* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 5 2003 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. WILLIE EUGENE WALKER, a/k/a Ernest Ward, Defendant - Appellant. No. 02-5120 D.C. No. 00-CR-16-C (N.D. Oklahoma)



### ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

Willie Eugene Walker pled guilty to one count of be ing a felon in possession of a firearm, for which he was originall y sentenced to sixty-three months in prison. The district court arrived at th is sentence by departing upward1 We admonish both defense and government counsel fo r violating 10th Cir.

R. 28.2(A)(2) and 28.2(B) by failing to attach to their briefs a copy of the oral transcript of the district court’s ruling. -2- seven levels. On his first appeal, we affirmed the district court’s determination that defendant’s prior criminal history removes himfrom the “heartland” of criminal history category VI, but remanded for a mo re specific articulation of the district court’s methodology in determining the deg ree to which it departed upward. United States v. Walker , 284 F.3d 1169 (10th Cir. 2002). On remand, the district court again departed upward, imposing the same sentence of sixtythree months (but departing upward only six levels this time), and giving a precise explanation of the manner in which it calculated th is departure. 1 Because we find the district court’s methodology and degree of departure to be reasonable, we affirm. At resentencing, the district court reasoned as fol lows: In determining the degree of departure, the Court c onsiders three reference points within the guidelines: First, the increments between guideline ranges and the point value assigned to pa st crimes and the way they move upward through the criminal history c ategories have been examined to provide for an appropriate paralle l sentence. Secondly, the Court has studied the career offender enhancement found in Section 4B1.1 for a proper dep arture range analogy. Finally, the Court looks to existing guidelines enh ancements quantifying egregious or repetitive conduct. The defendant’s calculated offense level is 12. Th e sentencing table promulgated by the sentencing guidelines prov ides sentencing ranges for an offense level of 12 of 10 to 16 month s in Criminal-3-

History Category I for a defendant with no criminal history to a category of 30-37 months for the most serious crimi nal history, a Category VI. Thirteen points are necessary for placement in Cate gory VI. The defendant has accumulated no less than 34 point s, more than two and a half times the points needed for Category VI. To reach a proposed departure range, the Court doubles the off ense-level-12, Category-VI range of 30 to 37 months to a range 60- 74 months, moving horizontally along the sentencing grid to re ach a hypothetical criminal history category. The court reaches this hypothetical range recognizing that both the points required to graduate to a higher category and the criminal history category ranges s hould, based on the structure of the guidelines, expand as the cate gories increase. The Court considers this extrapolation a reasonable departure estimate, making use of the structure of the guidel ines as considered in U.S. v. Lowe , a Tenth Circuit case. The most analogous range to the 60-74 range in Cate gory VI is 57-71 months, equating to a six-point increase fromoffense level 12. The Court notes this calculation is consistent witha finding by the Seventh Circuit in U.S. v. McKinley , 84 F.2d 904, where the circuit concluded that an appropriate methodology for departure from Category VI is to add one offense level for every t hree criminal history points above 15. The defendant here has 34 points, less 15 equals 19 , divided by 3 is a 6.3-point increase. This formula is consist ent with the Seventh Circuit’s method of departing above Category VI pri or to the ‘92 amendments to section – to paragraph 4A1.3, which i s tied to the structure and range patterns of the guidelines. Th e Seventh Circuit notes that criminal history category is increased p roportionally 10 percent to 15 percent from one category to another. Using offense level 12 and four points per categoryand a 12 percent increase to arrive at each hypothetical cat egory approximately 65 months is reached. The Court also reviewed 4B1.1, the career offender enhancement, for guidance . . . .This Court is full y cognizant of the fact that the defendant does not qualify as a caree r offender because neither the instant convictions nor his criminal pa st involves violent or controlled substance offenses. Nonetheless, . . . [t]he Court believes the career offender guidelines can be inst ructive if moderated to conform to the defendant’s history. T he Court notes-4-

that had the defendant been a guideline career offe nder, the offense level would be 24, a 12-point increase over his cal culated offense level. The Court also recognizes that 4B1.1 overst ates the risk of this defendant. The Court notes, however, that 4B1 .1 can be invoked on a defendant having but two convictions and two c riminal history points. Considering this, the Court views the defendant’s 3 4-point criminal history as particularly egregious in comparison to what qualifies for a 4B1.1 enhancement under the prior c riminal history component of that section. A six-point increase, h alf that assigned a repeat violent or drug offender, is a reasonable po int increase. Finally, to a lesser degree, the Court relies on re view of offense level enhancements for egregious conduct an d a pattern of misconduct to assist in reaching the departure leve l. The Court notes that 2A2.2(b)(3)(C) provides for a six-point increase for bodily injury during an assault. 2B3. 1(b)(2) and (b)(3)(C) increases the offense level six and sevenpoints respectively for firearm use and injury during a ro bbery. 2G2.2(b)(4) adds five levels based on a pattern of aggravated s exual activity. And 2K2.1(a)(2) mandates a ten-point increase for s imilar criminal conduct and the enhancement is triggered by just tw o prior convictions. In general, the guidelines call for an offense leve l enhancement of five and ten points for abhorrent orrepeat conduct. The Court believes that an increase at the low end of this five to tenpoint enhancement range is reasonable based upon th is defendant’s history. Based on the analysis, guided by the methodology, s tructure, and sentencing range patterns contained in the guid elines, the Court, as directed by 4A1.3, increases the offense level b y six points to offense level 18 and Criminal History Category VI f or a departure range of 57-71 months. Rec. Vol. III at 15-19. A “district court must justify the extent of its de parture by a reasonable methodology hitched to the guidelines.” United States v. Goldberg , 295 F.3d 1133, 1139 (10th Cir. 2002). The district court us ed three methods of analysis,-5-

each one hitched to the guidelines, to ensure that it reached the correct degree of departure. Not only were these methods of analysis hitched to the guidelines, but they were supported by case law. See United States v. Lowe , 106 F.3d 1498 (10th Cir. 1997); United States v. McKinley , 84 F.3d 904 (7th Cir. 1996). We review with deference the district court’s degre e of departure for reasonableness. See United States v. Collins , 122 F.3d 1297, 1302 (10th Cir. 1997). In light of the district court’s careful de monstration of the various ways in which the calculation of its degree of departure wa s hitched to the guidelines, and in light of the deference we afford the sentencing court, we find the explanation on remand sufficient and the ultimate determination reasonable. Accordingly we AFFIRM.
ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge