* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral 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 

### MAY 14 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JAMES HOWARD PLATT, Defendant-Appellant. No. 02-5200 (N.D. Okla.) (D.Ct. No. 02-CR-36-H)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , 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(G). T he case is therefore ordered submitted without oral argument. On October 30, 2002, James Howard Platt was sentenc ed for being a felon in possession of a firearm and ammunition in violat ion of 18 U.S.C. §§ 922(G)(1)1 In connection with the government’s allegation th at Platt committed a

prior, uncharged homicide, the parties stipulated t hat an individual named William Carroll was murdered. Carroll was attacked and stabbed on August 12, 1998, and later died of his wounds.

2 Sentencing was initially set for August 23, 2002, but was subsequently rescheduled for September 27, 2002. The sentencing hearing was again rescheduled for October 18, 2002, due to defense co unsel’s motion to withdraw, which was granted on September 23, 2002. -2- and 924(a)(2). He appeals his sentence, primarily challenging the district court’s upward departure of two criminal history categories pursuant to USSG § 4A1.3. He also contests the imposition of a $1,000.00 fine . Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.
BACKGROUND On May 20, 2002, Platt pled guilty to one count of possession of a firearm and ammunition by a convicted felon. Before senten cing, a number of filings were made to the district court, including: 1) a m otion by the government for an upward departure based on Platt’s uncounted prior c riminal convictions, prior arrests, and his alleged uncharged involvement in t he 1998 homicide of William Carroll 1 ; 2) Platt’s objections to the presentence investig ation report (“PSIR”); 3) the government’s response to his objections; and 4) Platt’s response to the motion seeking an upward departure. At an initial hearing 2 , the district court overruled Platt’s objections to the PSIR, but ordered a conti nuance to later consider the government’s motion for an upward departure at sent encing.-3-

At the October 30, 2002 sentencing, the district co urt heard testimony from four police officers who investigated Carroll’s stabbing and death. At the close of evidence, the district court addressed the gover nment’s motion for an upward departure, specifically declining to consider Platt ’s arrest record in its deliberation. Instead, it determined that other fa ctors existed to support an increase in Platt’s criminal history category of II because it inadequately “reflect[ed] the likelihood that the defendant will commit other crimes.” (R., Vol. V at 145.) The district court considered Platt’s 1985 convicti on for being a felon in possession of a firearm, resulting in two years imp risonment. Because the conviction was over fifteen years old, it was not c onsidered in determining Platt’s criminal history category under USSG § 4A1.2(e). H owever, the district court found the prior conviction relevant under USSG § 4A 1.3(a) (2002) because it “is evidence of the same serious conduct for which the defendant is currently being sentenced.” (R., Vol. V at 145-46.) Next, the district court considered the testimony o f the police officers regarding Platt’s participation in Carroll’s homici de. Concluding the government proved by a preponderance of the evidence that Platt stabbed Carroll and the stabbing resulted in Carroll’s death, the district court determined his uncharged conduct formed “the basis for an upward departure p ursuant to Section 4A1.3(e)-4-

as . . . ‘prior similar adult criminal conduct not resulting in a criminal conviction.’” (Id . at 148.) Accordingly, the district court imposed an upward departure from category II to category IV, basing t he increase on the number of criminal history points that would have been assign ed had the 1985 conviction been counted and had Platt been convicted of Carrol l’s homicide. Platt was sentenced to forty-eight months imprisonment follow ed by three years supervised release. The district court also imposed a $1,000. 00 fine.
DISCUSSION I. Upward Departure Because Platt’s appeal was pending on April 30, 200 3, the effective date of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650, we apply the standard of review contained in § 401 of the PROTEC T Act. United States v. Andrews , 353 F.3d 1154, 1155 (10th Cir. 2003), cert. denied, 124 S. Ct. 1696 (2004); United States v. Nunemacher , 362 F.3d 682, 684 (10th Cir. 2004). As explained in United States v. Jones, 332 F.3d 1294 (10th Cir.), cert. denied, 124 S. Ct. 457 (2003): In criminal cases other than child crimes and sex o ffenses, a sentencing court may depart from the applicable gui deline range if the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequat ely taken into consideration by the Sentencing Commission in formu lating the guidelines. In reviewing a district court's senten cing3 Section 3553(a)(2) provides, in part:

The court, in determining the particular sentence t o be imposed, shall consider--

. . . (2) the need for the sentence imposed-- (A) to reflect the seriousness of the offense, to p romote respect for the law, and to provide just punishment for the off ense; (B) to afford adequate deterrence to criminal condu ct; (C) to protect the public from further crimes of th e defendant; and (D) to provide the defendant with needed educationa l or vocational training, medical care, or other correctional treat ment in the most effective manner.

-5- determination, we accept the district court's findi ngs of fact unless clearly erroneous. Further, we generally give due deference to the district court's application of the guidelines to t he facts. Where the district court departs from the sentencing guid elines, however, we review de novo the district court's determinatio ns under 18 U.S.C. § 3742(e)(3)(A) and (B). 332 F.3d at 1299 (internal citations and quotation marks omitted).
In Jones, we outlined a four-part framework for review. Fir st, we determine whether the district court set forth, in a written order of judgment, its specific reasons for departure. Id . at 1299-1300; see 18 U.S.C. §§ 3742(e)(3)(A) and 3553(c)(2). Second, we review de novo whether the district court relied on factors advancing the objectives set forth in 18 U. S.C. § 3553(a)(2), 3 and ensure that its reliance did not violate any specific proh ibition in the Guidelines. Jones, 332 F.3d at 1299-1300; see 18 U.S.C. § 3742(e). Third, we consider de novo4 Section 3553(b)(1), applicable in cases other tha n child crimes and sexual

offenses, provides: Except as provided in paragraph (2), the court shal l impose a sentence of the kind, and within the range, referre d to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commissi on in formulating the guidelines that should result in a sentence different from that described. In determining whether a circ umstance was adequately taken into consideration, the court shal l consider only the sentencing guidelines, policy statements, and offic ial commentary of the Sentencing Commission. In the absence of an ap plicable sentencing guideline, the court shall impose an app ropriate sentence, having due regard for the purposes set forth in sub section (a)(2). In the absence of an applicable sentencing guideline i n the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offe nses and offenders, and to the applicable policy statements of the Sent encing Commission. -6- whether these factors were authorized under 18 U.S. C. § 3553(b) 4 and justified by the facts of the case—the “heartland” determination

. Jones , 332 F.3d at 1299- 1300; see 18 U.S.C. § 3742(e)(3)(B)(ii)-(iii). Whether the factors are "authorized" is determined by application of 18 U.S .C. § 3553(b)(1). Finally, we review for an abuse of discretion whether the sente nce "departs to an unreasonable degree from the applicable guidelines range," giving due deference to the district court. 18 U.S.C. § 3742(e)(1)(C). A. Written Judgment Requirement Here, as in many cases where sentencing occurred be fore the enactment of-7-

the PROTECT Act, the district court’s reasoning is not found in the written judgment but in detailed oral rulings explaining th e basis for its upward departure. As we have recently recognized, prior t o the PROTECT Act, “[t]he district court . . . had no warning of the future r equirements when it entered its judgment and set forth its reasons orally at the se ntencing hearing.” Nunemacher , 362 F.3d at 687. We also observed the Sixth and Ei ghth circuits, the only two courts to have specifically addressed this concern, have wisely held the PROTECT Act’s written requirements are met where th e sentencing court’s specific reasoning is outlined in the material on appeal and the sentencing occurred before the enactment of the PROTECT Act. Id . at n.8. We agree. Where the materials provided on appeal are “suffici ent to allow review of the decision to depart,” a remand directing the distric t court to reiterate its reasoning in a written judgment would be a waste of judicial resources. United States v. Camejo, 333 F.3d 669, 676 n.2 (6th Cir. 2003); see United States v. Aguilar-Lopez, 329 F.3d 960, 963 (8th Cir. 2003). In this instan ce, we find the transcript of the sentencing hearing, which include s the district court’s oral ruling and the PSIR, is sufficient to allow review of the decision to depart. However, we caution that the requirements of the PROTECT Actare fully applicable to sentencing judgments following its enactment. B. Reliance On Appropriate Factors-8-

Next, we consider de novo whether the factors ident ified by the district court advance the objectives set forth in 18 U.S.C. § 3553(a)(2), or violate any specific prohibition in the Guidelines. The distri ct court relied upon Platt’s 1985 conviction and his involvement in Carroll’s homicid e to conclude the original criminal history category did not “adequately refle ct the likelihood that the defendant will commit other crimes.” The court’s r eflection on Platt’s probable recidivism clearly promotes the statutory objective s of adequate deterrence and protection of the public from further crimes. 18 U. S.C. § 3553(a)(2)(B) and (C).

1. Reliable Evidence An upward departure must be based on “reliable info rmation.” USSG § 4A1.3(a)(1) (2003). Platt asserts the evidence sup porting his involvement in Carroll’s homicide was not sufficiently reliable to form the basis of an upward departure. While he concedes the district court sp ecifically found the police officers’ testimony credible, he claims “the record as a whole clearly demonstrates that Mr. Carroll’s statements were so contradictory, inconsistent and vague as to be clearly unreliable and thus do not s upport the factual finding made by the District Court.” (Appellant’s Br. at 21.) When reviewing the district court’s factual finding s, we must “give due regard to the opportunity of the district court to judge the credibility of the witnesses.” 18 U.S.C. § 3742(e). “To be clear: a lthough we review de novo-9-

whether a particular departure factor is ‘authorize d under section 3553(b)’ and ‘justified by the facts of the case,’ we review the district court's underlying findings of fact for clear error.” Jones , 332 F.3d at 1300 n.9. “Under this standard, we will not reverse a lower court's findi ng of fact simply because we would have decided the case differently. Rather, [ we] . . . ask whether, on the entire evidence, [we are] left with the definite an d firm conviction that a mistake has been committed." United States v. Gonzalez Edeza , 359 F.3d 1246, 1248 (10th Cir. 2004). For the purposes of sentencing, the government needonly show Platt’s responsibility for the stabbing and murder of Carro ll by a preponderance of the evidence. United States v. Valdez, 225 F.3d 1137, 1143 n.2 (10th Cir. 2000) (rejecting clear and convincing evidence standard at sentencing even though relevant conduct dramatically increased sentence), cert. denied, 532 U.S. 996 (2001). The testimony began with Officer Hill, the first officer at the scene of the stabbing and the first to interview Carroll. She t estified Carroll identified his attacker as “Dennis,” and he believed Dennis had ju st gotten out of the penitentiary. Although Carroll provided information about his attacker, Officer Hill testified he was reluctant in doing so. During her interview, Officer Hill received permission to look through Carroll’s home. There she found an address book containing a slip of paper with the name “Denn is Platt” and a telephone-10-

number. The next witness, Detective Cook, an investigator who interviewed Carroll at the hospital, testified Carroll told him the full name of his attacker was Dennis Platt. Next, Detective Parrish, an officer found to be particularly credible by the district court, testified as to his involvement in the investigation. Detective Parrish stated he “ran” the telephone number found in Carroll’s address book and discovered that James Platt also used the same numb er. Two days after the stabbing, Detective Parrish visited Carroll in the hospital and asked him if he knew Dennis Platt by any other name. Carroll respo nded he knew him as James Platt. Parrish showed him a picture of James Platt and Ca rroll verified the picture was a photograph of his attacker. The final witness, Officer Eubanks, received this c ase as a “cold case.” Because Platt was the lead suspect, Officer Eubanks arranged an interview with him. At first, Platt denied knowing Carroll but af ter the interview continued, Platt admitted he might have known him and he mighthave been at Carroll’s house with other people. Following the testimonial evidence, the government presented documentary evidence demonstrating James Platt used the alias Dennis Platt and he had no relatives named Dennis. Platt maintains this evidence is insufficient becau se Carroll gave contradictory statements regarding Platt’s physical description, where Platt lived,-11-

what he was wearing the night of the stabbing, and how long he had known Platt. While Carroll’s statements conflict on these matter s, the government presented evidence allowing a reasonable explanation why Carr oll may have been reluctant to clearly identify his attacker. Nonetheless, as the district court judge noted, “[w]e went from Dennis, to Dennis Platt, to Dennis Platt a/k/a James Platt, to James Platt to an ID of James Platt with a photograph . . . . So as a progression, there were no bumps along the road.” (R., Vol. V at 137.) Given such evidence, the district court did not err in ruling the govern ment proved by a preponderance of the evidence that Platt stabbed and killed Carro ll.

2. Similar Criminal Conduct Platt also argues that Carroll’s homicide does not provide a legal basis for an upward departure because it is not “prior simila r . . . criminal conduct” as required by USSG § 4A1.3(e) (2002). He argues Carr oll’s homicide, purportedly involving a robbery and stabbing, is not comparable to the conduct involved in the possession of a firearm. We rejected a similarargument In United States v. Concha , 294 F.3d 1248, 1254 (10th Cir. 2002), cert. denied, 537 U.S. 1145 (2003). There, Concha claimed the sentencing courterred in relying on the charge of attempted murder to support an upward dep arture on the charge of possession of a weapon “because it neither resultedin a criminal conviction and sentence nor was similar to the instant crime of co nviction.” Id. at 1253 n.4. We-12-

rejected this argument and specifically identified “prior similaradult criminal conduct not resulting in a criminal conviction ” as an appropriate basis for the upward departure. Id .; see also United States v. Cota-Guerrero, 907 F.2d 87, 89 (9th Cir. 1990) (assault with a deadly weapon and a ssault and battery may be viewed as similar to possession of a firearm by a f elon "[i]nasmuch as they show a propensity toward violence and a willingness to u se force"). Because the homicide and possession of a firearm with ammunitio n both “show a propensity toward violence and a willingness to use force,” th e district court did not err in treating these crimes as similar for the purposes o f USSG § 4A1.3(e) (2002). C. Authorization under 18 U.S.C. § 3553(b) Platt contends the district court erred in basing h is departure, at least in part, on his 1985 conviction. He argues his fiftee n-year-old possession conviction does not remove his case from the Guidelines heartl and. When considering a departure, the Supreme Court has instructed the sen tencing court to ask: 1) What features of this case, potentially, take itoutside the Guidelines' 'heartland' and make of it a special, o r unusual, case? 2) Has the Commission forbidden departures based onthose features? 3) If not, has the Commission encouraged departures based on those features? 4) If not, has the Commission discouraged departure s based on those features? Koon v. United States , 518 U.S. 81, 95 (1996) (quoting United States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993)). In reviewing the answers to these questions,-13-

we examine the record as a whole, “recognizing the district court’s special competence in determining the unusualness of a case .” United States v. Bartsma , 198 F.3d 1191, 1196 (10th Cir. 1999). Contrary to Platt’s argument, we need not separate the two prior offenses considered by the district court. The district cou rt was free to evaluate the cumulative effect of two uncounted prior similar of fenses. The court applied these facts and found Platt’s danger to the communi ty and his potential for recidivism was inadequately reflected in the basic Guideline criminal history category. The Commission has encouraged upward dep arture in such instances. USSG § 4A1.3. Therefore, “the court is authorized to depart if the applicable Guideline does not already take it into account.” Koon, 518 U.S. at 96. Platt argues the existence of a prior similar conviction has been taken into account by discounting convictions that are over fifteen years old. Even if true, the presence of two uncounted prior similar offenses was not taken int o account in the Guideline addressing a felon illegally in possessio n of a weapon and ammunition.
See USSG § 2K2.1. The district court correctly determ ined an upward departure was authorized and justified by the facts of the ca se. D. Departure to an Unreasonable Degree When reviewing whether the district court abused it s discretion in applying an upward departure, we look to "the seriousness of the offense, the need for just-14-

punishment, deterrence, protection of the public, c orrectional treatment, the sentencing pattern of the Guidelines, . . . and the need to avoid unwarranted sentencing disparities." Jones, 332 F.3d at 1305 (quotation marks and citation omitted). The district court based the degree of t he departure on the Guideline parameters for the prior offenses when adding six p oints to Platt’s criminal history category. The points resulted in an increa se from a category II to a category IV, in turn increasing the guideline range from 30-37 months to 41-51 months imprisonment. When the defendant has a history of repeated crimin al conduct, a district court should consider the need "that a clear messag e be sent to society that repeated criminal behavior will aggravate the need for punishment with each recurrence." USSG Ch.4, Pt.A, intro. comment. Giv en Platt’s repeated criminal behavior and his potential for recidivism, we concl ude the district court's twolevel upward departure was not an abuse of discreti on. II. Imposition of a Fine Platt argues the district court erred in imposing afine of $1,000.00 because he did not have a present or future ability to pay. The PSIR revealed Platt had debts of approximately $1,500.00 and had no assets. He spent the years 1988 through 1998 in prison and had failed to find steady employment since his release. In his view, the district court had no basis for fi nding his ability to pay a fine.-15-

We review the district court’s imposition of a fine for an abuse of discretion. A fine is required in all cases “excep t where the defendant establishes that he is unable to pay and is not likely to becom e able to pay any fine.” USSG § 5E1.2(a). Factors which the district court shall c onsider include: (1) the need for the combined sentence to reflect th e seriousness of the offense . . ., to promote respect for the law, to provide just punishment and to afford adequate deterrence; (2) any evidence presented as to the defendant’s abi lity to pay the fine (including the ability to pay over a period of time) in light of his earning capacity and financial resources. USSG § 5E1.2(d)(1) and (2). The fact a defendant i s indigent at the time of sentencing does not preclude a fine from being impo sed. United States v. Klein , 93 F.3d 698, 706 (10th Cir.), cert. denied, 519 U.S. 1048 (1996). Even if we assume Platt adequately established a present inabi lity to pay a fine, nothing in the record indicates he established a future inabil ity to pay. The fine was to be paid over the three year period of supervised relea se. He was forty-nine years old, had a high school diploma, and completed an el ectrician’s program while serving a prior prison term. Platt presented no evidence he would be unable to find a job after serving his prison term. The dist rict court did not abuse its discretion.
CONCLUSION In sum, we conclude: (1) the district court suffic iently articulated a valid-16-

reason for its departure from the Guidelines, (2) t he factors considered by the district court advanced the statutory objectives an d were not prohibited, (3) the factors were authorized and justified by the facts of the case, and (4) the degree of departure was reasonable. In addition, the dist rict court did not abuse its discretion when it imposed a fine. Accordingly, we AFFIRM

.

Entered by the Court: TERRENCE L. O’BRIEN United States Circuit Judge