* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3 

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

### DEC 28 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-1124

v. (D. Colorado) JOSE A. CARREON-ORTEGA,

Defendant - Appellant. (D.C. No. 97-CR-288-S)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

On October 31, 1997, Jose A. Carreon-Ortega enteredinto a plea agreement under which he agreed to plead guilty to illegally re-entering the United States in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). O n March 27, 1998, at a subsequent sentencing hearing, Carreon-Ortega was s entenced to a term of 71 months imprisonment for his offense. In imposing this sentence, the district court departed upward from the applicable range dictated by federal sentencing guidelines. The sole issue presented in this appea l is whether the district court erred by departing from the guideline range. For t he reasons discussed below, we affirm the decision of the district court.

BACKGROUND Carreon-Ortega is a citizen of Mexico. In 1988, wh ile in Colorado, he was convicted of disturbing the peace and shoplifting. For these offenses, he was fined and released (although the fines weren’t paid until 1994, and in 1989 he had a warrant issued for his arrest). In 1988 and 1989 , Carreon-Ortega engaged in a series of criminal acts against a woman and her you ng children. On July 18, 1988, the woman left her children in Carreon-Ortega ’s care for a short time while she went out. During the time the woman was gone, Carreon-Ortega sexually abused the woman’s three young daughters. Later th at same year, in September 1988, Carreon-Ortega “pushed his way into the victi m’s trailer and stole her-3-

wallet containing $170.” Presentence Investigation Report, R. Supp. Vol. 1, at 7. In December of that same year, he and two companion s accosted the woman from behind on a street and stole her purse, which conta ined $100 in cash and $300 in food stamps. The very next day, Carreon-Ortega thr ew an object through the woman’s trailer window, and was heard to state “I’m going to get you.” Id. at 8. In March 1989, he and one companion again accosted the woman on a street and took her bag, this time containing $250 in cash. F or this series of offenses, Carreon-Ortega was charged with three counts of sexual assault of a child, one count of burglary, one count of robbery, three coun ts of misdemeanor theft, one count of intimidating a witness, and one count of m isdemeanor harassment. On November 8, 1990, he entered into a plea agreeme nt, under which he pled guilty to one felony count of sexual assault o f a child, three separate counts of misdemeanor theft, and one count of misdemeanor harassment. He was sentenced to four years’ imprisonment on the sexual abuse charge, and to six months’ imprisonment on each of the misdemeanor charges. The sentences ran concurrently, and Carreon-Ortega served his time in prison. Upon his release from prison, he was deported to Mexico on January 6 , 1994. On October 13, 1994, a man by the name of Jose Carr eon-Ortega was arrested in Denver, based on the two outstanding warrants for failure to pay the fines related to the 1988 disturbing the peace and shoplifting convictions. The-4-

man arrested in Denver paid the outstanding fines. However, Carreon-Ortega disputes that he was the man arrested in Denver in October 1994 and claims that he was still in Mexico at that time. If the man ar rested really was the Jose Carreon-Ortega who is the defendant in this case, t hen Carreon-Ortega had reentered the country illegally in 1994, because he h ad not sought or obtained permission from the Attorney General to re-enter th e United States. In any event, the man calling himself Jose Carreon-Ortega was “re leased back” from custody of the Denver police because “the INS was too busy to go pick him up.” R. Vol. 6 at
6. Carreon-Ortega, for his part, claims that after his deportation, he first reentered the country in May 1996. His presence in t his country was discovered in July 1997, when he was arrested on suspicion of fir st degree sexual assault. Colorado prosecutors later dropped the charges and declined to prosecute Carreon-Ortega for this offense. However, his arre st was enough to alert federal authorities to his presence in the United States, a nd, apparently, this time they were not too busy to pick him up. On September 8, 1997, he was officially charged with aggravated re-entry into the United St ates, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On October 31, 1997, Carreon-Ortega entered into a plea agreement with federal prosecutors, under which he agreed to plead guilty to the illegal re-entry-5-

charge, if the government would recommend a sentenc e at the bottom of the applicable guideline range, which the parties agree d was 46-57 months. This sentence range was based on a base offense level of 21, and a criminal history score of five—three points for the felony sexual ab use charge and two points for the related misdemeanor theft and harassment charge s. This score placed Carreon-Ortega in criminal history category III. The presentence investigation report, however, issu ed November 25, 1997, assigned Carreon-Ortega a criminal history score of nine, which placed him in criminal history category IV, with a higher sentenc ing range of 57-71 months. This higher score was based on one additional pointfor the 1988 shoplifting charge, one additional point, under § 4A1.1(f) of t he sentencing guidelines, because the probation officer considered the misdem eanor harassment charge to be violent, and two additional points, under § 4A1. 1(e), because the probation officer considered part of the instant offense (ill egal re-entry) to have been committed less than two years following Carreon-Ort ega’s release from custody. The probation officer based his recommendation rega rding the last two additional points on the premise that the man arrested in Denv er in 1994 was the same Jose Carreon-Ortega who is the defendant in this case. The probation officer also noted that, if the three theft and one harassment c onvictions were for some reason not considered related, then Carreon-Ortega would h ave a criminal history score-6-

above 13, placing him in criminal history category VI. The officer recommended, however, that the four misdemeanor convictions be c onsidered related because there was a common victim. The probation officer p ointed out to the court that perhaps an upward departure would be warranted in this case according to the sentencing guidelines, if the court were to determi ne that Carreon-Ortega’s criminal history score underrepresented his crimina l history. On February 25, 1998, Carreon-Ortega filed objectio ns to the presentence report. First, he objected to the probation office r’s one-point addition for the harassment charge, arguing that class 3 misdemeanor s in Colorado carry a maximum sentence of six months in jail, and therefo re can never be “violent” crimes as defined by the sentencing guidelines in § 4B1.2(a), which restricts the definition of “crimes of violence” to crimes punish able by more than one year. Second, he objected to the probation officer’s two- point addition stemming from the alleged 1994 re-entry, because of Carreon-Orteg a’s assertion that he was not the man arrested in Denver in 1994 and that he had re-entered the country, for the first time since his deportation, in May 1996. Thi rd, he objected to the two-point assessment for the misdemeanor theft and harassmentcharges, contending that these charges were related to the felony sexual abu se charge. Finally, he moved the court to downward depart from the sentencing gu idelines’ range, because he claimed his criminal history was overrepresented byhis criminal history score.-7-

The district court, in a hearing on March 11, 1998, sustained CarreonOrtega’s first objection, ruling that the harassmen t charge could not have been a crime of violence. In the same hearing, the distri ct court overruled CarreonOrtega’s third objection, ruling that the misdemean or theft and harassment charges, while related to each other, were not related to the sexual abuse charge because different victims were involved. The court postponed any ruling on Carreon-Ortega’s second objection, in order to give the government time to gather evidence that the man arrested in Denver in 1994 re ally was the defendant. The district court held another hearing on March 27 , 1998, to consider Carreon-Ortega’s second objection, and to consider whether to depart upward or downward from the applicable guideline range. At t hat hearing, the government admitted that it could not produce any hard evidenc e that the man arrested in Denver in 1994 really was the defendant, and so the district court sustained Carreon-Ortega’s second objection. After ruling onall of the objections, the court determined that Carreon-Ortega had a criminal history score of six, which placed him, as anticipated by the plea agreement, i n criminal history category III, which carries, at base offense level 21, a range of 46-57 months imprisonment. The district court concluded, however, that crimina l history category III “is inadequate to reflect the criminal history category to be assigned and that this defendant’s criminal history is significantly more serious that other defendants in-8-

the criminal history category III” and that “his cr iminal history category underrepresents his criminal history.” R. Vol. 7 at 24. The court departed upward from this category, to criminal history cate gory IV. To support this determination, the district court cited § 4A1.3 of the Sentencing Guidelines, and one of the application notes following § 4A1.2. Se ction 4A1.3 authorizes courts to depart upward from the guideline range where “re liable information” indicates underrepresentation; the application note to § 4A1. 2 specifically mentions that related but uncounted cases can, in some cases, giv e rise to a situation of underrepresentation. The district court stated that all but one of the misdemeanor theft and harassment convictions had gone uncountedunder the guidelines, and that therefore Carreon-Ortega’s criminal history sc ore underrepresented his true criminal history. The district court also stated t hat Carreon-Ortega was originally charged with burglary and robbery, much more seriou s offenses than those to which he pled guilty, and “mentioned,” while explic itly stating that these factors played no role in its decision, that Carreon-Ortegawas suspected to have illegally re-entered the country in 1994, and that he had bee n arrested, although not charged or prosecuted, with another count of sexual assault in 1997. Id. at 26-28.-9-

The district court proceeded to sentence Carreon-Ortega as though he were in criminal history category IV, and imposed a sent ence—71 months imprisonment—at the upper end of the category IV gu ideline range. Carreon-Ortega now appeals from the district court’ s decision to depart upward from the applicable sentencing guideline ran ge. He argues that the district court impermissibly used unproven charges, such as the 1988 robbery and burglary charges, the 1994 arrest, and the 1997 sex ual assault arrest, as the basis for its upward departure, and argues that his crimi nal history, if anything, is overrepresented by a criminal history score of six.

STANDARD OF REVIEW When reviewing district court decisions to depart f rom the sentencing guidelines, appellate courts are to apply “a unitary abuse-of-discretion standard.” Koon v. United States , 518 U.S. 81, 100 (1996). This standard “includes review to determine that the discretion was not guided by erroneous legal conclusions.” Id. We have recently stated that appellate courts, in conducting this review, must undertake a four-step evaluation of the district co urt’s decision to depart: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the depa rture factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure[;] (3) whethe r the record sufficiently supports the factual basis underlying the departure [;] and (4) whether the degree of departure is reasonable. In performing this review, Koon tells us-10-

that an appellate court need not defer to the distr ict court’s resolution of the first question, whether a factor is a permissible d eparture factor under any circumstances, but must give “substantial deference ” to the district court’s resolution of the second question, whether “a parti cular [defendant] is within the heartland given all the facts of the cas e.” United States v. Collins , 122 F.3d 1297, 1303 (10th Cir. 1997) (citing and quoting
Koon ).

DISCUSSION I. Step One–Permissibility of Departure Factors Our starting point, in any discussion of departure from the sentencing guidelines, must be the statutory pronouncements of Congress and the related pronouncements of the United States Sentencing Comm ission. Congress has instructed courts not to depart from the applicable sentencing guidelines “unless the court finds that there exists an aggravating ormitigating circumstance of a kind, or to a degree, not adequately taken into con sideration by the Sentencing Commission in formulating the guidelines.” 18 U.S. C. § 3553(b); U.S. Sentencing Guidelines Manual § 5K2.0 (1998). We have held that upward departures under § 4A1.3, such as the one employed by the district court in this case, are a subset of departures under § 5K2.0. See United States v. MaldonadoCampos , 920 F.2d 714, 719 n.2 (10th Cir. 1990). Section 4A1.3 permits an upward departure when “reliable information indicat es that the criminal history1 The district court did mention, seemingly in passin g, that recidivism was

also a factor, stating that “I think there is ample authority for an upward departure in this matter, and that the facts and circumstance s surrounding this defendant’s past history and his possibility or probability of recidivism clearly indicate that a departure upward of one category is clearly appropr iate.” R. Vol. 7, at 28. The district court also stated that Carreon-Ortega had been “coming back and forth across the border every time he sees fit,” and that“it’s pretty obvious his purpose is to commit crimes because every time he has been here he has done that.” R. Vol. 6, at 8, 9. However, the district court clear ly indicated that the major basis for the upward departure was its determination thatCarreon-Ortega’s criminal history was underrepresented by his criminal history score. -11- category does not adequately reflect the seriousnes s of the defendant’s past criminal conduct or the likelihood that the defendant will commit othe r crimes” (emphasis added). The district court, in imposing the upward departure in this case, seemed to rely largely on the first prong, 1 stating that “I think this is an atypical case. Factual basis for departure is that. . . the defendant was assessed only five criminal history points as a result of fi ve convictions.” R. Vol. 7, at 25. We must first determine whether the district court’ s stated ground for departure is a permissible ground. Underrepresentation of a defendant’s criminal history is clearly a permissible ground for an upward departure. “Because section 4A1.3 provides an encouraged basis for departure no t already taken into account by the Commission, over-representation of a defendant’s criminal history or likelihood for recidivism always will be an approve d ground for departure.” Collins , 122 F.3d at 1304.-12-

But this does not end the inquiry. We must next de termine whether the factual bases set forth by the district court in support of its finding of underrepresentation are themselves permissible grounds for departure. See id. (stating that “[t]hese supporting facts themselves must constitute permissible grounds for departure”). Upon examination, we thin k the factual bases relied upon by the district court constitute permissible g rounds for departure. Under the sentencing guidelines, “[p]rior sentences imposed in related cases are to be treated as one sentence” for the pu rposes of tabulating criminal history points. U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (1998). “[P]rior sentences are considered related if they r esulted from offenses that (A) occurred on the same occasion, (B) were part of a s ingle common scheme or plan, or (C) were consolidated for trial or sentencing.” Id. § 4A1.2, Application Note 3. In this case, the district court found that the three theft convictions and the one harassment conviction were related under this secti on. As a result, CarreonOrtega was assigned only two criminal history point s for these convictions. The Sentencing Commission explicitly recognized that this rule regarding related offenses could result in several conviction s going uncounted. The Commission stated that “court[s] should be aware th at there may be instances in which this definition is overly broad and will resu lt in a criminal history score that underrepresents the seriousness of the defendant’s criminal history and the-13-

danger that he presents to the public.” Id. This court has sanctioned similar upward departures in prior cases, where the distric t court determined that the defendant’s criminal history was underrepresented d ue to uncounted “related” offenses. See United States v. White , 893 F.2d 276, 280 (10th Cir. 1990) (upholding a district court’s decision to depart up ward because of uncounted related offenses, and stating that “[w]e have littl e difficulty in concluding that . . . the district court’s justifications for departure w ere not already adequately considered by the Sentencing Commission in formulat ing the guidelines, . . . since the Sentencing Commission explicitly stated” in App lication Note 3 that uncounted offenses could give rise to underrepresentation); see also United States v. Rivas , 922 F.2d 1501, 1504-05 (10th Cir. 1991) (making asimilar holding). Other circuits have also sanctioned upward departur es under similar circumstances, citing Application Note 3. See , e.g. , United States v. Connelly , 156 F.3d 978, 983 (9th Cir. 1998); United States v. Gammon , 961 F.2d 103, 106 (7th Cir. 1992); United States v. Ocasio , 914 F.2d 330, 334 (1st Cir. 1990); United States v. Metcalf , 898 F.2d 43, 46 n.6 (5th Cir. 1990); United States v. Jackson , 883 F.2d 1007, 1009 (11th Cir. 1989). Thus, it i s beyond question that a district court may depart upward from the sentencin g guidelines’ heartland when it determines that the defendant’s criminal history is underrepresented due to uncounted “related” offenses.-14-

Finally, we must determine whether the specific fac tual circumstances described by the district court in this case, in support of its finding of underrepresentation, “are permissible departure factors.” Collins , 122 F.3d at 1305. In this case, the district court cited three uncounted misdemeanor offenses; Carreon-Ortega was given only two criminal history points for four separate convictions of misdemeanor theft and harassment. T he question before us is whether an upward departure is permissible on these facts, and, specifically, whether an upward departure is permissible on the b asis of uncounted misdemeanor offenses. At least one circuit has, at least most of the time , imposed a “seriousness” requirement for upward departures based on uncounte d criminal conduct, stating that “uncounted criminal conduct must in all cases cross a threshold of ‘seriousness’ to support a departure.” Connelly , 156 F.3d at 984 (although citing some Ninth Circuit cases which did not require an “ explicit showing of seriousness”). The Ninth Circuit implies such a re quirement from the language of § 4A1.3 and from “the examples of departure-worthy conduct listed in § 4A1.3.” Id. ; see also United States v. Carrillo-Alvarez , 3 F.3d 316, 320 (9th Cir. 1993). This circuit has never explicitly adopted this “ser iousness” requirement in cases2 We have, however, imposed such a requirement in cas es construing

Application Note 8. See United States v. Wyne , 41 F.3d 1405, 1408-09 (10th Cir. 1994). This requirement is compelled by the expres s language of Application Note 8, which allows upward departures for “serious dissimilar” conduct committed outside the time periods dictated by the sentencing guidelines. -15- construing Application Note 3. 2 Other circuits either have not addressed the issue, or have been willing to impose upward departures on the basis of uncounted misdemeanor offenses. See Gammon , 961 F.2d at 106 (approving a district court decision to upward depart based on a n uncounted conviction for a “lesser included offense of theft”); cf. United States v. Carpenter , 963 F.2d 736, 744 (5th Cir. 1992) (approving a district court dec ision to depart upward on the basis of a “juvenile adjudication for burglary and a misdemeanor conviction for theft” where both were “outside the limitations per iod”; this latter conviction involved a “violent purse snatching”). There are a lso a number of cases within the Ninth Circuit which have increased sentences ba sed on uncounted misdemeanor convictions. See , e.g. , United States v. Durham , 941 F.2d 858, 862- 63 (9th Cir. 1991) (making no mention of a “serious ness” requirement, and sanctioning an upward departure based on “prior mis demeanors”). Even under the Ninth Circuit line of cases applying the “seriousness” requirement in Application Note 3 cases, the applic ation of the rule has been less than uniform. For instance, the Ninth Circuit has termed immigration violations, marijuana trafficking, and prison fights and public transportation fare evasion as-16-

“serious” conduct, while declaring that auto burgla ry and tribal convictions for assault and battery fall outside the “serious” category. See Connelly , 156 F.3d at 984 (citing cases). It appears to us that even und er the Ninth Circuit’s rule, some misdemeanors would qualify as “serious” conduct whi le others would not. Application of the Ninth Circuit’s rule would not n ecessarily aid Carreon-Ortega. However, we do not think we need to decide, in this case, whether we would apply a similar rule in Application Note 3 ca ses. Even assuming, arguendo, that such a rule applied in this case, we think Carreon-Ortega’s conduct is sufficiently serious to form a permissible basis for an upward departure, even under the Ninth Circuit’s “seriousness” requirement . The uncounted offenses included a December 1988 incident in which Carreon- Ortega and two accomplices confronted the female victim on the street, stole h er purse, and drove off; a December 1988 incident in which Carreon-Ortega thre w a hard object through a window of the same woman’s trailer, while yelling “ I’m going to get you”; and a March 1989 incident in which Carreon-Ortega and one accomplice again accosted the same victim on the street and again stole her p urse. R. Supp. Vol. 1, at 8-9. These incidents are different from, and more seriou s than, marijuana possession or tribal convictions for misdemeanor assault and b attery, and at least as serious as other offenses deemed “serious” by the Ninth Cir cuit, such as immigration violations, and prison fights and transportation fare evasion. See Connelly , 1563 We express no opinion as to whether the district co urt’s “mention” of the

robbery and burglary charges, the unproven 1994 arr est, and the uncharged 1997 assault arrest, were improper. The district court explicitly stated that it did not consider the 1994 or 1997 incidents in arriving at its decision to depart upward, and we think that, even assuming, without deciding, that the district court’s mention of the 1988 robbery and burglary charges wa s improper, the district court’s decision was still grounded in a permissibl e factual basis for upward departure. We are persuaded that the uncounted mis demeanor convictions, by themselves, are enough to constitute a valid basis for an upward departure. -17- F.3d at 984. These incidents are also much more se rious than the conduct at issue in United States v. Wyne , 41 F.3d 1405 (10th Cir. 1994), an Application Not e 8 case in which the defendant’s uncounted offense was “assault on a female,” but where the relevant state statute defined the offens e broadly, to include even instances of yelling at a female, and where there w as no evidence in the record setting forth the nature of the defendant’s specific criminal conduct. Id. at 1408- 09. We are persuaded that a pattern of uncounted c riminal conduct which includes two separate instances of purse-snatching and one incident where the defendant threw a hard object into an occupied resi dence is sufficiently serious to permit a district court to depart upward from the s entencing guidelines’ heartland. 3 Therefore, we hold that the factors relied upon by the district court in making its decision to depart upward are permissibl e departure factors. Regardless of whether we apply the Ninth Circuit’s “seriousness” requirement, it is permissible for the district court to depart upw ard on the basis of two-18-

uncounted convictions for misdemeanor theft, and on e uncounted conviction for misdemeanor harassment.

II. Steps Two and Three–The Decision to Depart We now proceed to the second and third parts of ourinquiry: “whether the combination of factors identified by the district c ourt warrants” an upward departure from the sentencing guidelines, and “whet her the record sufficiently supports the factual basis underlying the departure.” Collins , 122 F.3d at 1308. At this stage of the analysis, our review is very d eferential. The Supreme Court has instructed federal appellate courts to take car e not to “ignore the district court’s special competence . . . about the ‘ordinar iness’ or ‘unusualness’ of a particular case,” and has stated that district courts have an “institutional advantage over appellate courts” in making typicali ty determinations, because district courts see many more such cases than appellate courts do. Koon , 518 U.S. at 98-99. The district court in this case spe cifically held that CarreonOrtega’s criminal history was “atypical” and that “ his criminal history category underrepresents his criminal history.” R. Vol. 7 at 24, 25. Furthermore, it is undisputed that Carreon-Ortega was convicted of the uncounted offenses, and that these offenses were not assigned any criminal histo ry points at sentencing. We hold that the district court did not abuse its disc retion in determining that this-19-

defendant’s particular criminal history was not ade quately represented by his criminal history score, and that the factual basis underlying the upward departure is sufficiently supported in the record.

III. Step Four–The Degree of Departure The district court only departed one criminal histo ry category upward. Carreon-Ortega makes no separate argument that the degree of the district court’s upward departure was unreasonable. Thus, we conclu de that the degree of the district court’s upward departure was reasonable. Accordingly, the decision of the district court is AFFIRMED.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge