FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 13, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-10390

Non-Argument Calendar

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D. C. Docket No. 04-00145-CR-1-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

SAMUEL MOORE, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(August 13, 2007)

Before BLACK, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Samuel Moore appeals his 120-month sentence for bank robbery imposed
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upon resentencing. After review, we affirm.

I. BACKGROUND

Moore was indicted for committing bank robbery by use of a dangerous

weapon, in violation of 18 U.S.C. § 2113(a) and (d). Moore pled not guilty and

was found guilty by a jury. According to the Presentence Investigation Report

(“PSI”), Moore entered a bank, slid a bag to the teller and told her to “[f]ill the bag

with money. I’ve got a gun.” Moore then pulled his shirt up to display the grip of

an air gun. After obtaining the money and leaving the scene, Moore led police on a

high-speed chase. 

The PSI assigned Moore five criminal history points for these prior

convictions: (1) one point for “theft by taking,” where Moore attempted to commit

armed robbery by entering a Winn-Dixie grocery store with what appeared to be a

handgun and demanding money and for which he received a sentence of 12

months’ probation; (2) three points for a “robbery by sudden snatch,” where he

obstructed law enforcement by backing his car into a police officer’s vehicle and

attempted to elude police; and (3) one point for a 1995 conviction for driving under

the influence (“DUI”). With two criminal history points for committing the instant

offense while on probation, the PSI assigned a criminal history category of IV. 

With a total offense level of 27, the PSI recommended an advisory guidelines
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range of 100 to 125 months’ imprisonment.

At his initial sentencing, Moore objected to the inclusion of one point for the 

1995 DUI conviction because he had not been represented by counsel. The district

court indicated that it would not consider the DUI conviction in computing

Moore’s criminal history score. This should have reduced Moore’s criminal

history category to III, resulting in an advisory guidelines range of 87 to 108

months’ imprisonment. However, the district court calculated an advisory

guidelines range of 100 to 125 months, which was consistent with a criminal

history category IV, and imposed a 120-month sentence.

In Moore’s first appeal, this Court concluded: (1) that the district court had

not properly calculated Moore’s criminal history category as IV, and (2) that it

could not determine whether, absent the calculation error, the district court would

have imposed the same sentence. This Court vacated Moore’s sentence and

remanded with instructions for the district court to clarify its ruling on Moore’s

objection to the DUI point in his criminal history score and whether it intended for

Moore’s sentence to fall within the applicable advisory guidelines range or to

constitute a variance from the advisory guidelines range.

On remand, the district court confirmed that it had sustained Moore’s

objection to the DUI conviction. The district court clarified that it was making an
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upward departure in Moore’s criminal history category based on the fact that the

seriousness of Moore’s criminal history was not adequately represented, as

follows:

[W]hen I look at some of the underlying convictions, theft by

taking in a Winn-Dixie store where he only got one point, we go with

the prior sentence given by a previous judge as a rough proxy of the

seriousness of the crime. When I look at this, I think that’s not a good

proxy, that was more serious than a one-point offense and it should

have been a two or a three, that in my mind, it’s more serious.

And, likewise, the other snatching incident was, I think, more –

well, it got three points but it was a serious sort of incident . . . . It

really wouldn’t be a variance, it would be what I would have done

before Booker: I would have gone down one point for the DUI and

then I would have departed back up the same point for the seriousness

of his conviction with the Winn-Dixie and the seriousness with the

snatching at least one or two points. That gets him back to the same

place he was, so I view it as an upward departure based on the

inadequacy of [the] criminal history.

The district court also noted the violence running throughout Moore’s offenses and

the similarities between Moore’s prior Winn-Dixie theft conviction and the instant

bank robbery, as follows:

[T]his is a man who this is his second violent sort of robbery. It

may have been an air gun but there was a gun involved, he had

another robbery at a Winn-Dixie store, he had a snatching incident

and then he also banged into another policeman’s car. That’s too

many acts of violence for me to impose a sentence less than the

sentence I imposed.

The district court indicated that, if an upward departure under the guidelines had

been unavailable, it would have imposed the same sentence as a post-Booker
Post-Booker, we review a sentence for reasonableness. United States v. Hunt, 459 F.3d 1

1180, 1182 (11th Cir. 2006). A sentence can be procedurally or substantively unreasonable. A

sentence is procedurally unreasonable if “it is the product of a procedure that does not follow

Booker’s requirements, regardless of the actual sentence,” such as a failure to apply the

guideline provisions correctly. Id. at 1185 n.3. Moore raises only a claim of procedural

unreasonableness. 

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variance from the advisory guidelines range. The district court reimposed the 120-

month sentence. Moore filed this appeal.

II. DISCUSSION

Moore argues that the district court erred in imposing an upward departure

in his criminal history category.

After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district

court must consult and correctly calculate the defendant’s range under the

Sentencing Guidelines and then impose a reasonable sentence considering the

factors in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 786 (11th

Cir. 2005). Although Booker has rendered the guidelines range advisory, the

correct application of the individual guideline provisions is obligatory. United

States v. Brehm, 442 F.3d 1291, 1300 (11th Cir.), cert. denied, ___ U.S. ___,127 S.

Ct. 457 (2006).1

Under U.S.S.G. § 4A1.3, the district court may depart upwards in the

criminal history category if “reliable information indicates that the defendant’s

criminal history category substantially under-represents the seriousness of the
We review a district court’s decision to depart under U.S.S.G. § 4A1.3 for abuse of 2

discretion. United States v. Hernandez, 160 F.3d 661, 668 (11th Cir. 1998); see also United

States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (explaining that pre-Booker standards

of review apply to review of guideline calculations). In so doing, we review the district court’s

legal determination that it may rely on a particular factor as a basis for departure de novo, its

factual findings for clear error and the extent of the departure for reasonableness. See United

States v. Weaver, 920 F.2d 1570, 1573 (11th Cir. 1991).

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defendant’s criminal history or the likelihood that the defendant will commit other

crimes . . . .” U.S.S.G. § 4A1.3(a)(1). “[A]n upward departure may be appropriate

where the defendant had previously received an extremely lenient sentence for a

serious offense.” United States v. Phillips, 120 F.3d 227, 232 (11th Cir. 1997)

(quotation marks and emphasis omitted); see also U.S.S.G. § 4A1.3, cmt.

background (noting that extremely lenient past sentences may be appropriately

considered). In addition, the district court may consider the similarity of the

current offense to prior offenses in deciding whether to impose a § 4A1.3 upward

departure. See United States v. Castrillon-Gonzalez, 77 F.3d 403, 407 (11th Cir.

1996).2

Here, the district court did not abuse its discretion in departing on the basis

that Moore’s criminal history category under-represented the seriousness of his

criminal history. The district court considered the fact that Moore received only

twelve months’ probation for the Winn-Dixie theft offense, a sentence that did not

adequately reflect the seriousness of that offense. The district court also

considered similarities between the instant bank robbery and Moore’s prior
At sentencing and resentencing, Moore did not dispute the factual accuracy of criminal 3

history portion of his PSI. See United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007)

(explaining that undisputed factual matters in the PSI are deemed admitted and may be relied

upon by the district court in determining the defendant’s sentence); United States v. Bennett, 472

F.3d 825, 832-34 (11th Cir. 2006) (concluding that undisputed facts in the PSI relating to the

defendant’s prior convictions could be used to enhance the defendant’s sentence).

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offenses. Both prior offenses involved violent theft crimes. The Winn-Dixie

offense involved an attempted robbery in which Moore flashed what appeared to

be a gun. The robbery “by snatch” involved an attempt to elude police. 

Both the leniency of the sentences for prior offenses and the similarity of the

prior offenses are appropriate factors to consider in deciding to depart. 

Furthermore, these factors were adequately supported by the record. Finally, the 3

degree of the departure – from a category III to a category IV – is not unreasonable

under the circumstances.

Moore also contends that the district court’s upward departure constituted

double counting prohibited by United States v. Hunerlach, 258 F.3d 1282 (11th

Cir. 2001). Under Hunerlach, a district court may not make an upward departure

in the criminal history category for criminal conduct that was considered relevant

conduct in calculating the defendant’s offense level. 258 F.3d at 1286-87. Here,

Moore’s upward departure was not based on relevant conduct but on past criminal

conduct. Therefore, Hunerlach is inapplicable. 

For all these reasons, we conclude that the district court did not abuse its
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discretion in departing upward under § 4A1.3 and that Moore’s 120-month

sentence is not unreasonable.

AFFIRMED.