F I L E D

United States Court of Appeals

Tenth Circuit

MAR 27 2002

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee,

v. No. 01-5115

WILLIE EUGENE WALKER a/k/a

ERNEST WARD,

Defendant - Appellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 00-CR-16-C)

Submitted on the briefs:

Stephen J. Knorr, Tulsa, Oklahoma, for Defendant-Appellant.

David E. O’Meilia, United States Attorney, and Neal B. Kirkpatrick, Assistant

United States Attorney, Northern District of Oklahoma, Tulsa, Oklahoma, for

Plaintiff-Appellee.

_________________________

Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit

Judge.

McKAY, Circuit Judge.

_________________________
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After examining the briefs and the 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)(2); 10th Cir. R. 34.1(G). 

The case is therefore ordered submitted without oral argument.

Willie Eugene Walker pleaded guilty to possession of a firearm and

ammunition after former conviction in violation of 18 U.S.C. § 922(g). In return,

the Government agreed to drop two charges of making, uttering, and possessing

counterfeit securities in violation of 18 U.S.C. § 513(a). 

The Presentence Investigation Report (PIR) documented Defendant’s

extensive criminal record including at least eleven separate periods of

incarceration. Based on Defendant’s total offense level of twelve and criminal

history category of VI, the Sentencing Guidelines established the range of

punishment at thirty to thirty-seven months imprisonment. Citing the similarity of

Defendant’s present offense with his past crimes and a high likelihood of

recidivism, the PIR recommended an upward departure from the Guidelines. 

Defendant objected in writing to the PIR’s recommendation. 

At sentencing, the Government requested punishment at the high end of the

sentencing range (i.e. thirty-seven months imprisonment) but did not request an

upward departure from the Guidelines. Defendant reiterated his objection to any

upward departure from the Guidelines, but he conceded that a period of
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imprisonment at the high end of the range might be appropriate. The district

judge noted that Defendant’s thirty-four total criminal history points easily

exceeded the thirteen points required for classification in criminal history

category VI. The district judge indicated that Defendant still qualified for

criminal history category VI even if seven of Defendant’s prior convictions were

ignored. As a result, the district judge determined that criminal history category

VI inaccurately reflected Defendant’s criminal history warranting an upward

departure from the Guidelines. The district court concluded:

[T]he Court has come to the conclusion that it would be appropriate

to depart one level for each of the convictions, prior convictions, that

have not been taken into consideration, which would mean that the

offense level would therefore increase from 12 to 19, which leaves a

range of no less than 63 to 78 months.

The district judge then sentenced Defendant to sixty-three months in prison. 

Defendant only appeals the district court’s upward departure from the

Guidelines. He does not challenge the validity of his plea agreement in any way. 

The issues before us are whether the district court erred in imposing an upward

departure from the Guidelines and, if an upward departure were warranted,

whether the district court’s degree of departure was reasonable. We review

departure from the Guidelines “under a unitary abuse-of-discretion standard

which ‘includes review to determine that the discretion was not guided by

erroneous legal conclusions.’” United States v. Hanson, 264 F.3d 988, 994 (10th
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Cir. 2001) (quotations and citations omitted). If the departure rests on factual

considerations, the district court’s decision is “entitled to substantial deference.” 

United States v. Fortier, 242 F.3d 1224, 1232 (10th Cir. 2001).

We consider four factors in reviewing the propriety of a district court’s

upward departure from the Guidelines. See United States v. Bartsma, 198 F.3d

1191 (10th Cir. 1999). The four factors are: 

(1) whether the factual circumstances supporting a departure are

permissible departure factors; (2) whether the departure factors relied

upon by the district court remove the defendant from the applicable

Guideline heartland thus warranting a departure; (3) whether the

record sufficiently supports the factual basis underlying the

departure; and (4) whether the degree of departure is reasonable.

Id. at 1195 (quoting United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.

1997). On appeal, Defendant concedes that the district court used permissible

departure factors (first factor) and that the record supports the factual basis

underlying the departure factors the district court employed (third factor). 

However, he challenges the district court’s finding that his prior criminal history

removes him from the Guidelines’ criminal history category VI’s “heartland”

(second factor). Defendant also contests the reasonableness of the district court’s

departure (fourth factor). 

We first consider Defendant’s “heartland” challenge. Defendant argues

that the number of prior convictions, standing alone, is insufficient to remove his

case from the Guidelines’ “heartland” for criminal category VI. He maintains that
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all of his crimes are of a nonviolent nature (financial fraud such as forgery and

false impersonation) and that many of his convictions resulted from the same

course of conduct. The Government responds that the Guidelines permit upward

departure based on “independent crimes committed on different occasions.” Aple.

Brief at 8. Furthermore, the Government insists that the instant charges reflect

only a portion of the “interstate crime spree” Defendant was involved in at the

time of his arrest. Additionally, the Guidelines permit the district court to

consider “whether the defendant was pending trial or sentencing on another

charge at the time of the instant offense” when contemplating an upward

departure. U.S.S.G. §4A1.3(d). 

The district court’s finding that Defendant’s extensive criminal history

removed him from the “heartland” of criminal history category VI is entitled to

substantial deference. See, e.g., Bartsma, 198 F.3d at 1195 (noting that factual

findings of the district court are afforded substantial deference). The district

court specifically adopted the PIR’s findings which justified an upward departure

on at least three grounds–similarity of past crimes, high likelihood of recidivism,

and Defendant’s criminal history category inadequately reflecting the seriousness

of his past conduct.

Our prior holding in United States v. Akers, 215 F.3d 1089 (10th Cir.

2000), is instructive. In Akers, the Defendant had accumulated fifteen more
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criminal history points than required to be placed in criminal history category VI. 

See id. at 1104. Like Defendant, Akers also argued that all of his previous

convictions were minor and nonviolent in nature. The Akers court concluded,

“Given the record and the district court’s special competence in assessing the

uniqueness of a particular defendant’s criminal history, we conclude that the

district court did not abuse its discretion in finding Akers’s criminal history

sufficiently exceptional to warrant an upward departure.” Id. at 1105. We find

this case indistinguishable from Akers as to the decision to upwardly depart and

conclude that the district court did not abuse its discretion in finding Defendant’s

criminal history sufficiently exceptional to remove it from the “heartland” of

criminal history category VI. 

Because the district court acted well within its discretion in deciding to

upwardly depart, we must next review whether the degree of the district court’s

departure was reasonable. Articulation of the factual basis for upwardly

departing “does not automatically suffice to explain the degree of departure.” 

United States v. Whiteskunk, 162 F.3d 1244, 1253 (10th Cir. 1998). We have

repeatedly required “district courts to explain their reasoning and to specify the

facts or factors upon which they relied in selecting the final sentencing offense

level for departing upward.” United States v. Yates, 22 F.3d 981, 990 (10th Cir.

1994) (citations omitted). Simply “stat[ing] the legal and factual bas[is] for [an]
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upward departure[] without offering any analysis supporting its increase in the

level of departure” is insufficient. Id. 

We find the district court’s explanation of the degree of its upward

departure insufficient. It is true that through express adoption of the PIR’s

findings and in statements made directly to the Defendant the district court

articulated the necessary legal and factual reasons justifying its decision to

upwardly depart. The symmetry of the district court’s decision is also obvious;

the district court decided to depart one offense level for each of Defendant’s

seven prior convictions in excess of those needed to accumulate the criminal

history points required for his placement in criminal history category VI. 

However, the district court’s explanation does nothing more than restate the

justification for upward departure and “‘does not fulfill the separate requirement

of stating the reasons for imposing the particular sentence.’” Id. (quoting United

States v. Flinn, 987 F.2d 1497, 1502 (10th Cir. 1993)). Before this court can

properly give deference to the district court’s degree of departure, the district

court must provide this court with a reasoned explanation justifying its sevenlevel (rather than a two, four, or six-level) upward departure. See id. 

To qualify for placement in criminal history category VI, a criminal must 

participate in serious repeat offenses. Yet, the Guidelines cap criminal history

categories at level VI. Surely if the Guidelines envisioned increased punishment
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based on recidivism alone, higher criminal history categories would have been

created. This cap on criminal history categories is meant to restrain both

departures and the degree of departures based on the defendant’s criminal history

alone. A decision to depart from criminal history category VI requires a more

stringent analysis than simply counting the number of convictions in excess of

those required to reach criminal history category VI and increasing the offense

level proportionately to the excess convictions.

To hold otherwise could create a de facto criminal history category higher

than category VI for criminals whose history includes convictions exceeding the

thirteen points required for classification in criminal history category VI. The

Guidelines do not envision such a category. Although the district court possesses

the discretion to upwardly depart from criminal history category VI in exceptional

cases, nothing in the Guidelines supports a degree of upward departure based

solely on the number of prior convictions in excess of the thirteen points required

for classification in criminal history category VI. 

We remand to the district court for resentencing. Upon remand the district

court must “precisely lay out [its] reasoning and analysis as to why [it is

selecting] a particular degree of departure.” Bartsma, 198 F.3d at 1197. Such

reasoning must leave us with “reasonable indicia that the sentence [the district

court pronounces] is proportional to the crime [Defendant] committed.” United
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States v. Kalady, 941 F.2d 1090, 1101 (10th Cir. 1991). The district court may

consider factors such as: “the seriousness of the offense, the need for just

punishment, deterrence, protection of the public, correctional treatment, the

sentencing pattern of the Guidelines, the policy statements contained in the

Guidelines, and the need to avoid unwanted sentencing disparities.” Collins, 122

F.3d at 1308-9 (quoting United States v. White, 893 F.2d 276, 278 (10th Cir.

1990)).

We REVERSE and REMAND to the district court with instructions to

vacate the sentence and resentence in a manner consistent with this opinion.