* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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 

### JUL 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD JOHN RILEY, Defendant-Appellant. No. 97-1091 (D.C. No. 96-CR-322-S) (D. Colo.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and KELLY , Circuit Judges.

Donald John Riley (“Riley”) appeals the district co urt’s upward departure in sentencing him for firearm theft. We affirm in part, but vacate the sentence and remand for re-sentencing.
BACKGROUND Under Federal Rule of Criminal Procedure 11(e)(1)(C ), Riley entered a plea of guilty to a one-count indictment of stealing thr ee handguns from the EZ Pawn1 The plea agreement acknowledged that the districtcourt might determine

that Riley’s Criminal History Category should be VI , in which case he could be sentenced up to 41 months.

2 The offense level of 13 reflected a base offense level of 14 under § 2K2.1(b) of the Guidelines for a violation of 18 U.S.C. § 922(u), a one-level increase in the base offense level under § 2K2.1(b) (1)(A) because Rile stole three handguns, and a two-level downward adjustment for a cceptance of responsibility under § 3E1.1(a). - 2 - Store in Colorado Springs, Colorado, a federally li censed firearms dealer, in violation of 18 U.S.C. § 922(u). ( R. I, Docs. 1 & 5 ). The plea agreement provided for a 30-month sentence based on a sentenc ing range of 24 to 30 months, reflecting a “tentative” Criminal History Category IV 1 and an adjusted offense level of 13 under the United States Sentenc ing Guidelines (the “Guidelines”). 2 ( R. I, Doc. 5 ). The district court reserved ruling on its acceptance of Riley’s guilty plea until after it ha d an opportunity to review the Presentence Investigation Report (the “PSR”). ( Supp. R. II at 6-7 ). The PSR recommended an adjusted offense level of 13. ( PSR at 6 ). However, the PSR concluded that Riley’s extensive c riminal record placed him in Criminal History Category VI, not Category IV, resu lting in a sentencing range of 33 to 41 months under the Guidelines. ( PSR at 40 ). The PSR allotted Riley 17 criminal history points for his prior convictions o n the following charges: open or gross lewdness, a Driving Under the Influence co nviction, possession of less- 3 -

than eight ounces of marijuana, harassment, shoplif ting, and seven convictions of indecent exposure. ( PSR at 7-32 ). Because of the limits prescribed in § 4A1.1(c) of t he Guidelines, Riley did not receive any criminal history points for the fol lowing additional prior criminal conduct: a deferred judgment for indecent exposure ; two Driving While Ability Impaired convictions; criminal trespass; permitting an unauthorized person to drive a vehicle; indecent exposure; harassment; pub lic indecency; trespassing; providing false information; third degree assault; and two counts of shoplifting. (PSR at 7-32 ). In addition, no points were allotted for pendin g charges against Riley on two counts of felony possession of marijuana and methamphetamine; pending charges on two counts of felony theft of go ods valued at less than $15,000; and charges dropped in exchange for a guil ty plea on counts of possession/sale of a controlled substance, habitual offender driving on revoked license, aggravated car theft, criminal impersonati on, possession of controlled substance paraphernalia, and indecent exposure. ( PSR at 7-32 ). Had the PSR included these various non-counted crim inal charges, Riley would have had 29 criminal history points ( PSR at 32 ), more than twice the minimum number of 13 required to be placed in Categ ory VI, the highest possible Criminal History Category. Because of Riley’s exte nsive criminal history, the PSR stated that if the district court “finds that t he defendant’s criminal history- 4 -

significantly understates the . . . likelihood thathe will reoffend, then the Court could consider an upward departure.” ( PSR at 45 ). Riley did not object to the PSR other than to correct one misstatement about hi s record, which the court accepted. ( R. II at 3 ). At the sentencing hearing, the parties requested a modification of the plea agreement to require a 33 month term of imprisonmen t, the minimum sentence for offense level 13 and Criminal History Category VI. ( R. II at 4 & 10 ). The district court agreed with the PSR’s recommendation s of an offense level of 13 and Criminal History Category VI, but considered a 33 month sentence insufficient. ( R. II at 16 & 21 ). Among other things, the district court noted th at Riley had pled guilty to four felonies in state cou rt and that sentencing on those state offenses had been “conveniently deferred” unt il after sentencing in this federal case, and the court was advised that an agr eement had been reached in the state cases providing that any sentence Riley recei ved probably would run concurrent to any federal sentence. The district c ourt commented on Riley’s extensive criminal history, including the crimes an d charges for which criminal history points were not assessed, stating: This man is a walking crime wave. I think it’s abs olutely obvious that this young man will, whenever he is released to society, will [sic] commit other crimes. There isn’t a likelihood; there’s a substa ntial likelihood that he will continue to commit crimes, if not a practical sur[e]ty.3 In a prior order, this court directed the distric t court to supplement the

record on appeal with the transcript of the change of plea hearing and the certificate of delivery of the PSR. The United States has moved to supplement the record on appeal by including a January 29, 199 7, letter from the Probation Office transmitting the addendum to the PSR. Howev er, because the January 29, 1997, letter is attached to the PSR addendum submitted by the district court in compliance with this court’s prior order, the lette r is already part of the appellate record, and thus the motion by the United States is moot. - 5 - (R. II at 20 ). As a result, the district court placed Riley in Criminal History Category VI and then made an upward departure by in creasing Riley’s offense level to level 15 under § 4A1.3 of the Guidelines a nd imposed the maximum sentence of 51-months of imprisonment. ( R. II at 22 ). Despite being given an opportunity to do so, Riley chose not to withdraw his plea. ( R. II at 25 ). He now appeals the district court’s departure.
DISCUSSION Riley contends that the district court erred both b y upwardly departing in his sentence and by failing to give him proper noti ce of its intent to upwardly depart. 3 We address each argument in turn. I. Upward Departure Riley argues that the district court erred by upwar dly departing because his record, although extensive, does not reflect a hist ory of serious crime. We review a district court’s decision to depart from the Guid elines under a “unitary” abuse of4 The United States suggests that we should review this question only for

plain error because Riley failed to object below. However, the transcript of the sentencing hearing shows that Riley specifically pr eserved his right to appeal the district court’s upward departure. ( R. II at 25-26 ). - 6 - discretion standard. See Koon v. United States , 518 U.S. 81, 99-100 (1996); United States v. Collins , 122 F.3d 1297, 1302 (10th Cir. 1997). 4 [I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon must evaluate: (1) whether the factual circumstances sup porting a departure are permissible departure factors; (2) wh ether the departure factors relied upon by the district court remove th e defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factua l basis underlying the departure, and (4) whether the degree of depart ure is reasonable. Collins , 122 F.3d at 1303. Riley first argues that the district court’s reason s for upwardly departing are not permissible departure factors. He contends that his criminal activities were not “serious” and thus do not support a departure under§ 4A1.3, which provides: 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 othe r crimes, the court may consider imposing a sentence departing from the oth erwise applicable guideline range. Such information may include, butis not limited to, information concerning: (a) prior sentence(s) not used in computing the cr iminal history category (e.g., sentences for foreign and tribal offenses); (b) prior sentence(s) of substantially more than o ne year imposed as a result of independent crimes committed on different occasi ons; (c) prior similar misconduct established by a civi l adjudication or by a failure to comply with an administrative order;- 7 -

(d) whether the defendant was pending trial or sen tencing on another charge at the time of the instant offense; (e) prior similar adult criminal conduct not resul ting in a criminal conviction. (emphasis added). Thus, a departure is warranted e ither if the criminal history understates the seriousness of the defendant’s crim es or if the criminal history understates the likelihood that the defendant will commit future crimes. Here, the district court expressly decided to upwardly departunder § 4A1.3 after finding a substantial likelihood, “if not a practical sur[e]ty,” of recidivism, and that finding is amply supported by the record. ( R. II at 20 ). Such a factor is a permissible basis to support an upward departure under the Guid elines. Second, Riley claims that his criminal history does not remove him from the heartland of Guideline cases under Criminal HistoryCategory VI. To the contrary, the district court noted that this was the longest and most involved criminal history the probation officer had seen in eight years on the job. ( R. II at 7 ). We believe that the district court properly found that Riley w as outside the heartland of cases. Finally, Riley contends that the degree of the depa rture was unreasonable and that the district court abused its discretion b y failing to explain on the record why it chose a two-level departure. We agree that the district court failed to explain the reason for the degree of departure, and accordingly we cannot evaluate properly on this record the reasonableness of the d egree of departure.- 8 -

[I]n departing from the applicable guideline range, a district court must specifically articulate reasons for the degree of d eparture. The district court may use any reasonable methodology hitched to the S entencing Guidelines to justify the reasonableness of the departure, whi ch includes using extrapolation from or analogy to the Guidelines. Collins , 122 F.3d at 1309 (internal quotations and citatio ns omitted). Here, the district court did not state specifically why it de cided that Riley’s likelihood of committing future crimes warranted a two-level as o pposed to a one-level or any greater level of departure. In addition, although the PSR suggested an upward departure, the PSR neither indicated a recommended departure level nor contained reasons for adopting any particular departure. Thu s, the district court could not have relied on the PSR to justify the degree of the departure. The district court only stated that it did not consider eight months ( the difference between the 33 months the parties agreed on at sentencing and the 41 months at the top of the range) to be sufficient. (R. II at 21-22 ). An offense level of 14 would have produced a sentencing range of 37 to 46 months, whi le the sentencing range under offense level 15 in Criminal History Category VI is 41 to 51 months. We do not know why the district court considered the eight-mo nth difference between 33 and 41 months to be insufficient or why the district co urt believed that a 51-month sentence sufficed. As a result, the district courterred by failing to offer a detailed explanation of its reasoning.
II. Notice- 9 -

Riley contends that the district court erred in notgiving him prior notice of its intent to upwardly depart. See Burns v. United States , 501 U.S. 129, 135 (1991) (requiring notice of an intent to depart upw ard). Because Riley did not raise this issue below, it is reviewable only for plain error. See Johnson v. United
States , 520 U.S. 461, ___, 117 S. Ct. 1544, 1548 (1997). Under the plain error test, there must be (1) an error (2) that is plain (3) that affects substantial rights and (4) and that seriously affects the “fairness, i ntegrity, or public reputation of the judicial proceedings.” Id. at 1548-49. We conclude that even if Riley did no t receive proper notice, no fundamental miscarriage o f justice occurred that requires us to remedy such error. After announcing its deci sion to upwardly depart at the sentencing hearing, the district court offered Rile y the opportunity to withdraw his guilty plea, which he declined. ( R. II at 25-26 ). He also refused the district court’s offer to arrange for additional time for him to consider his position. ( R. II
at 25-26 ). Consequently, to the extent that Riley was depr ived of an opportunity to argue against the departure, the district court off ered to remedy that deprivation by allowing him to withdraw his plea or receive a cont inuance. Thus, any failure to provide notice did not constitute to plain error.
CONCLUSION- 10 -

For the reasons discussed above, we AFFIRM the district court’s decision to upwardly depart, but REMAND so that the district co urt can articulate the reasons for the degree of the upward departure selected.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge