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D ock e t 99-3132

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. e du/thir dc ir c uit_1999/220Filed July 30, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3132

UNITED STATES OF AMERICA

v.

CHRISTOPHER PHILLIP FORDHAM, Appellant

Appeal from the United States District Court for the Middle District of Pennsylvania
D.C. No.: 97-cr-00018-1 District Judge: Honorable James F. McClure, Jr.

Submitted Under Third Circuit LAR 34.1(a) July 13, 1999

Before: GREENBERG, ALITO, and ROSENN, Circuit Judges.

(Filed July 30, 1999)

George J. Rocktashel Office of United States Attorney
240 West Third Street
P.O. Box 548 Williamsport, PA 17703 Counsel for Appellee

G. Scott Gardner
2117 West 4th Street Williamsport, PA 17701 Counsel for AppellantOPINION OF THE COURT

ROSENN, Circuit Judge:

Appellant, Christopher Phillip Fordham, pleaded gui lty to conspiracy to commit money laundering in violation of 18 U.S.C. S 1956(h). The Presentence Investigation Rep ort ("PSR") calculated the defendant's guideline range at 87 to 108 months based on a Criminal History Category of I. The
United States District Court for the Middle Distric t of Pennsylvania, the Honorable James F. McClure, Jr. presiding, found that a Criminal History Category o f I significantly under-represented the seriousness of the defendant's prior record. Consequently, the court d eparted upward to a Criminal History Category of II, which calculated the increased guideline range at 97 to 1 21 months. The court then imposed a 120 month term of imprisonment plus a special assessment of $100. 1 Defendant appealed. We affirm.

I.

A government investigation revealed that the defend ant procured large amounts of marijuana in Arizona and Mexico, which he had others transport and sell in N ew York and Pennsylvania. The defendant also used Federal E xpress to transport marijuana to individuals located in St ate College, Pennsylvania. In addition, at the defendan t's direction, several individuals flew to New York and Pennsylvania carrying marijuana. Following the deli veries,
the defendant received either wire transferred fund s in Tucson, Arizona or, if not by wire transfer, those who transported the marijuana to New York and Pennsylva nia would return to Tucson and personally deliver cash to him.

Investigators of the Pennsylvania Attorney General' s office identified in excess of $300,000 in Western Union a nd

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1. The district court had subject matter jurisdicti on based on 18 U.S.C. S 3231. This court has appellate jurisdiction under 28 U.S.C. S 1291 and
18 U.S.C. S 3742.

2American Express wire transfers from locations in S tate

College and Southeastern Pennsylvania to the defend ant when he resided in Tucson, and to other individuals located in Jamaica. The defendant admitted to a probation o fficer that a typical marijuana delivery consisted of a qu antity in the twenty to thirty pound range. He also stated th at he received approximately $150,000 via Western Union a nd American Express.

At the sentencing hearing, government witness Agent Kevin M. Barr verified the allegations contained in the PSR. In light of Barr's testimony, the district court fo und that the defendant was both an organizer and a leader of an extensive conspiracy, consisting of in excess offiv e participants. The court also sua sponte voiced the possibility of an upward departure from the defenda nt's criminal history category based mainly on the defen dant's prior foreign conviction.2 More particularly, on De cember 3, 1990, the defendant was arrested by the Federal Jud icial Police in Sonora, Mexico, while carrying 3.70 kilog rams of marijuana. He told authorities that he was transpor ting the marijuana to the United States. He was convicted an d
sentenced in the Seventh District Court in Mexico f or possession of marijuana and subsequently he was transferred to the United States through a prisoner exchange. Eventually United States Parole Commissio n paroled him on February 3, 1992 to commence a five- year term of supervised release.

Defense counsel objected to an upward departure, contending that the district court lacked authority to depart because the foreign conviction was purportedly a si mple possession of marijuana. Under the guidelines, such a conviction meant that the defendant could not have
received more than six months if he had been convic ted in the United States. Hence, as a matter of law, defen se counsel asserted that the court lacked authority to depart upward.

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2. In order to be consistent with the plea agreemen t, the Government took no position when the court inquired as to whet her it believed an upward departure was warranted.

3Overruling defense counsel's objection, the distric t court

carefully considered its authority to depart under Guideline Section 4A1.3, noting with particularity that the accompanying commentary merely provided examples in determining the appropriateness of an upward depart ure. Pursuant to the Section 4A1.3, the court concluded that the defendant's Criminal History Category of I as r eflected in the PSR significantly under-represented the seri ousness of his criminal history. The court adjusted upward the defendant's category, placing the defendant in Cate gory II which resulted in a guideline range of 97 to 121 mo nths. The court then imposed a sentence of 120 months imprisonment, stating that the offense committed wa s serious in nature and that the defendant's continui ng criminal conduct while under community supervision indicated a need for deterrence and protection for the community.

II.

The defendant's sole argument on appeal is that the district court erred when it departed upward. To th e extent the defendant questions the district court's decisi on to depart, we review for abuse of discretion. Koon v. United States, 518 U.S. 81, 98 (1996). On the other hand, to the extent he questions the court's authority to depart , we review de novo. Id. at 100.

A.

The defendant argues that the district court erred when it adjusted upward his criminal category because no t only did it lack reliable information concerning the for eign conviction, but the information that it possessed p ertained solely to a single offense that was not serious in nature. He also contends that his case is unlike the example p rovided in the policy statement accompanying Guideline Sect ion 4A1.3, involving a defendant with a criminal histor y that is extensive and serious in nature. On the other hand, his foreign conviction was a single offense, was not se rious in nature, and would be only a misdemeanor if it had b een committed in Pennsylvania. He further asserts that his

4foreign conviction was not reliable because no cert ified copy

of that conviction was introduced at his sentencing hearing. He concludes that a more suitable adjustment would have been a sentence in the upper range of the applicabl e guideline range under Category I rather than a depa rture.

In response, the Government contends that Guideline Section 4A1.3 permitted the district court to depar t upward. It asserts that Section 4A1.3 contains no requirement that there be more than one foreign con viction. It avers that the information considered by the dis trict
court indicated that the defendant was convicted in Mexico for possession of 3.79 kilograms of marijuana, whic h he himself admitted he was transporting to the United States. Accordingly, it submits that because the offense in volved a significant quantity of marijuana, coupled with an intent to import the substance into the United States and dis tribute it there, the district court was vested with the di scretion to depart upward.

Lastly, as to the reliability of the defendant's fo reign conviction, the Government observes that the convic tion was honored through a prisoner exchange program and the
defendant was transferred to the United States and released by the United States Parole Commission to commence a five year term of supervised release. Th e United States District Court for the District of Ar izona supervising defendant's release recognized the vali dity of the underlying conviction when it found on May 3, 1 993
that the defendant violated the condition of his su pervised release and imposed a 21 month term of imprisonment

. Therefore, the Government submits that the district court here justifiably relied on the foreign conviction i n determining the appropriateness of an upward depart ure.

B.

Guideline Section 4A1.3 empowers the district court to depart upward "[i]f reliable information indicates that the criminal history category does not adequately refle ct the seriousness of the defendant's past criminal conduc t or the
likelihood that the defendant will commit other cri mes ... ."
U.S.S.G. S 4A1.3. Section 4A1.3 also indicates that reliable

5information can include " ... prior sentences' not used in

computing the criminal history category (e.g., sent ences for foreign and tribal offenses) ... ." U.S.S.G.S 4A1.3 (a).

To establish reliability of the foreign conviction, certified copies of the conviction albeit desirable are not r equired for the sentencing court's determination as to whether an upward adjustment is warranted. See United States v

. Soliman, 889 F.2d 441, 444-45 (2d Cir. 1989). Furthermore, the sentencing court may, even in ligh t of a constitutionally infirm foreign conviction, conside r any reliable information concerning the conduct that le d to the conviction. See United States v. Delmarle, 99 F.3d 80, 85 (2nd Cir. 1996).

C.

In the case at bar, we conclude that the district c ourt, in exercising the discretion vested under Section 4A1. 3, committed no error in relying on the defendant's fo reign conviction, as well as the severity of the underlyi ng offense,3 and the defendant's past criminal history in determ ining that an upward departure was warranted. Not only wa s the court apprised of the possible constitutional infir mities surrounding the foreign conviction,4 but the court also identified that evidence which it believed justifie d upward departure. See United States v. Luscier, 983 F.2d 1 507, 1511 (9th Cir. 1993). Specifically, the court remar ked that the defendant would have occupied the higher catego ry had

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3. The district court's conclusion that the foreign offense conduct was sufficiently serious to trigger its discretionary a uthority to depart

under U.S.S.G. S 4A1.3 is supported by the fact that, had the defendant been convicted of possessing 3.70 kilograms of marijuana in the United States, he would have been subject to a 10-16 month sentence, assuming a criminal history category of I. See U.S. S.G. S 2D1.1 (possession of between 2.5 and 5 kg. of marijuana r esults in base offense level of 12).

4. See Soliman, 889 F.2d at 445 (citing Guidelines Manual Section 1B1.4 at 1.21)("Once appraised of the possible constituti onal infirmities surrounding a foreign conviction, the sentencing ju dge, in an exercise of informed discretion, may rely on the conviction in deciding whether to depart from a Guideline range ... .")

6the foreign conviction been counted in computing hi s

criminal history category before departure. The cou rt explained that "if [the foreign] conviction... was a federal conviction, he'd have another five points added on. " Additionally, the court acknowledged that it was no t certain whether the Mexican authorities adhered to due proc ess in sentencing the defendant for possession of marijuan a. Nevertheless, the court stated that it was confiden t that the conviction was fair. These reasons are not only wel l within the court's sound discretion, but also permissible considerations in fact and law. See Delmarle, 99 F. 3d at 85; Luscier, 983 F.2d at 1511; Soliman, 889 F.2d at 445 . We therefore perceive no error in the court's decision that it could depart upward and see no abuse of discretion in its decision to so depart.

III.

For the foregoing reasons, the judgment sentence of the
district court will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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