In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3670

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RALPH WAYNE ANGLE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 98 CR 37—Rudy Lozano, Judge.

____________

ARGUED SEPTEMBER 17, 2002—DECIDED JANUARY 10, 2003

____________

Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Ralph Wayne Angle was convicted of receiving and possessing child pornography and

using interstate commerce to entice a child under 18 years

old to engage in a sexual act. See 18 U.S.C. §§ 2252(a),

2422(b). On appeal this court affirmed the conviction but

vacated his sentence. See United States v. Angle, 234 F.3d

326, 347 (7th Cir. 2000) (“Angle I”). On remand, the district

court sentenced Angle to 325 months, finding that he was

likely to repeat his crimes and was more comparable to

a career criminal due to his past history. Angle appeals. Because the district court did not make sufficient reliability findings and did not explain why Angle was more comparable to a career criminal than any other criminal, we

vacate the sentence and remand for resentencing.
2 No. 01-3670

1 The district court sentenced Angle to concurrent prison terms

of 325 months on Count I (receiving child pornography) and 120

months on each of Counts II (possessing child pornography) and

III (soliciting a minor).

2 Angle’s sentence was increased from 151-188 months to 325

months.

3 It is unclear whether the district court imposed a five-level

enhancement and an upward departure or simply imposed a fivelevel upward departure to Angle’s baseline criminal history

category and his offense level. Angle argues that the court imposed an enhancement and an upward departure, while the

government argues that the district court simply imposed an

upward departure. Because the court made no specific findings

concerning an enhancement, we assume that the district court

imposed a five-level upward departure.

I. BACKGROUND

Angle was first sentenced to 325 months1

 for the three

counts related to child pornography and solicitation in

1999. When the district court initially sentenced Angle, it

imposed several enhancements and an upward departure

to Angle’s baseline sentence.2

 See Angle I, 234 F.3d at

333, 344-46. The district court reasoned that criminal history category II did not adequately reflect the seriousness

of Angle’s criminal behavior and there was a likelihood that

he would commit further crimes. Id. at 333. Angle appealed.

In Angle I, we vacated the sentence for receiving child

pornography and remanded for resentencing, finding

that the district court neglected to explain why Angle’s

criminal history was more comparable to the criminal

histories found in a higher category than category II. Id.

at 344. On remand, the district court imposed a five-level

upward departure without ruling on the reliability of

uncorroborated molestation allegations and did not explain why Angle’s criminal history was more comparable

to category VI, a career criminal.3

 Accordingly, we vacate

and remand for resentencing.
No. 01-3670 3

II. ANALYSIS

When examining the district court’s imposition of an

upward departure, we review the factual findings underlying the departure for clear error and whether the degree

of departure is linked to the structure of the sentencing

guidelines for abuse of discretion. See United States v.

Cross, 289 F.3d 476, 478 (7th Cir. 2002); United States v.

Peterson, 256 F.3d 612, 614 (7th Cir. 2001). Although

deferentially reviewed, the district court must explain its

departure by assigning “some value” for each ground of

departure. See United States v. Tai, 994 F.2d 1204, 1214

(7th Cir. 1993) (the court must explain factors in defendant’s history not accounted for by the guidelines that

make the defendant more comparable to a criminal in a

higher category and then assign some value to each

ground of departure).

The sentencing guidelines authorize an upward departure when reliable evidence indicates that the criminal

history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or there is

a high likelihood of recidivism. U.S.S.G. § 4A1.3. In this

case, the government offered evidence in the presentence

report that Angle had sex with a fourteen-year-old boy

in Georgia, possessed child pornography from Mexico, sent

a Valentine’s Day card to a child he met at a gym, took

a shower with an unrelated twelve-year-old boy, and molested numerous children. The district court did not make

findings regarding the reliability of this evidence. Instead,

the court simply relied on the evidence submitted including the uncorroborated allegations that Angle molested

numerous children—his girlfriend’s daughter, his niece

and nephew, and children in Mexico. The only evidence

offered regarding Angle’s molestation of family members

was a letter from the wife of Angle’s nephew. The letter

described these incidents of molestation by Angle but

did not offer any specific details about the alleged incident.
4 No. 01-3670

Moreover, the only evidence concerning Angle’s behavior

in Mexico was a videotape of children committing lewd

acts in which Angle did not appear. Because these alleged

incidents of molestation are uncorroborated, the district

court was required to make specific findings regarding

the reliability of the evidence before it used the evidence

to support an upward departure. See United States v.

Ruffin, 997 F.2d 343, 346 (7th Cir. 1993). Without such

findings none of the evidence may be used to support the

upward departure. Id.; U.S.S.G. § 4A1.3.

Furthermore, we have ruled on several occasions that

when the district court applies an upward departure it

must analogize the factors it identified as grounds for departure to similar offenses contained within the guidelines

and link the factors to the degree of the departure. See

Cross, 289 F.3d at 478; Peterson, 256 F.3d at 614; Tai,

994 F.2d at 1214. However, the district court did not assign “some value” for each ground of departure. See Tai,

994 F.2d at 1214. Instead, the district court found that

Angle was more comparable to a category VI criminal

without discussing whether Angle had committed three

crimes of violence, a required element of a category VI

criminal. Id. Additionally, the court did not explain why

Angle was more comparable to a category VI criminal than

a category II or III criminal. It is not enough that Angle

meets most of the criteria for a career criminal; the court

must employ a step-by-step process when imposing an

upward departure to determine the most comparable

criminal history category that applies to the defendant.

See United States v. Croom, 50 F.3d 433, 435 (7th Cir.

1995); Ruffin, 997 F.2d at 346. Because the court did not

follow the step-by-step process in imposing the upward

departure or make reliability findings about the uncorroborated evidence, this case must be remanded. See

Cross, 289 F.3d at 478-79; Tai, 994 F.2d at 1214.
No. 01-3670 5

III. CONCLUSION

For the foregoing reasons, we VACATE Angle’s sentence

and REMAND the case for further proceedings consistent

with this opinion. Circuit Rule 36 shall apply on remand.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-10-03