entered three bank branches on three occ asions in July and August 1996 and used a screwdriver to open the backs of ATM machines . At one bank he obtained $140, at the second bank he obtaine d $24,000, and at the third bank he was unsuccessful. In October 1996, a friend of Casey's obta ined a computer scanner and produced $5,000 i n counterfeit $100 bills. Casey attempted to pass some of the bills at tw o establ ishments. In January 1997, Casey, through a friend, obtained the credit car d numbers of customers of the friend's employer. Casey purchased a Sony Play Station and attempted to purchase a laptop computer with one of the credit card numbers

. Casey's residence was searched pursuant to a federal warrant and he was arrested. He 2
was charged with one count of bank theft in violation of 18 U.S.C. § 2113(b); tw o counts of counterfeiting in violation of 18 U.S.C. § 472; and one cou nt of access device fraud in violation of

18 U.S.C. § 1029(a)(2) and (b)(1). He entered a plea of guilty to each of those counts. No plea agreement was involved.
In its Presentence Investigation Report (PSR), the probation office initiall y reco mmended

that Casey's offenses be grouped together under United State s Sentencing Guidelines Manual § 3D1.1. Tha t recommendation would have resulted in a sentence of six to twelve months. The government objected and moved for an-3-

upward departure. It contended that a departure was warranted because grouping the various counts resulted in no incremental punishment for Casey. In other words, the government

argued, although Casey had committed seven crimes in eight months, he would be sentenced as though he committed only the bank theft.
The district court declined to depart upward, instead stating that the bank theft should pr operly be viewed as a burglary, an offense that would not be grouped wit h counte rfeiting and fraud under section 3D1.1. The government agreed, Casey wa s given an opportunity to respond, and the probation office was directed to prepar e another recommendation. Casey later moved to w ithdraw his plea, but the motion was denied. Casey was sentenced to eighteen months imprisonment. On appeal, Casey contends that the district co urt misapplied the guidelines. He argues that the court erred in applying a different guideline section than the one most applicable to the offense of conviction.
II. DISCUSSION We review the sentencing court 's factual determinations for clear error while its interpretation of the Sentenci ng Guidelines are subject to de novo review. See United States v. Larson , 110 F.3d 620, 627 (8th Cir. 1997). Resolution of this appeal requires an unde rstanding of the structure of the Sentencing Guidelines. The first step i n application of the guidelines i s determining which offense guideline section covers the offense of conviction. See U.S.S.G. § 1B1.2(a); see also United States v. Street , 6 6 F.3d 969, 979 (8th Cir. 1995). The offense guideline section is the foundation of the sent ence. See United States v. Saavedra , 148 F.3d 1311, 1314 (11th Cir. 1998)

. Because it channels the remainder of the sentencing process, selection of the correc t offense guideline section is critically important. Id. In order to correctly determine the applica ble offense guideline, a sentencing court must identify "the offense guidelin e section in Chapter Two (Offense Conduct) most applicable to the offense ofFor

example, Casey was charged with violating 18 U.S.C. § 2113(b). I n 3 Appendix A, that statute is cross referenced to U.S.S. G. § 2B1.1 (theft, embezzlement, receipt of stolen property , and property destruction). See U.S.S.G. App. A. Burglary is a violation of 18 U.S.C. §§ 2113(a), 2115, 2117, and 2118(b) and is cross referenced to U.S.S.G. § 2B2.1 (burglary and trespass). See U.S.S.G. App. A. -4- conviction." U.S.S.G. § 1B1.2(a). The offense of convic tion is defined as "the offense cond uct charged in the count of the indictment or information of which the defendant was convicted." Id. The sentencing court is then directed to "use the guideline section from Chapter Two most applicable to the offense of convicti on" and advised that "[t]he Statut ory Index (Appendix A) provides a listing to assist in this determination. " U.S.S. G. § 1B1.2, comment. (n.1). That listing cross-references federal statutor y offenses to the various guideline sections. See U.S.S.G. App. A. 3
There is one limited exception to the general rule that the offense conduct fo r guideline purp oses is that charged in the indictment: " Provided , however, in the case of a plea agreement (written or made orally on the record) containing a stipulation that specifically establishes a more serious offense than the offense of conviction, determine the offense guideline section in Chapter Two most applicable to the stipulated offense." U.S.S.G. § 1B1.2(a). In reference to that limited exception, Appendix A furthe r provides: "If, in an atypical case, the guideline section indicated for the statute o f conviction is inappropriate because of the particular conduct involved, use the guideline section most applicable to the nature of the offense conduct charged in the count o f which the defendant was convicted. ( See § 1B1.2)." The government contends that the language in the Appendix A is authority for the proposition that th e sentencing court is free to apply a guideline section other than that applicable to the offense of convictio n in two instances: (1) when a defendant has stipulated to a more serious offense; and (2) when the case is "atypical." Th e government

contends that the district court properly sentenced Casey under either or both of these excep tions. Casey contends, however, that the language in Appendix A merely refers b ack to the "stipulation" exception in section 1B1.2 and does not create-5-

an "atypi cal case" exception. Casey contends that he has not stipulated to conduc t amounting to burglary.
We need not decide whether Appendix A indeed creates an "atypical case " exception, because we find this is not an atypical case. The exception described i n Ap pendix A should "cover those cases, probably few in number, where the conduc t constitu ting the offense of conviction also constitutes another, more serious offense , thereby rendering the offense conduct not typical of the usual means of committing the offense of conviction." United States v. Elefant , 999 F.2d 674, 677 (2d Cir. 1993)

. Example s of such atypical cases are theft of government property that was more akin to obstruction of justice, see id. ; property damage involving reckless disregard fo r human life, see United States v. Daniels , 948 F.2d 1033, 1036 (6th Cir. 1991); an d fraud with counterfeit Social Security cards more a ptly sentenced as trafficking in false natural ization documents, see United States v. Kuku , 129 F.3d 1435, 1439 (11th Cir. 1997), cert . denied , 118 S. Ct. 2071 (1998). The only unusual circumstance in thi s case is that the prosecutor charged the defendant under, and exacted a guilty plea to, a criminal statute having a less harsh punishment than he might have.
We thus do not interpret the "atypical case" exception, if it exists, to mean that whenever a defendant's total criminal conduct i ncludes some acts that would constitute an o ffense more serious than the offense of conviction, the guideline for the mor e serious offense may be used. See Elef ant , 999 F.2d at 677. To account for such more serious conduct, the Sentencing Guidelines unquestionably allow the sentencing judge to consider conduct from uncharged or dismissed counts for certain purposes. Se e United States v. Har

ris , 70 F.3d 1001, 1003 (8th Cir. 1995). Such conduct can factor into the offense l evel as a specific offense characteristic (including a victim-related or role-in-the-offense adjustment), see id. ; as " relevant conduct" under section 1B1.3, see United States v. Galloway , 976 F.2d 414, 422-24 (8th Cir . 1992) (en banc); as conduct jus tifying the use of a more serious criminal history category under section 4A1.3(e), see Harris , 70 F.3d at 1003-04; or as an aggravating circumstance warranting an-6-

upw ard departure under 18 U.S.C. § 3553(b), see United States v. Washington , 10 9 F.3d 459, 462-63 (8th Cir. 1997). We find no stipulation by Casey that would justify application of the proviso to se ction 1B1.2. He merely assented in court to the prosecution's version of the facts

. That recitation of facts did not i nclude conduct that could be called burglary. The fact that the PSR outlined facts which could arguably amount to burglary, and that Casey didnot object, cannot be equated with a stipulation. Accordingly, under the facts of this case, we find that the district court erred in sentencing Casey for burglary.
III. CONCLUSION
We rever se and remand for proceedings consistent with this opinion. W e express no opinion on the propriety of an upward departure. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.