In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-3684

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARK A. MCINTYRE,

Defendant-Appellant.

____________

Appeal from the United States District

Court for the Southern District of Illinois.

No. 3:06CR30095-002-GPM—G. Patrick Murphy, Judge.

____________

ARGUED JUNE 11, 2008—DECIDED JUNE 27, 2008

____________

Before MANION, ROVNER, and TINDER, Circuit Judges. 

PER CURIAM. After robbing six banks in four states

over a one month period with his girlfriend, Mark A.

McIntyre pleaded guilty to one count of bank robbery. See

18 U.S.C. § 2113(a). The district court, consulting the

presentence investigation report and both parties’ objections and motions, calculated a guidelines imprisonment

range of 37 to 46 months. The government then argued

for an above-guidelines sentence, and the court sentenced McIntyre to 144 months’ imprisonment—nearly

100 months above the guidelines range. McIntyre appeals his sentence. Because the sentence is reasonable,

we AFFIRM.
2 No. 07-3684

1 At the time of sentencing, McIntyre had several counts of

bank robbery charges pending in Massachusetts and Connecticut stemming from this month-long spree.

McIntyre, along with his girlfriend Brook Beaulieu, was

indicted on July 20, 2006, with one count of bank robbery.

18 U.S.C. § 2113(a). Beaulieu pleaded guilty on May 21,

2007, was sentenced to 41 months’ imprisonment, and

cooperated with the government’s prosecution of McIntyre.

Before pleading guilty, McIntyre asked for the probation

office to prepare his presentence investigation report,

which listed his total offense level at 22 and his criminal

history category at II, resulting in a recommended guidelines imprisonment range of 46 to 57 months. The probation officer awarded three criminal history points for a

1989 conviction in which McIntyre broke into a rectory, tied

up a priest, and stole between $50 and $90 from his wallet.

However, McIntyre received no criminal history points for

numerous crimes committed prior to 1989, including an

armed burglary with the intent to rob a person over 65

years of age. And the officer explained that, after pleading

guilty, Beaulieu admitted to authorities that she and

McIntyre were involved in six other bank robberies

throughout the country in the month prior to the June 20

robbery.1

 The officer also noted that McIntyre had threatened the life of Beaulieu’s public defender because she

refused to advise him on his case.

McIntyre objected to the presentence investigation report,

stating that he deserved a reduction of three points for

acceptance of responsibility, despite not yet having pleaded

guilty. Two weeks later, McIntyre pleaded guilty without

a plea agreement. The government then filed its own
No. 07-3684 3

2 McIntyre received a “forthwith” sentence as part of his 1989

conviction for armed robbery while masked, which discharged

him from his 1983 conviction for armed burglary. As a result,

the 12-year sentence he received in 1983 was discharged just

three months prior to the 15-year limit on criminal history

computation, thereby allowing him to avoid qualification as a

career offender.

objection to the report, arguing that the probation officer

should have recommended increasing McIntyre’s offense

level for obstructing justice based on his threat toward

Beaulieu’s public defender and a letter he sent Beaulieu,

which threatened, “Just don’t cop out to anything and stop

telling on me!” And, the government continued, McIntyre

did not deserve acceptance points if he is found to have

obstructed justice. The government also moved for an

“upward departure,” claiming that the presentence report

under-represented the seriousness of McIntyre’s criminal

history. In particular, the government noted that McIntyre

would have qualified as a career offender if he had not

received a “forthwith” sentence on his 1989 conviction,

which discharged him from a previous conviction.2

 Further, the government argued that the report failed to

recognize the likelihood of recidivism.

At sentencing the government offered testimony from

Ron Lott as evidence of McIntyre’s threat against

Beaulieu’s public defender. Lott testified that, after

calling and angrily confronting Beaulieu’s attorney,

McIntyre told him that he was going to “have some of his

guys come down here and take care of her. Meaning kill

her.” Shortly thereafter, the district court denied the

government’s request for a two-level increase for obstructing justice because the letter and verbal threat were
4 No. 07-3684

somehow “ambiguous.” And it granted McIntyre a twolevel reduction in his base offense level for acceptance of

responsibility. Based on a total offense level of 20 and a

criminal history category of II, the district court then

calculated a guidelines imprisonment range of 37 to 46

months.

The district court next addressed the government’s

motion for an above-guidelines sentence. The government

argued that McIntyre’s criminal history category of II

“clearly underrepresented” his criminal history because

it did not include nearly a dozen crimes he committed prior

to 1991. Further, the government asserted that McIntyre

was “really a career offender” based upon his lengthy

criminal history and the fact that, but for a quirk

in Massachusetts law, he would in fact have qualified as

a career offender. McIntyre, in response, argued for a

within-guidelines sentence because of the 41-month

sentence that Beaulieu received. He also claimed that

he spent the twelve years between 1994 and 2006 as a

“productive citizen” with several jobs and no criminal

history.

After hearing from both sides, the district court sentenced McIntyre to an above-guidelines sentence of 144

months’ imprisonment and three years’ supervised release.

The court credited the government’s argument that “but for

a peculiarity in Massachusetts law regarding a socalled forthwith resolution of the case, the defendant

would be a career offender and would be looking at a

guideline sentence which is in excess of the statutory

max” of 20 years. Further, the court reasoned that McIntyre

had a “history of violent and abusive conduct” and agreed

with the government that his criminal history was
No. 07-3684 5

underrepresented. The court also took into account the

need to protect the public from further crimes McIntyre

might commit and the threats he made against the

public defender’s life. McIntyre now appeals his sentence.

On appeal McIntyre first argues that the district court’s

144-month sentence was unreasonable because it failed to

apply the rules governing upward departures as set out

in U.S.S.G. § 4A1.3. Since the Supreme Court decided

United States v. Booker, 543 U.S. 220 (2005), however, we

do not require a district court to follow § 4A1.3 when

imposing an above-guidelines sentence. See United States

v. Valle, 458 F.3d 652, 657-58 (7th Cir. 2006); United States

v. Castro-Juarez, 425 F.3d 430, 434-36 (7th Cir. 2005).

Indeed, we will uphold an above-guidelines sentence so

long as the district court offered an adequate statement of

its reasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sentence. Castro-Juarez, 425 F.3d at 436; United

States v. Jordan, 435 F.3d 693, 698 (7th Cir. 2006). The district court, though, need not “canvass[ ] the statutory

factors” for an above-guidelines sentence to be reasonable.

Valle, 458 F.3d at 656 (internal quotation marks and citation omitted). Ultimately, we review the sentence for

reasonableness. See Gall v. United States, 128 S. Ct. 586,

597 (2007).

McIntyre also contends that his sentence is unreasonable because the court did not provide sufficient reasons

for its non-guidelines sentence. But after correctly calculating the guidelines range, the district court explicitly

referred to § 3553(a) in explaining McIntyre’s 144-month

sentence, which was barely half of the 20-year statutory

maximum McIntyre faced. The court first considered

McIntyre’s lengthy history of violent crime and abusive

conduct, such as his armed robbery of an elderly man
6 No. 07-3684

in 1983 and his masked armed robbery of a priest in 1989.

It then noted the psychological harm McIntyre caused by

robbing banks. The judge also discussed the threats made

against Beaulieu’s attorney, the letter McIntyre sent to

Beaulieu herself, and studies showing recidivism rates

declining as men grow older. Finally, the court took into

account the need to protect the public and to deter

McIntyre himself from committing further crimes. All of

these considerations relate to the factors laid out in

18 U.S.C. § 3553(a). Cf. Valle, 458 F.3d at 658-59 (upholding 163-month sentence as reasonable where guidelines range was 63 to 78 months); Jordan, 435 F.3d 696-98

(upholding 240-month sentence as reasonable where

guidelines range was 110 to 137 months). Moreover, had

it not been for a quirk in Massachusetts law, McIntyre

would have been sentenced as a career offender. The

court’s above-guidelines sentence was therefore reasonable because it was adequately explained and consistent with the § 3553(a) factors.

Accordingly, we AFFIRM McIntyre’s sentence.

USCA-02-C-0072—6-27-08