* The Honorab le Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by desig

nation NOT RECOMM

ENDED FO R FULL- TEXT PUBLI CATION File Name: 04a0006n.06 Filed: October 5, 2004 Case No. 03-2043 UNITED STATE S COURT OF APPEA LS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA Plaintiff- Appellant

. v. LADARIN Q . MITCHELL Defendant-Appellee, ) ) ) ) ) ) ) ) ) ON AP PE AL F ROM THE UNITED STATES DI STRICT COURT FO R T HE EASTERN DISTRI CT OF MICHI GAN

O P I N I O N

BEFORE: NELSON and COLE, Circuit Judges; MARBLEY, District Judge. * R. GUY COLE, JR. , Circuit Judge. The Gover

nment app eals the sentence imposed by the districtcourt on d

efenda nt La darin Q. Mitchell. Mitchell pled guilty to a violation of 18 U.S.C. § 922(g) and was assigned a criminal history in Category

IV in his Presentence I

nvestigation

Report. The di st ric t co urt con clu ded th at c rim in al h is to ry Ca teg ory IV “over-represented the seriousne ss of the defendant’s criminal history ,” and accordingly downwardly de

parted from t he sen tenci ng range required by Categ ory I

V based upon its conclusion that Mitchell’s cr

iminal history

categ ory would be more accurately

characterized as Category III. The Government appeals the sentence on the ground that the district court erred in gr anting Mitchell a downward departureof one criminal history c ategory because: (1) the judge failed to g ivethe require d notice o f his inten tion to gr ant a downw ard depa

rture; ( 2) Mitche ll’s assig nment in Category IV did not over-repre sent the seriousness of his criminal history; and ( 3) the district court impermiss ibly

departed based on Mitchell’s apparent substance abuse problem, age, and the fact that he had rejected a two-y

ear plea offer in state court. For the reasons stated below, we VACATE the sentence and REMAND to the districtcourt for resentencing consistent with this opinion. I. BACKGROUND Mitchell was arrested by Detroit Polic e

ona weapo ns vi olati on, af ter fi ring a gun int o the air in a public

park. Th e Way

ne County Prosecutor

offered Mitchell the opportunity to plead guilty to a state charge of b eing a fe lon in possession of a fire arm, a crime whic h carri es a

two-year sentence. When Mitchell declined a plea barga inin state c ourt, his case was referred to the United States Attorney for the Eastern District of Michigan pursuant to Project Safe Neighborhoods, a fede ral-state cooperative prog r am aimed at reducing gun violence. The U.S. Attor ney cha rged Mitchell with violating 18 U.S.C. § 922(g), wh ic h m ak es it a c ri me to be a f el on in po ss es si on of

a f ir ea rm . M it ch el l t he n p le d g ui lt y. The United States Probation Department thereupon prepared a Presentence Inve stigation Report (“PSI ”), dete

rmining that Mitchell had a

total off ense lev el of 17, s even cr im inal history points, and a

criminal history

cat ego ry of

IV. T he r equ ire d se nt enc in g ra nge , ac cor di ng t o t he P SI, should have been 37 to 46 mont hs. The PSI

furth er not ed tha t ther e were n o facto rs warr antin g a downward

depa rture fr

om this ran

ge. I n a writte

n objecti on to the PSI , Mitchell stated tha

t a downward

departu re was w arrant

ed beca use he ha d inadequ ate representa

tion in the Wa

yne County court. The basis for this objection was that Mitchell’s counsel in state cour t f ailed to recommend that he accept the two-y

ear plea offer, which was

arguably a more favorable sentence than he likelywould

receive in federal court. The Government filed a sentencing memorandum, contesting tha t a downward departure was wa rranted or even available. At sentencing, defense

counsel renewed his request for a downwa rd departure on the ground that Mitchell was not adequately advised by his attorney

in state court of the consequences of the

casebeing referred for

federa l prosec ution. In its response, the Government contende d that Mitchell’s state-court

attorne y w as well

aware of the possibility of referral for feder

al prosecution. The Government also noted that there was no eviden ce that M itchell

was given an inadequate period of time to consider the plea offered by the prosecutor. The district court then raised sua sponte the possibility

of a downward departure based on the over-representation of Mitchell’s criminal history inCategory

IV. Turning its attention to the PSI , t h e district court noted that Mitchell had seven criminal history points, resulting in a criminal history category of I V. The district court then focused

onone conviction, a 1995 conviction for attempted possession with the intent to distribute less than 50 gramsof cocaine, and

conclude d that this p ortion of Mitchell’ s recor

d, which a

dded two p oints inthe crimi

nal histor y c alculati on, “ove

r-repr ese nted t he seriousness of the defendant’s criminal history.” The removal of these two points, towhich the Government objected, resulted in five criminal history poi nt s an d t he r edu cti on o f Mi tch ell ’s c rim in al h is to ry to Cat ego ry II I, whi ch carr ies a sentencingrange

of thirty to thirty -seven m onths. The

dis tri ct court

sentenc ed Mitche ll to thirty months’ imprisonme

nt, recommending

that Mitchell be placed in a drug treatment program for the first twelve months of his incarceration. II. ANALY SIS A. Over-Representation of Seriousness of Criminal HistoryPursuant to the Prose cutoria

l Remedie s and Othe

r Tools to End the Exploitation of Children Today Act of 2003 (“PROTECT ACT”), “we review de novo w hether the district court has complied with the Act's requirement

that the reasons for departure must be stated with specificity in the written order of judgment and commitment and whether the [district court's] departure was based on an impermiss ible ground.” United States v. Camejo , 333 F .3d 66 9, 675 (6th C ir. 20 03) (q uoti ng United States v. Tarantola, 332 F.3d 498, 500 (8th Cir.2003)). Mitchell c on cedes that his criminal history c alculates to be Category IV under the fede

ral sentencingguidelines. From there, the district judge applied U.S.S.G. § 4A1.3 (2002), which allows

a judge to reduce the criminal history category of a defendant if it “significantly over-represents the signific ance of

the defe ndant’s c riminal hi story .” The r

elevant Guideline

states: There may be ca ses where the court concludes that a de fendant ’s c riminal history categ ory s ignificantly ove

r-represents the significance of the defendant’s criminal history or the likelihood that

the defe ndant will commit fur

ther cr imes. An example might i nclude the case of a defendant with two minor misdemeanor convict ion s closeto ten year

s prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. The court may conclude that

the de fendant’s criminal histo ry w as significantly less serious than that of most defendants in the same criminal history category (Category II ), a nd therefore consider a downwar d departu re from t he guid elines. U.S.S.G. § 4A1.3 (2002). Th us, to determine whether Mitchell’s criminal history category signific antly

over-represents the significanc e of his criminal history, we mus t consider whether Mitchell’s criminal

history is “sign ificantl y le ss seriou s than that of most defe

ndants in t

he same criminal history category.” Uponreview of the record and Mitchell’s criminal history, we

conclude that the se

riousnes s of Mitchell’s criminal history is not significantly over-represented by

his designation in Category IV. The distr

ict cour t remove d the two c

riminal hi story

points ass igned f

or Mitche ll’ s 1995 convictionfor attempted possession with intent to distribute less than 50 grams of cocaine. T hedistrictcourt , howe ver, er red in singl ing-ou t thi s part icula r conv icti on. Th e gu ideli ne in question

requires us to consi der the s eriousne ss of Mitchell’s criminal history as a whole, which the district court did not do. Further, the record regarding the 1995 convictionreflects that alt hough Mi tchell

wa s init ially charg ed with possession with intent to distribute crack, and pled guilty to the lesser attempt charge, when arre sted he possessed 27 baggies of cr ack cocaine which he

was selling on the street. In fa

ct, he wa s c aught b ecause he tried to sell crack to a plain-c lothes police officer. The districtcourt er

red in its d

ecision not to look a

t these fa cts wh en considering a departure unde r U.S.S.G. §4A1.3. See Unite d States v . Ruffin , 997 F.2d 343, 345-46 (7th Cir. 1993). Considering Mitchell’ s crimina l history as a whol e , w e conclude that the seriousness of Mitchell’s criminal history is not significantly over-represented by

his desig nation in Category IV. The inquiry is not confined to examining the convictions for which Mitc

hell rec eived poi

nts in his criminal history calculation. See United States v. Barber , 200 F.3d 908, 912-13 (6th Cir. 200 0). In addition to the thre e crim es whi ch resulted in the calculation of seven criminal history points that placed Mitchell in a category

IV criminal history , Mitchell also has four other convict ions no t included in his crim

inal histor y c alculati on beca

use they occur

red while he was a minor or they fall outside the appli cable

ti me pe ri od fo r i nc lu si on in th e s co ri ng of hi s c ri mi na l h is to ry. These include: 1.) a conviction for unlawful driving away of an auto, receiving

and concealing stolen property over $100, and fleeing and

alluding a police officer at ag e 17; 2.) a conviction for disturbing the peace for dancingin fr ont of the mal l at age 17; 3.) a conviction for rec kless diving at age 17; and 4.) a convictionfor car rying a conc ealed w eapon at age 19. These convictions are properly

considered when determining Mitchell’s eligibility for this departure. Fi na ll y, we reject

the Government’s argument that the district court impermissibly departed

onthe basis of age, drug abuse , or the state court plea offer. I t cannot be said, on

this record, thatthe dis tri ct court actually departed on any

of those bases, although the record is less than clea r. Further, whether a district court may consider age or drug

abuse as a tool to interpret the severity of

a criminal history

(when considering either an upward or downward departure) is an open question inthis circuit, and one which we need not decide in this case. See, e.g., United States v. Wallace ,

— F.3d —, 20 04 WL 16 36385 (8th Cir. July 23, 2004) (youth, or the a bsence thereof, is a relevant factor of downward departure from career offender

status). We shoul d al so note that, although not argued by Mitchell, he would not be entitled to a do wnward

d eparture on the ground that his criminal history significantly ove

r-represents the likelihoodthat he will commit further crimes. U.S.S. G. § 4A1.3 provides “that a defendant’s criminal hi st or y c ate gory signific antly

over-r eprese nts . . . the

likelihood

that the d

efenda nt will commit further crimes.” The Gove

rnment po ints out that Mitchell “has been in continuous contact with the crimi nal justic e sy stem since

1989,” th at he has

“routine ly v

iolated the terms of

his relea se while on probation and

parole,” and that he has “committed new crimes while under supervision.” Mitchell i s not entitl ed to a de parture on those g

rounds.

B. Notice

of Intentio n to Depar

t Downwardly Fi na ll y, the Government argues that the district cou rt erre d by

failing to give i t reasonable notice of its intention to grant a downward departure. Rule 32(h) of the Federal Rules of Criminal Procedu re provi des: Before the cour

t m ay depa

r t from the applicable sentencing rang e on a ground not identified for departure either in the presentenc e report or in a party’s pre hearing submission, the court

must give the parties reasonable notice that it is contemplating a departure. The notice must specify any g round on which the court is contemplating a departure.We have previously note d that such failure is, in fact, error, see United States v. Kuhn , 345 F.3d 431, 436 (6th Cir. 2003) (“The district court’s fa i lure to no tify the Gove rnment tha

t it was pla

nning to depart on this bas is was e rror.” ); United States v. Yang , 281 F.3d 534, 547 (6th Cir. 2002) (“The districtcourt’s failure to give notice of its intention to depa rt, we conc lude, was error as well.”). Because, however, we determine that the departur e was in error in any case, w e need not rule on

this claim. III. CONCL USION For the preceding reasons, we c onclude that the district court erred i n its determination that Mitch ell’s c riminal hi story categ ory of IV signific antly

over-r eprese nts the se

riousnes s of his criminal history. Mitchel l’s sentence is therefore VACATED and the case is REMANDED for resentencing consistent with this opinion.