## 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-Ap pellant. David E. O’Meilia, United States Attorney, and Neal B. Kirkpatrick, Assistant United States Attorney, Northern District of Oklaho ma, Tulsa, Oklahoma, for Plaintiff-Appellee.

_________________________ Before SEYMOURand 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 notmaterially 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 ora l argument. Willie Eugene Walker pleaded guilty to possession o f 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) document ed 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 e stablished the range of punishment at thirty to thirty-seven months impriso nment. Citing the similarity of Defendant’s present offense with his past crimes an d a high likelihood of recidivism, the PIR recommended an upward departure from the Guidelines. Defendant objected in writing to the PIR’s recommen dation. At sentencing, the Government requested punishment at the high end of the sentencing range (i.e. thirty-seven months imprison ment) but did not request an upward departure from the Guidelines. Defendant re iterated his objection to any upward departure from the Guidelines, but he conced ed that a period of-3-

imprisonment at the high end of the range might be appropriate. The district judge noted that Defendant’s thirty-four total crim inal history points easily exceeded the thirteen points required for classific ation in criminal history category VI. The district judge indicated that Def endant still qualified for criminal history category VI even if seven of Defen dant’s prior convictions were ignored. As a result, the district judge determine d that criminal history category VI inaccurately reflected Defendant’s criminal hist ory warranting an upward departure from the Guidelines. The district court concluded: [T]he Court has come to the conclusion that it woul d be appropriate to depart one level for each of the convictions, pr ior convictions, that have not been taken into consideration, which would mean that the offense level would therefore increase from 12 to 1 9, 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 courterred in imposing an upward departure from the Guidelines and, if an upward dep arture were warranted, whether the district court’s degree of departure wa s reasonable. We review departure from the Guidelines “under a unitary abus e-of-discretion standard which ‘includes review to determine that the discre tion was not guided by erroneous legal conclusions.’” United States v. Hanson , 264 F.3d 988, 994 (10th-4-

Cir. 2001) (quotations and citations omitted). If the departure rests on factual considerations, the district court’s decision is “e ntitled to substantial deference.” United States v. Fortier , 242 F.3d 1224, 1232 (10th Cir. 2001). We consider four factors in reviewing the proprietyof 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 fro m the applicable Guideline heartland thus warranting a departure; (3 ) whether the record sufficiently supports the factual basis unde rlying 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 dist rict court used permissible departure factors (first factor) and that the recor d supports the factual basis underlying the departure factors the district courtemployed (third factor). However, he challenges the district court’s finding that his prior criminal history removes him from the Guidelines’ criminal history c ategory VI’s “heartland” (second factor). Defendant also contests the reaso nableness of the district court’s departure (fourth factor). We first consider Defendant’s “heartland” challenge . Defendant argues that the number of prior convictions, standing alon e, is insufficient to remove his case from the Guidelines’ “heartland” for criminal category VI. He maintains that-5-

all of his crimes are of a nonviolent nature (finan cial fraud such as forgery and false impersonation) and that many of his convictio ns resulted from the same course of conduct. The Government responds that th e Guidelines permit upward departure based on “independent crimes committed on different occasions.” Aple. Brief at 8. Furthermore, the Government insists th at the instant charges reflect only a portion of the “interstate crime spree” Defe ndant was involved in at the time of his arrest. Additionally, the Guidelines p ermit the district court to consider “whether the defendant was pending trial o r sentencing on another charge at the time of the instant offense” when con templating an upward departure. U.S.S.G. §4A1.3(d). The district court’s finding that Defendant’s exten sive 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 substan tial deference). The district court specifically adopted the PIR’s findings whichjustified an upward departure on at least three grounds–similarity of past crimes , high likelihood of recidivism, and Defendant’s criminal history category inadequat ely 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-6-

criminal history points than required to be placed in criminal history category VI.
See id. at 1104. Like Defendant, Akers also argued that a ll of his previous convictions were minor and nonviolent in nature. T he Akers court concluded, “Given the record and the district court’s special competence in assessing the uniqueness of a particular defendant’s criminal his tory, we conclude that the district court did not abuse its discretion in find ing 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 di scretion in deciding to upwardly depart, we must next review whether the de gree of the district court’s departure was reasonable. Articulation of the fact ual basis for upwardly departing “does not automatically suffice to explai n the degree of departure.” United States v. Whiteskunk , 162 F.3d 1244, 1253 (10th Cir. 1998). We have repeatedly required “district courts to explain the ir reasoning and to specify the facts or factors upon which they relied in selectin g the final sentencing offense level for departing upward.” United States v. Yate s , 22 F.3d 981, 990 (10th Cir. 1994) (citations omitted). Simply “stat[ing] the l egal and factual bas[is] for [an]-7-

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 deg ree of its upward departure insufficient. It is true that through express adoption of the PIR’s findings and in statements made directly to the Def endant 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 le vel for each of Defendant’s seven prior convictions in excess of those needed t o accumulate the criminal history points required for his placement in crimin al history category VI. However, the district court’s explanation does noth ing more than restate the justification for upward departure and “‘does not f ulfill 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 th is court can properly give deference to the district court’s deg ree of departure, the district court must provide this court with a reasoned expla nation justifying its sevenlevel (rather than a two, four, or six-level) upwar d departure. See id

. To qualify for placement in criminal history catego ry VI, a criminal must participate in serious repeat offenses. Yet, the G uidelines cap criminal history categories at level VI. Surely if the Guidelines e nvisioned increased punishment-8-

based on recidivism alone, higher criminal history categories would have been created. This cap on criminal history categories i s meant to restrain both departures and the degree of departures based on th e 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 V I 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 includ es convictions exceeding the thirteen points required for classification in crim inal history category VI. The Guidelines do not envision such a category. Altho ugh the district court possesses the discretion to upwardly depart from criminal his tory 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 a nalysis as to why [it is selecting] a particular degree of departure.” Bart sma , 198 F.3d at 1197. Such reasoning must leave us with “reasonable indicia th at the sentence [the district court pronounces] is proportional to the crime [Def endant] committed.” United-9-

States v. Kalady , 941 F.2d 1090, 1101 (10th Cir. 1991). The distri ct court may consider factors such as: “the seriousness of the o ffense, the need for just punishment, deterrence, protection of the public, c orrectional treatment, the sentencing pattern of the Guidelines, the policy st atements contained in the Guidelines, and the need to avoid unwanted sentenci ng 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 cons istent with this opinion.