1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-30-1999

USA v. Fordham

Precedential or Non-Precedential:

Docket 99-3132

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Recommended Citation

"USA v. Fordham" (1999). 1999 Decisions. Paper 220.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/220
Filed 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 Appellant 
OPINION OF THE COURT 

ROSENN, Circuit Judge: 

Appellant, Christopher Phillip Fordham, pleaded guilty to 

conspiracy to commit money laundering in violation of 18 

U.S.C. S 1956(h). The Presentence Investigation Report 

("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 District of 

Pennsylvania, the Honorable James F. McClure, Jr. 

presiding, found that a Criminal History Category of I 

significantly under-represented the seriousness of the 

defendant's prior record. Consequently, the court departed 

upward to a Criminal History Category of II, which 

calculated the increased guideline range at 97 to 121 

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 defendant 

procured large amounts of marijuana in Arizona and 

Mexico, which he had others transport and sell in New York 

and Pennsylvania. The defendant also used Federal Express 

to transport marijuana to individuals located in State 

College, Pennsylvania. In addition, at the defendant's 

direction, several individuals flew to New York and

Pennsylvania carrying marijuana. Following the deliveries, 

the defendant received either wire transferred funds in 

Tucson, Arizona or, if not by wire transfer, those who 

transported the marijuana to New York and Pennsylvania 

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 and 

_________________________________________________________________ 

1. The district court had subject matter jurisdiction 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. 

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American Express wire transfers from locations in State 

College and Southeastern Pennsylvania to the defendant 

when he resided in Tucson, and to other individuals located 

in Jamaica. The defendant admitted to a probation officer 

that a typical marijuana delivery consisted of a quantity in 

the twenty to thirty pound range. He also stated that he 

received approximately $150,000 via Western Union and 

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 found that the 

defendant was both an organizer and a leader of an 

extensive conspiracy, consisting of in excess offive 

participants. The court also sua sponte voiced the 

possibility of an upward departure from the defendant's 

criminal history category based mainly on the defendant's 

prior foreign conviction.2 More particularly, on December 3, 

1990, the defendant was arrested by the Federal Judicial 

Police in Sonora, Mexico, while carrying 3.70 kilograms of 

marijuana. He told authorities that he was transporting the 

marijuana to the United States. He was convicted and 

sentenced in the Seventh District Court in Mexico for 

possession of marijuana and subsequently he was 

transferred to the United States through a prisoner

exchange. Eventually United States Parole Commission 

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 simple 

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 convicted in 

the United States. Hence, as a matter of law, defense 

counsel asserted that the court lacked authority to depart 

upward. 

_________________________________________________________________ 

2. In order to be consistent with the plea agreement, the Government 

took no position when the court inquired as to whether it believed an 

upward departure was warranted. 

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Overruling defense counsel's objection, the district 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 departure. 

Pursuant to the Section 4A1.3, the court concluded that 

the defendant's Criminal History Category of I as reflected 

in the PSR significantly under-represented the seriousness 

of his criminal history. The court adjusted upward the 

defendant's category, placing the defendant in Category II 

which resulted in a guideline range of 97 to 121 months. 

The court then imposed a sentence of 120 months 

imprisonment, stating that the offense committed was 

serious in nature and that the defendant's continuing 

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 the extent 

the defendant questions the district court's decision 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 not only 

did it lack reliable information concerning the foreign 

conviction, but the information that it possessed pertained 

solely to a single offense that was not serious in nature. He 

also contends that his case is unlike the example provided 

in the policy statement accompanying Guideline Section 

4A1.3, involving a defendant with a criminal history that is 

extensive and serious in nature. On the other hand, his 

foreign conviction was a single offense, was not serious in 

nature, and would be only a misdemeanor if it had been 

committed in Pennsylvania. He further asserts that his 

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foreign conviction was not reliable because no certified 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 applicable 

guideline range under Category I rather than a departure. 

In response, the Government contends that Guideline

Section 4A1.3 permitted the district court to depart 

upward. It asserts that Section 4A1.3 contains no 

requirement that there be more than one foreign conviction. 

It avers that the information considered by the district 

court indicated that the defendant was convicted in Mexico 

for possession of 3.79 kilograms of marijuana, which he 

himself admitted he was transporting to the United States. 

Accordingly, it submits that because the offense involved a 

significant quantity of marijuana, coupled with an intent to 

import the substance into the United States and distribute 

it there, the district court was vested with the discretion to 

depart upward. 

Lastly, as to the reliability of the defendant's foreign 

conviction, the Government observes that the conviction 

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. The 

United States District Court for the District of Arizona 

supervising defendant's release recognized the validity of 

the underlying conviction when it found on May 3, 1993 

that the defendant violated the condition of his supervised 

release and imposed a 21 month term of imprisonment. 

Therefore, the Government submits that the district court 

here justifiably relied on the foreign conviction in 

determining the appropriateness of an upward departure. 

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 reflect the 

seriousness of the defendant's past criminal conduct or the 

likelihood that the defendant will commit other crimes ... ." 

U.S.S.G. S 4A1.3. Section 4A1.3 also indicates that reliable 

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

computing the criminal history category (e.g., sentences 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 required 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 light of a 

constitutionally infirm foreign conviction, consider any 

reliable information concerning the conduct that led 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 court, in 

exercising the discretion vested under Section 4A1.3, 

committed no error in relying on the defendant's foreign 

conviction, as well as the severity of the underlying offense,3 

and the defendant's past criminal history in determining 

that an upward departure was warranted. Not only was the 

court apprised of the possible constitutional infirmities 

surrounding the foreign conviction,4 but the court also 

identified that evidence which it believed justified upward 

departure. See United States v. Luscier, 983 F.2d 1507, 

1511 (9th Cir. 1993). Specifically, the court remarked that 

the defendant would have occupied the higher category had 

_________________________________________________________________ 

3. The district court's conclusion that the foreign offense conduct was 

sufficiently serious to trigger its discretionary authority 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 results 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 constitutional infirmities 

surrounding a foreign conviction, the sentencing judge, in an exercise of 

informed discretion, may rely on the conviction in deciding whether to 

depart from a Guideline range ... .") 

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the foreign conviction been counted in computing his 

criminal history category before departure. The court 

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 not certain 

whether the Mexican authorities adhered to due process in 

sentencing the defendant for possession of marijuana. 

Nevertheless, the court stated that it was confident that the 

conviction was fair. These reasons are not only well 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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