PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4886

DESMOND CHARLES LAWRENCE,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CR-96-449)

Argued: September 23, 2003

Decided: November 13, 2003

Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion,

in which Judge Widener and Judge Niemeyer joined. 

COUNSEL

ARGUED: Allen Bethea Burnside, Assistant Federal Public

Defender, Columbia, South Carolina, for Appellant. John Michael

Barton, Assistant United States Attorney, Columbia, South Carolina,

for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States

Attorney, Columbia, South Carolina, for Appellee. 
OPINION

WILKINSON, Circuit Judge: 

Appellant Desmond Charles Lawrence robbed one bank and

attempted to rob another bank on June 14, 1996, in Columbia, South

Carolina. Lawrence pled guilty to one count of bank larceny, 18

U.S.C. § 2113(b), and was convicted by a jury of attempted unarmed

bank robbery, 18 U.S.C. § 2113(a). After he twice successfully

appealed for resentencing, the district court resentenced Lawrence to

240 months for unarmed bank robbery and 22 months for bank larceny, to be served consecutively. Lawrence’s present contention is

that the district court erred in concluding that he was a de facto career

offender and upwardly departing on that basis. Because the district

court’s upward departure was an appropriate and reasonable response

to the court’s finding that Lawrence’s criminal history category significantly underrepresented the seriousness of his criminal history and

his likelihood of recidivism, we affirm the sentence. 

I.

On June 14, 1996, Desmond Charles Lawrence attempted to rob

one bank and successfully robbed another bank in Columbia, South

Carolina in rapid succession. At 3:30 p.m. he gave a bank teller a

handwritten hold-up note, but fled with nothing when he saw the

teller dialing 911. Approximately half an hour later, Lawrence entered

another bank, distracted a teller, grabbed $1591 in cash from the teller’s drawer, and ran out of the bank. Lawrence fled to Los Angeles,

and five days later turned himself in to federal authorities. 

On December 30, 1996, Lawrence entered a guilty plea to one

count of bank larceny, 18 U.S.C. § 2113(b). On January 6, 1997, a

jury convicted Lawrence of attempted unarmed bank robbery, 18

U.S.C. § 2113(a). On February 24, 1997, the trial court sentenced

Lawrence to 240 months on the unarmed bank robbery charge and

120 months on the bank larceny charge, to be served consecutively.

Lawrence appealed his sentence, and the case was remanded twice for

resentencing. See United States v. Lawrence, 161 F.3d 250, 255-56

(4th Cir. 1998) (remanding for resentencing so that the district court

could more completely explain how it arrived at the sentence); United

2 UNITED STATES v. LAWRENCE
States v. Lawrence, 248 F.3d 300, 304-05 (4th Cir. 2001) (remanding

for resentencing on grounds that Fed. R. Crim. P. 43 required the

defendant’s actual presence at sentencing). 

On November 5, 2002, the district court resentenced Lawrence.

The Presentence Report showed that Lawrence’s offense level was 22

and that he had a criminal history category of V, which resulted in a

sentencing guideline range of 77-96 months. The district court determined that Lawrence’s criminal history did not fully reflect the seriousness of Lawrence’s past criminal conduct and the likelihood that

Lawrence would commit other crimes. Pursuant to section 4A1.3 of

the Sentencing Guidelines, the district court decided on an upward

departure from the criminal history category V. The district court

detailed several independent grounds for an upward departure and

determined that the appropriate criminal history category was VI,

which called for a sentencing range of 84-105 months. 

The district court then found that an upward departure to category

VI still failed to capture the full seriousness of Lawrence’s past

offenses and his likelihood of recidivism. Since Lawrence had only

one and not "at least two prior felony convictions of either a crime

of violence or a controlled substance offense," under U.S.S.G.

§ 4B1.1 he could not be formally classified as a career offender. But

the district court nevertheless determined that a number of Lawrence’s previous crimes and convictions were sufficiently analogous

to qualifying felonies that they could be considered for all intents and

purposes a second predicate conviction. As a result, the district court

found that Lawrence was a de facto career offender and departed from

the previously calculated offense level of 22 to the base offense level

of 32 for a career offender. The combination of criminal history category VI and a base offense level of 32 resulted in a sentencing range

of 210-262 months. The district court sentenced Lawrence to 240

months for unarmed bank robbery and 22 months for bank larceny,

to be served consecutively. 

II.

Lawrence argues that the district court erred in concluding that he

was a de facto career offender and in upwardly departing on this

basis. "A district court must impose a sentence within a defendant’s

UNITED STATES v. LAWRENCE 3
guideline range ‘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 Commission in formulating the guidelines that should result in a sentence different from that

described.’" United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992)

(quoting 18 U.S.C. § 3553(b) (2000)). The sentencing court must first

identify a particular aggravating or mitigating circumstance not adequately considered by the Sentencing Commission in formulating the

Sentencing Guidelines. Second, the sentencing court must determine

that the circumstance is of sufficient importance and magnitude that

a departure from the guideline range should result. Third, the extent

of any departure adopted by the sentencing court must be reasonable.

See United States v. Cash, 983 F.2d 558, 560 (4th Cir. 1992). 

The Sentencing Commission has expressly identified some circumstances that it did not adequately consider, including the inadequacy

of a defendant’s criminal history category. See United States v. Summers, 893 F.2d 63, 67 (4th Cir. 1990). Section 4A1.3 of the Guidelines expressly authorizes sentencing courts to upwardly depart when

the defendant’s "criminal history category significantly underrepresents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit further crimes," U.S.S.G.

§ 4A1.3, and the district court relied on this section for its upward

departure. 

We do not believe that the district court erred in the nature or in

the extent of the departure from Lawrence’s criminal history category

or base offense level. We need not conclude whether an abuse of discretion standard, see Koon v. United States, 518 U.S. 81, 99-100

(1996), or de novo review applies to this case, see Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of

2003, Pub. L. No. 108-21, § 401(d), 117 Stat. 650, 670 (amending 18

U.S.C. § 3742(e)), because we find that the result would be the same

under either standard of review. 

The district court detailed several independent grounds for both the

departure from criminal history category V to category VI and the

finding that Lawrence was a de facto career offender. 

4 UNITED STATES v. LAWRENCE
A.

Although Lawrence only indirectly challenged the court’s determination that a departure from criminal history category V to category

VI was appropriate,1 it is important to confirm the fact that the district

court soundly grounded this initial step. 

"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, the court may consider imposing a sentence departing

from the otherwise applicable guideline range." U.S.S.G. § 4A1.3. "A

departure under this provision is warranted when the criminal history

category significantly underrepresents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit further crimes." Id. Section 4A1.3 allows sentencing judges to

consider reliable information which "may include, but is not limited

to, information concerning: (a) prior sentence(s) not used in computing the criminal history category (e.g. sentences for foreign and tribal

offenses); (b) prior sentence(s) of substantially more than one year

imposed as a result of independent crimes committed on different

occasions; (c) prior similar misconduct established by a civil adjudication or by a failure to comply with an administrative order; (d)

whether the defendant was pending trial or sentencing on another

charge at the time of the instant offense; (e) prior similar adult criminal conduct not resulting in a criminal conviction." Id.

The district court identified three independent reasons why the sentencing range failed to accurately reflect Lawrence’s criminal history

or his likelihood of recidivism. First, the district court found that

Lawrence’s extensive juvenile record, which included multiple thefts

and charges for assaults, was not used to determine his criminal history category. Second, the district court noted that Lawrence was

involved in no fewer than six incidents in which he assaulted or

fought with others in custody, as well as multiple other incidents of

1Lawrence’s arguments focus on challenging the de facto career

offender designation, but the district court’s upward departure from the

77-96 month range includes the upward departure from criminal history

category V to category VI. 

UNITED STATES v. LAWRENCE 5
misconduct ranging from physical interference with guards to defiance of guards’ orders. This misconduct was handled administratively

by correctional officials and therefore was not reflected in Lawrence’s

criminal history. The district court noted a departure was appropriate

because Lawrence’s juvenile criminal history and conduct while in

custody made his criminal history conduct considerably more serious

than that of a "hypothetical person, [who] had only defendant Lawrence’s adult and point countable offenses," yet shared the same criminal history category. Third, the district court found that Lawrence’s

likelihood of committing other serious crimes was "clearly present."

The district court emphasized the number and type of the incidents

and the fact that Lawrence had rarely, if ever, successfully completed

parole or probation without problems or violations. Lawrence even

suggested at his original sentencing that he would break the law again

and later demonstrated this resolve through an attempted jail break

and carjacking while in transit to a federal prison in Atlanta. 

These three factors, both individually and collectively, support the

district court’s decision that an upward departure was appropriate.

The district court followed the guidance that the Policy Statement for

U.S.S.G. § 4A1.3 provides and moved Lawrence up one category

from criminal history category V to criminal history category VI. This

change, as noted, increased Lawrence’s sentencing range from 77-96

to 84-105 months. 

B.

The district court next determined that even the upgraded sentencing range of 84-105 months failed to adequately reflect the seriousness of Lawrence’s past conduct and his likelihood of committing

future crimes. For this reason, the court proceeded to find that Lawrence was a de facto career offender and therefore departed directly

to the career offender guidelines range.2

2

"A defendant is a career offender if (1) the defendant was at least

eighteen years old at the time of the instant offense of conviction, (2) the

instant offense of conviction is a felony that is either a crime of violence

or a controlled substance offense, and (3) the defendant has at least two

6 UNITED STATES v. LAWRENCE
This court has laid out three possible approaches for a district court

to follow when it finds that the highest criminal history category, category VI, is inadequate or that the defendant would be considered a

career offender, but for the defendant’s successful challenge to a

predicate offense. See United States v. Cash, 983 F.2d 558, 561 (4th

Cir. 1992). First, a district court may exercise its discretion not to

depart. Second, a district court may determine the extent of a departure by extrapolating from the existing sentencing table and considering the appropriateness of successively higher categories level by

level. Id. Third, a sentencing court may act as the district court did

in the present case and directly depart to sentencing based on de facto

career offender status: "[o]nce the district court determines that a

departure under U.S.S.G. § 4A1.3 is warranted and that the defendant’s prior criminal conduct is of sufficient seriousness to conclude

that he should be treated as a career offender, the district court may

depart directly to the guideline range applicable to career offenders

similar to the defendant." Id. at 562; see also United States v. Hines,

943 F.2d 348, 354-55 (4th Cir. 1991) (per curiam); United States v.

Gardner, 905 F.2d 1432, 1437-39 (10th Cir. 1991); United States v.

Campbell, 888 F.2d 76, 78-79 (11th Cir. 1989). 

This court has further explained the de facto career offender classification in terms that apply to Lawrence’s case. "[T]he district court

may sentence a defendant as a de facto career offender when he has

committed two crimes that would qualify as predicate crimes for

career offender status, but for some reason cannot be counted."

United States v. Harrison, 58 F.3d 115, 118 (4th Cir. 1995). Further,

"a defendant may be sentenced as a de facto career offender . . . if two

of the defendant’s prior crimes of violence are consolidated for sentencing purposes and thus do not constitute two separate predicate

offenses." Id.

prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1. "The term ‘crime of violence’ means

any offense under federal or state law, punishable by imprisonment for

a term exceeding one year, that — (1) has as an element the use,

attempted use or threatened use of physical force against the person of

another, or (2) is burglary of a dwelling, arson, or extortion, involves use

of explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another." U.S.S.G. § 4B1.2. 

UNITED STATES v. LAWRENCE 7
That is what happened here. Lawrence committed two bank robberies on January 14, 1991, in Hawaii, which were consolidated for

sentencing on April 29, 1993. These robberies occurred within fiftythree minutes of each other and were treated as related for Sentencing

Guidelines purposes, because they "resulted from offenses that (A)

occurred on the same occasion, (B) were part of a single common

scheme or plan, or (C) were consolidated for trial or sentencing."

U.S.S.G. § 4A1.2 n.3. If the second robbery conviction had not been

treated as a related prior sentence, it would have served as the second

predicate offense of a felony crime of violence to establish Lawrence’s de jure career offender status. See U.S.S.G. § 4B1.1. 

"The guidelines do take into account the possibility that an offender

may be sentenced for multiple related offenses at one time and properly count such an incident as a single offense. Nothing in the guidelines, however, indicates that such a calculation is designed to treat

more leniently a defendant who is fortuitously sentenced at one hearing on two disparate charges." United States v. Hines, 943 F.2d 348,

354 (4th Cir. 1991) (per curiam). The district court thus correctly held

that the fact that the two bank robberies were treated as related and

not counted separately under the Sentencing Guidelines for calculating the criminal history category, does not bar the determination that

these crimes were factually distinct, and thus not adequately considered under the Guidelines for the purposes of an upward departure.

See id. at 355. These two crimes were not considered separately in the

Presentence Report’s determination of Lawrence’s criminal history or

in the district court’s decision on an upward departure to criminal history category VI.

Lawrence argues, however, that U.S.S.G. § 4A1.1(f) shows that the

Guidelines anticipate how to address violent felonies as related convictions for criminal history calculations. That section states that the

district court should "[a]dd 1 point for each prior sentence resulting

from a conviction of a crime of violence that did not receive any

points under (a), (b), or (c) [of § 4A1.1(f)] because such sentence was

considered related to another sentence resulting from a conviction of

a crime of violence, up to a total of 3 points for this item." U.S.S.G.

§ 4A1.1(f). Lawrence therefore asserts that only one point should

have been added to his criminal history for the second bank robbery,

8 UNITED STATES v. LAWRENCE
rather than the district court’s upward departure to de facto career

offender status. 

Lawrence’s contention that a point should have been added under

§ 4A1.1(f) to his criminal history for each prior crime of violence that

was treated as a related crime for sentencing does nothing to render

§ 4A1.3 inoperative. Section 4A1.1(f) does not undermine the appropriateness of the upward departure decision under § 4A1.3 since the

district court could still determine at the end of the day that Lawrence’s criminal history significantly underrepresented the seriousness

of the defendant’s criminal history and the likelihood of recidivism.

It is unlikely that the Sentencing Commission sought to place sentencing courts in a virtual straightjacket by limiting consideration of all

related convictions of crimes of violence to a maximum of three criminal history points. Such an approach would dictate that no matter

how heinous a violent crime spree, it could at most boost a defendant’s criminal history by three points. This approach could also

undermine the goal of uniformity in sentencing. Individuals who for

reasons of convenience or economy fortuitously had prior convictions

consolidated for sentencing might receive much different treatment

than defendants who had separate prior sentences. See United States

v. Hines, 943 F.2d 348, 354-55 (4th Cir. 1991) (per curiam). 

Our prior recognition of de facto career offender status exists to

remedy precisely the type of situation in which a district court determines that in the final analysis a defendant’s criminal history category

is inadequate. Section 4A1.3 was drafted in classic catch-all terms for

the unusual but serious situation where the criminal history category

does not adequately reflect past criminal conduct or predict future

criminal behavior. The relatedness of the two bank robbery convictions matters for the purposes of adding an additional criminal history

point under U.S.S.G. § 4A1.1(f). But nothing in the Sentencing

Guidelines prohibits the district court from considering the second

factually distinct but related conviction as a reason for upward departure under U.S.S.G. § 4A1.3. 

This approach is consistent with this court’s principle that "the sentencing guidelines should be applied as written" and that "[t]o effectuate this principle, double counting is permissible under the sentencing

guidelines except where it is expressly prohibited." United States v.

UNITED STATES v. LAWRENCE 9
Wilson, 198 F.3d 467, 472 n.* (4th Cir. 1999) (internal quotation

marks and citations omitted). The defendant seeks to nullify the force

of section 4A1.3, but we see no indication that the Sentencing Commission so intended. To the contrary, Lawrence seems just the kind

of defendant for whom this section was included. 

The district court also found two other independent bases for treating Lawrence as a de facto career offender. First, Lawrence admitted

committing two other bank robberies on January 7, 1991 and January

14, 1991 for which he was never convicted. Lawrence does not contest his admission of these two unsentenced bank robberies. Second,

Lawrence pled and was convicted for third degree assault for striking

a Hawaii state prison guard on the head with a laundry iron and a

metal box on October 18, 1985. The district court stated that the

underlying facts of this assault conviction could satisfy assault second, a felony under Hawaiian law. We need not rule on these alternative bases for the departure, as the district court’s treatment of the two

1991 bank robbery convictions was sufficient. 

III.

The district court declared that it "never had before this court any

other defendant whose conduct in my opinion more clearly deserves

the departure based upon the inadequacy analysis which is allowed in

4A1.3 nor one who is more correctly labeled under the facts of the

case a de facto career offender." This judgment, and the carefully

detailed evidence substantiating the district court’s upward departure,

warrants affirming the decision to classify Lawrence as a de facto

career offender and to sentence him to a term of 262 months.

AFFIRMED

10 UNITED STATES v. LAWRENCE