1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 00-30484

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PETER TOOGOOD,

Defendant-Appellant.

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No. 00-30946

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN WILLIAMSON,

Defendant-Appellant.

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Appeals from the United States District Court

for the Eastern District of Louisiana

(99-CR-389-1-J)

_________________________________________________________________ August 24, 2001

Before JOLLY, SMITH, and WIENER, Circuit Judges.* Pursuant t o 5 TH C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

2 E. GRADY JOLLY, Circuit Judge: *

Peter Toogood and his uncle, J ohn Williamson, were both

indicted on charges of unlawfully transporting in interstate

commerce more than $5,000 knowing that it was stolen or converted

by fraud. Toogood and Williamson both pleaded guilty pursuant to

a written plea agreement and now ch allenge the district court’s

decision to depart upward in sentencing both defendants. Finding

no error in the upward departure given both defendants in this

case, we AFFIRM.

I

Toogood and Williamson engaged in a lengthy an d concerted

effort to defraud the 83-year old female victim in this case. Each

defendant appeared at the victim’s home on multiple occasions.

They posed as repairmen, fiddled with her fuse box, and then told

her that they had fixed the problems. They demanded $40,000 on one

occasion and $20,000 on another for these “repairs.” To meet their

demands, the victim went with them to various banks and financial

institutions, where they cajoled or forced her to make withdrawals.

On another occasion, the defendants purchased two watches for

$31,550 on th e victim’s credit card and entered the victim’s

residence after the UPS package containing the watches arrived at

her home. They ultimately defrauded her out of approximately3

$101,000. After the scheme was uncovered, the victim told the

probation officer that she had been afraid to report what had

happened out of fear for her life.

Toogood’s presentence report (“PSR”) identified the following

factors as possibly warranting an upward departure: The loss did

not fully capture the harmfulness of the conduct, because it did

not take into consideration the interest that continued to mount on

the victim’s credit card, the interest that could have been earned

on her savings account but for Toogood’s conduct, or the impact of

psychological injury caused by the offensive conduct. The PSR also

noted that a departure was allowed on a finding of aggravating

circumstances of a kind or to a degree not adequately taken into

consideration by the guidelines. The PSR calculated an offense

l evel of 13 and a criminal history category of III for Toogood,

corresponding to a guideline range of 18 to 24 months’

imprisonment. The district court denied Toogood’s objection to an

upward departure and sentenced him to 48 months.

Williamson’s PSR set a total offense level of 13, with a

criminal history category of IV, for a guideline range of 24 to 30

months’ imprisonment. Williamson’s PSR identified the same factors

warranting an upward departure, plus the additional factor that his

criminal history did not adequately reflect the seriousness of his

past criminal conduct or the likelihood that he would commit other

crimes. The district court recounted Williamson’s lengthy criminal4

history, noting that the instant offense was “far from the first

time” that he had “scam[med] old ladies.” The court sua sponte

departed upward pursuant to § 2B.1. and § 5K2.3 and sentenced

Williamson to 60 months’ imprisonment.

II

Whether a factor is a permissible basis for depa rture under

any circumstances is a question of law. U nited States v.

Threadgill

, 172 F.3d 357, 375 (5th Cir. 1999). The district

court’s resolution of whether the departure factors were sufficient

to remove the case from the heartland of the applicable guideline

must be accorded “substantial defer ence” because of the district

court’s “special competence” in determini ng what is ordinary or

unusual. I d

. at 376. Likewise, this court generally defers to the

sentencing court’s superior “feel ” for the case is determining

whether the degree of departure was reasonable. United States v.

Lara

, 975 F.2d 1120, 1125 n.3 (5th Cir. 1992)(citatio n omitted).

This court “will not lightly disturb

. . . decisions implicating

degrees of departure.” Id

.

T oogood and Williamson argue that the district cour t

improperly relied upon its own dissatisfaction with the applicable

sentencing range to upwardly depa rt. S ee United States v.

McDowell

, 109 F.3d 214, 219 (5th Cir. 1997). To the extent that

the district court may have relied upon any impermissible basis of

departure, the court’s error would be harmless if the district5

court would have imposed the same sentence even in the absence of

the error--that is, if another permissible basis of departure

existed. S ee United States v. Rogers

, 126 F.3d 655, 661 (5th Cir.

1997)(citation omitted).

In Williamson’s cas e, the district court had as a separate

basis for departu re the seriousness of his past criminal conduct

and likelihood of recidivism that was not adequately reflected in

his criminal history category. The court found that Williamson had

made it “his business

. . . to go around scamming people” and that

he had previously defrauded a 92-year old woman out of $36,900.

Because a finding that the criminal history category of a defendant

fails to represent the seriousness of a defendant’s past criminal

conduct is a permissi ble factor justifying upward departure, we

will not interfere with Williamson’s sentence under the guidelines.

See United States v. Laury , 985 F.2d 1293, 1310 (5th Cir. 1993);

U.S.S.G. § 4A1.3 (permitting upward departure if “reliable

information indicates that the criminal history category does not

adequately reflect the seriousness of the defendant’s past criminal

conduct or the likelihood that the defendant will commit other

crimes.”).

Upwardly departing in Toogood’s case, the cou rt relied upon

the psychological injury under U.S.S.G. § 5K2.3 and the fact that

the loss determination did not fully capture the harmfulness of the

condu ct under § 2B1.1. Although it is true that interest income6

from the defrauded funds should not be considered as loss in this

case under the guidelines, United States v. Henderson

, 19 F.3d 917,

928-29 (5th Cir. 1994), the district court noted that the loss

attributed to the defe ndants’ conduct did not take into

consideration the $300 a month in interest that was being charged

to the victim’s credit account after the defendants had “raided her

savings accounts.” In addition, the district court had before it

evidence of psychological harm in this case, where the 83-year old

victim was defrauded by the defendants on numerous occasions over

a two-month period of time in multiple hand-to-hand transactions.

This non-monetary harm can be considered by the district court in

departing upward under the guidelines, especially when

circumstances make the harm “unusual.” S ee United States v. Wells

,

101 F.3d 370, 374-75 (5th Cir. 1996); United States v. Anderson

, 5

F.3d 795 (5th Cir. 1993). Given the applicable guidelines and the

evidence of harm before the district court, and because we afford

the “greatest deference” and “will not lightly disturb” the

district court’s determination of whether an applicable factor is

sufficient to warrant upward departure, the judgment of sentence as

to both Toogood and Williamson is

A F F I R M E D.