*This order and judgment is not binding precedent, except under the doctrines of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 judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 9/23/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 96-6066

v. W.D. Oklahoma

JIMMIE LEE GREER,

Defendant - Appellant.

(D.C. No. CR-95-139-R) 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.
-2-

Jimmie Lee Greer pled guilty to providing or possessing contraband in prison in

violation of 18 U.S.C. § 1791(a)(2). Under the Sentencing Guidelines, Greer’s offense

fell under Offense Level 11 which, with Greer’s Criminal History Category VI,

established a guideline range of 27 to 33 months. The district court departed upward to

Offense Level 13, Category VI, guideline range 33 to 41 months, and imposed a sentence

at the top of that range -- 41 months.

Greer challenges the upward departure, contending: 1) that the district court did

not identify factors which showed his criminal record was egregious and serious beyond

the applicable guideline parameters without enhancement; and 2) that the court failed to

provide an adequate factual basis for its decisions to depart upward from the Guidelines

and the degree to which it departed. We affirm.

At the time of the offense, Greer was incarcerated at the Federal Correctional

Institution in El Reno, Oklahoma, pending transfer to the New Mexico Department of

Corrections. He engaged in disruptive behavior during a meal. When officers sought to

remove him from the dining area, he attempted to discard an eight-inch sharpened metal

instrument in a trash can. When officers moved to search the trash can, Greer grabbed the

sharpened instrument and threatened two officers. The officers subdued him and neither

officer was injured.

Greer was indicted on three counts. Count one alleged that he knowingly

possessed a prohibited object designed for use as a weapon. Counts two and three alleged
1The Supreme Court adopted the following inquiry that a sentencing court must

make before departing from the Guidelines: “‘1) What features of this case, potentially,

take it outside the Guidelines’ ‘heartland’ and make of it a special, or unusual, case? 2) 

Has the Commission forbidden departures based on those features? 3) If not, has the

Commission encouraged departures based on those features? 4) If not, has the

Commission discouraged departures based on those features?’” Koon at 2045 (quoting

United States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993)).

-3-

that he forcibly assaulted, opposed, impeded, intimidated and interfered with two

corrections officers. Greer pled guilty to count one, and counts two and three were

dismissed.

We review a departure from the Sentencing Guidelines for abuse of discretion. 

Koon v. United States, ___ U.S. ___, ___, 116 S. Ct. 2035, 2047-48 (1996). A district

court is required to impose a sentence within the Guidelines unless it determines “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.” 18 U.S.C.

§ 3553(b). In order for the district court to depart from the Guidelines, “certain aspects of

the case must be found unusual enough for it to fall outside the heartland of cases in the

Guideline.” Koon, 116 S. Ct. at 2046.1 The district court’s decision to depart from the

Sentencing Guidelines “will in most cases be due substantial deference, for it embodies

the traditional exercise of discretion by a sentencing court.” Id.

The Sentencing Guidelines state:
-4-

The Commission contemplates that there may, on occasion, be a case of an

egregious, serious criminal record in which even the guideline range for

Criminal History Category VI is not adequate to reflect the seriousness of

the defendant’s criminal history. In such a case, a departure above the

guideline range for a defendant with Criminal History Category VI may be

warranted. In determining whether an upward departure from Criminal

History Category VI is warranted, the court should consider that the nature

of the prior offenses rather than simply their number is often more

indicative of the seriousness of the defendant’s criminal record. . . . Where

the court determines that the extent and nature of the defendant’s criminal

history, taken together, are sufficient to warrant an upward departure from

Criminal History Category VI, the court should structure the departure by

moving incrementally down the sentencing table to the next higher offense

level in Criminal History Category VI until it finds a guideline range

appropriate to the case.

U.S.S.G. § 4A1.3 (emphasis added). “‘[I]nstead of hypothesizing a criminal history range

more than VI, the guidelines require a sentencing court to look to the other axis and

consider the available ranges from higher offense levels.’” United States v. Okane, 52

F.3d 828, 833-34 n.5 (10th Cir. 1995) (quoting United States v. Carr, 5 F.3d 986, 994 (6th

Cir. 1993)).

The district court adopted such a procedure in this case. It departed from the

Guidelines because it determined that Criminal History Category VI did not accurately

reflect Greer’s past criminal involvement. In doing so, the court considered seven major

offenses in the presentence report for which Greer was found guilty by prison disciplinary

committees, but not subjected to criminal charges. These offenses included assault and

battery against prison officers and inmates, and possession of weapons. It was well

within the discretion of the district court to find that Greer’s prior offenses in prison were
-5-

not adequately reflected in his criminal record and were sufficiently serious to warrant an

incremental upward departure from Offense Level 11 to Offense Level 13. We conclude

that the departure was not an abuse of the court’s discretion. For the foregoing reasons,

the ruling of the district court is AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge