FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 18, 2007

THOMAS K. KAHN

CLERK

 Honorable Edward Korman, United States District Judge for the Eastern District of *

New York, sitting by designation.

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-15951

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D. C. Docket No. 06-00065-CR-J-DHB-JEG

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

NELSON VALDES,

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 18, 2007)

Before BIRCH, BARKETT, Circuit Judges, and KORMAN, District Judge. *

PER CURIAM:
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Nelson Valdes pled guilty and was convicted of bank fraud, in violation of

18 U.S.C. §§ 1344 and 2, and was sentenced to 108 months of imprisonment,

which considerably exceeded the Guidelines range of 41 to 51 months as

calculated by the Presentence Investigation Report, as well as the Guidelines range

of 57 to 71 months urged by the government on the basis of a two-level criminal

history category upward departure under U.S.S.G. § 4A1.3. 

Valdes argues that if the sentence is construed as a departure under U.S.S.G.

§ 4A1.3, it must be reversed because the district court failed to follow the

procedural requirements for such a departure under U.S.S.G. § 4A1.3. Moreover,

he notes that even if the departure had been procedurally correct, the high-end of

the Guidelines sentence, even with the upward departure, was only 71 months. 

Alternatively, Valdes argues that an 108-month sentence is substantively

unreasonable under the circumstances presented. Specifically, Valdes argues that

the district court in this case was biased because, in rendering its verdict, it relied

on the fact that the fraud involved consisted of counterfeiting checks from the

Clerk of the Middle District of Florida.

We vacate and remand because this record is insufficient to permit the

affirmance of the sentence. If the district court intended to apply an upward

departure under U.S.S.G § 4A1.3, Valdes is correct that the requisite procedures
 If a district court finds that a defendant’s criminal history is not adequately represented

1

by the Guidelines range, and decides to engage in a departure analysis under U.S.S.G. § 4A1.3,

the judge must first explicitly consider the next criminal history category and make a

determination as to whether that new range is appropriate. United States v. Johnson, 934 F.2d

1237, 1239-40 (11th Cir. 1991). In purporting to grant the government’s U.S.S.G. § 4A1.3 to

depart upwardly to Category VI, the district court, as in United States v. Williams, wholly failed

to specifically consider or even mention the next criminal history level, Category V. Indeed, the

district court even neglected to consider the Category VI range itself to determine whether that

category more accurately represented Valdes’ criminal history. “As a result of this procedural

fault, the upward departure was in error and requires remand.” Williams, 989 F.2d 1171, 1142

(11th Cir. 1993).

 Many of the bases for the district court’s sentence were already accounted for in 2

calculating the Guidelines range and nothing extraordinary about the circumstances of this case

justified this extreme variance. See United States v. McVay, 447 F.3d 1348, 1357 (11th Cir.

2006) (finding that a district court’s imposition of a sentence that falls far outside the Guidelines

range must be supported by extraordinary circumstances). Moreover, the fact that it was the

District Court’s check that was counterfeited could not support a variance. We see no reason

why fraud involving the district court is any more culpable than fraud involving any other

individual or institution. Indeed, the judges of the Middle District of Florida were all recused in

order to avoid any bias.

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were not followed. If the court intended to rely solely on § 3553(a) to vary

1

upward from the Guidelines, the reasons discussed were inadequate to support an

extraordinary variance to a sentence of 108 months, which was more than double

the high-end of the calculated Guidelines range, and significantly, well above the

Government’s recommended Guidelines range of 57-71 months.2

VACATED AND REMANDED.