1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0175P (6th C ir.) File Name: 04a01 75p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.
C HALM ERS B ROWN , Defenda nt-Appel

lant. X - - - -> , - - N No. 02-6407

Appeal from the United States District Court for the We stern Dis trict of T ennesse e at Memphis. No. 02-20059—Samuel H. Mays, Jr., District Judge.

Argued: February

5, 2004 Decided and Filed: June 10, 2004
Befor e: NEL SON, GI

LMAN , and ROGE

RS, Circuit Judges.

_________________ COUNSEL
ARGUED: Stephen B. Shankman, OFFI CE OF THE FEDERAL

PUBL IC DEFENDER F OR THE WESTE RN DIST RI CT OF TENNESSEE, Memphis, Tennessee, for Appellan t. David N. Pritchard, ASSISTANT UNI TE D STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIE F: Stephen B. Shankman, April R. Goode, 2 United Sta tes v. Bro wn No. 02-6407

OFFI CE OF THE FEDERAL PUBL IC DEFENDER FOR THE WESTERN DISTRI CT OF TEN NESSEE, Me

mphis, Tennessee, for Appellant. John T. Tibbetts, ASSISTANT UNITED STATES ATT ORNEY, Me mp his, Tennessee, for Appellee.

_________________

OPINION

_________________ DAVI D A. NELSON, Circuit Judge. Under the fe de ra l sentencinggui d elines, a criminal defendant may be given a prisonsentence exceed ing t he range prescribed in the guidelines manual’ s sen tencing table if the criminal history category to which the defen dant h as been assigned does not ad equatel y

reflect his past conduct or the likelihood that he wil l comm it additional crimes. See the Sentencing Commission’s Policy Statement at U.S.S.G. § 4A1.3. The appropr

iate extent of an upward departurecan often be measured by refe rence to the sentence rang e for a pe rson in the next criminal history

categ ory above the defenda nt’s. But where a defendant’s criminal record has earned him so many criminal history points that he is already in the highest of the six criminal history categories created by the guidelines, the Policy Statement dire cts the sentencing court to “structure” the departure by

moving to

success ively

higher offense levels (the defendant’s offense level being the other variable in the sentenc ing tabl e) until the court c omes to “a guidel ine ran ge appropriate to the case.” Id. The defendant in the case at bar, who had at least 13 prior felony con victi ons, plea

ded gui lty t

o a char ge of k nowingl y possessing a certa

inNorber to Arizmendi shotgun in violation of 18 U.S.C. § 922(g), the statute that criminalizes possession of a firearm by

a convi cted felon. The defendant’s leng thy criminal record

made him a

pr ime candidate for an upward departure from the sent ence range (168- 210 months) specifiedNo. 02-6407 United Sta tes v. Bro wn 3

inthe table . Emplo y ing a methodology endorsed in United States v. Williams , No. 99-6030, 2000 WL 1872059 (6th Cir. Dec. 15, 2000), cert. denied, 532 U.S. 988 (200 1 ) (unpublished), the d istri ct court sentenc ed the de fendant to imprisonme

nt for a te rm of 360 months.
We cannot tell whether

the sentenc e rang e (360 mon ths to life) pro duced b y the Williams methodology wa s one which the district c ourt, in

the exerc ise of itsindepend ent judg ment, considered

appropr iate to the part

icular c ircumsta

nces of t his particular case. We shall therefore vacate the challenged judgm ent an d reman d the c ase for resent encin g. I
At 10:15 on the morning of November 25, 2001, according to a subsequ

ently prepar ed prese ntence i nvestig ation re

port, three robbers

broke int o Tara T hompson’s

houseonLaclede Avenue in Memphis, Tennessee. I nside the housewere Ms. Thompson, her boyfr

iend Tallen

Williams, and three children ranging in age f

rom three to 14.
One o f the i ntruders — descr ibed by Ms. Thompso

n as a bearded man about 6 feet

tall, weighing about 160 pounds and wearing a homemade ski mask — was said to have been armed with a shotgun

of the “pistol pump” variety. A se cond intrud er — a “short, chubby”

man, not wearing a mask — had a small handgun. (Chalmers Brown, the def endant in the caseat bar, s tands 5' 6" in hei ght and weighs 187 pounds , according to the presentence rep ort; he would thus seem to bear a closer re s emblance to the short, chubby man with the handgun than t o the tall, thin man with the shotgun.) The third intruder, wh o wore a black ski mask, wa s appare ntly unarmed.
Ms. Thompson called 911 while the intruders were kicking in her fr ont door. Once insid e, according to

a stateme

nt Ms. Thompson was to give the police, the shor t, chub by man pointed his handgun

at her and her children and asked whe re 4 United Sta tes v. Bro wn No. 02-6407

her money was. The

tall, thin man likewise d eman ded mo ne y. In the

course o f the ens

uing tumu

lt, Ms. Thompson’s statement say s, the olde st child wa s repea tedly hit in the head with the shotg un and the

weapon was fired

once. The blast hit Ms. Thompson’s dog inthe foot, and some o f the pel lets struck Ms. Thompson in the face and arm.
As the polic e were

arriving in respon se to the 911 c all, the robbers escape d with a Playstation and some money Mr. Williams had in his pants. Two days later a c rime stoppers tip implicated Chalmers Brow n (the defendant herein) and two other suspects. Shown a photo-array, accordi ng to t he p resentence report, Ms. Thompson “positively identifi e d Chalmers Brown a s the person who shot her, as saulte d h er family and shot her dog.” (T he presentence report does not comment on the anomalous circumstance tha t Ms

. Thompson’s statem ent t o the police described the masked manwith the shot gu n as being much taller and thinner than Mr. Br own; on e wonders if in fact Ms. Thompson did not simply identify the bare-faced Mr. Br

ownas a member of the trio, without claiming that he person ally wiel ded the shotgun.)
Onthe day after Ms. Thompson identified Mr. Brown’s picture, a police officer spotted Brown g et ting into his Cadillac automobile. Mr. Brown was detained, and a search of the Cadillac turned

up a black ski mask

behind the driver’s seat and a loaded shotgun inthe trunk. Mr. Brown admitted ownership of the shotgun. Charged with both state and federal crimes, Mr. Brown found himself moved along the federal track firs t. A superseding indictment handed up by a fede

ral grand jury in April of 2002 charge d him with th ree cou nts of violating the felon-in-possession

statute, 1 8 U.S.C. § 922(g). Mr. Brown pleaded guilty to the first count of the superseding indictment pursuant to a Rule 11 plea

agree ment. (I t was the f

irst coun t, as we have indicated, that charged him with illegal possession of a Norberto Arizmendi sho tgun.) The othe r two cou

nts were dismissed by the government.No. 02-6407 United Sta tes v. Bro wn 5

The probation officer

who prepared Mr. Brown’s presentence investig ation re port originally

assumed t

hat t h e Norber to Arizmendi shotgun was the same we apon with whichMs. Thompson and her son and dog had been assau lted. Based on this assumption, and using the 2 00 1 edition of the gu ideli nes manual, the probation officer assigned Mr. Brown an

offense level of 31. In a subsequent addendum

to the pres en tence report, however, the office r noted that whereas Ms. Thompson

had described the shotgun used in the robbery a s a “pistol pump” weapon, the Norber to Arizmendi referred to in Count One of the indictment did not have a pistol pump feature. The addendum recommended that Brown’ s t otal offense level be set at 30, rather than 31, unless the United States could pro ve tha t the weapon recovered at the time of the arrest was the same one used during the home invasion. The government could not prove that the weapons wer e one and the same, a

nd the district court therefore accepte d the revised computat

ion of Br own’s of fense le vel. Under

the manual’s sentenc ing tabl e — anabbreviated version of which is included

as an app endix to this opinion — a defendant who has earned a

place in Criminal History Category VI and who has an offe

nse leve l of 30 is a ssigned a guide li ne se ntence range of 168-21 0 months. Prior to issuance

of the ad dendum tothe pres entence report, the government had moved for an upward departure from the range (188-235 months) specified in the original report. The basis for the motion was that while a minimum of only 13 criminal history

points su ff

ices to pla

ce a def endant in Criminal History Categ ory VI , Mr. Brown had amassed more thanfour times that

numbe r of points — 53, to be precise. Category VI thus failed adeq uately to ref lect Mr. Brown’s past criminal behavior, the government arg ued. The district court agreed. The cour t als o accepted the meth odol ogy

proposed by t he gove rnment fo r deter mi ning th e extent of the upw

ard depa rture. T hat m etho dology, a s we 6 United Sta tes v. Bro wn No. 02-6407

have said, was on e appr oved by the Sixth Circuit’s unpublished

decision in the Williams case, a vailable electronically

at 2000 WL 1872059. The sentencing court in Williams used a criminal history scale of its owncreation, with phantom categories designed to trigg er incr

emental i ncreas es in th e def

endant’ s offens e level. See Willia ms , 2000 WL 1872059, at **2. The Williams methodology provide s for no incre ase in the

offense level of a defendant

whose cr iminal history

score is 15 or less

. A criminal history score of 1 6 to 18 points produces a onelevel increase in the offense level. A criminal history score

of 19 to 21 leads to a two-level increase, and higher brackets of criminal history

points lead to further

increa ses in the

offense level. A criminal history score of 48 o r more yields an increa se of 10 in

the offe nse leve l. Accepting

th e Williams methodology a s “persuasive and logical,” the court below treated Mr. Brow n as having an offense level of 40 rather than 30. As can be seen fr om a glance at the

sente ncing ta ble se t for th in t he ap pend ix, infra , the range prescr ibed for a defendant in Criminal History Category VI w ho has an offense level of 40 is imprisonment for a term in the range of 360 months to life. The government

sought to have the 39-ye ar-old Mr. Brown sentenced to life imprisonment. The district court, however, opted to impose a

sentenc e — 30 y

ears — a t the botto m of the guideline ran ge det ermined under Williams . Mr. Brown has perfected a timely

appeal from this 30-year sentence.
II
Ingeneral, a departure

is permiss ible if

the sentencing court f inds “that there exists an aggravating or mitigating circumstance of a k ind, orto a degree, not adequately taken into consideration” by

the guidelines. 18 U.S.C. § 3553(b). Thus U.S.S.G. § 4A1.3 sta ted (bef ore adoption of a c

hange in wording not re levant here) that “[i]f reliable informationNo. 02-6407 United Sta tes v. Bro wn 7

ind icates that the c

riminal hi story

categ ory

does n o t adequa tely reflect the seriousness of the d efenda nt’s past criminal conduct or the lik elihood that the d

efenda nt will commit o ther crime s, th e court may consi der im posi ng a se ntence departing from the otherwise applicable g uidel in e range.”
Mr. Brown does not deny that an upward de p arture was warranted in light o f his rema

rkable c rimi na l history. He contends , rather , that it wa s inconsis tent with U.S.S.G. § 4A1.3 for

the dist ric t court to determine the extent of the departure by employ

ing jerry-built criminal history categories not tailored to his individual case.
Alth ough § 4A1.3 is d

esigna ted a poli cy

state ment , rather thana guideline, it is binding on the district courts. See Stinso n v. Unite d States , 508 U.S. 3 6, 42 (199 3). Fail ure to follow § 4A1. 3 con stitutes an incorrect application of the sentencingguidelines, see id. , and is thu s an abus e of discretion. See United States v. Valentine , 10 0 F.3d1209, 1210 (6th Cir. 1996). The 2001 edition of the Sen tenc ing Guidelines Manual c ontained a passage (subse quently the subje ct of min o r chang es in word

ing) tha t read a s follows: “Where the court determines that the extent and nature of the defendant’s criminal history , taken together, are sufficient to warrant an

upward departurefrom Criminal History Cate gory

VI, the court should structure the departure by moving incre mentally down the sentenc ing tableto the

next higher offense level in Criminal History Category VI un til i t finds a g

uideline range appropr iate to the case.” (The reader

who does n

ot have a clear mental image of the configuration

of the matrix to which the for e going p assage alludes may wish to examine t he se ntencing

table at t

his juncture. See Appendi x, infra .) “[W]hen the court cannot 8 United Sta tes v. Bro wn No. 02-6407

1 Carr ’s stateme nts as to ho w a sen tencing cour t is to effect a multilevel increase in adefe ndant’ s off ense l evel maybe regarded as dicta, given that we were not revi ewing s uch an increase in t hat case. The departure issue i n Carr was whether t he distr ict court had er red by hypothesizing a crimina l hi story category

great er tha n VI rather than increa sing the def

endant’ s off

ense l evel. See Carr , 5 F. 3d at 994. move horizontally across the g uideline grid because there ar e no criminal

history categ ories g

reater than VI ,” as we

put it in United States v. Thomas , 24 F.3d 829, 834 (6th Cir.), cert

. de nied , 513 U.S. 976 (1994), “[the court] should m ov e vertically down

the offe nse level axis unti l it l ocates a range which it deems appropriate to the facts of the case .”
Our earlier decision in United Sta tes v. Carr
, 5 F. 3d 98 6, 994 (6th Cir. 1 993), ha

d sugg ested tha

t § 4A1.3 r

equires a districtcourt to consider the sentencing rang es tha t would result from an increase of one offense level , tw o offens e levels, and

so on, increasing

the defendant’s offense level by more than one only if the cour t “demonstrate[s] why

it found the sentence imposed by each intervening level to be too lenient.” Carr , 5 F .3d at 994. 1 See also United States v. Gray , 16 F.3d 681, 683 (6th Cir. 1994). But Thomas held that Carr ’s interpretation of § 4 A1.3 did no t “re quire [] a sentencingcourt t o e xp la in fo rm al is ti ca ll y, g ri db lo ck -b ygridblock, why eac

h intervening range is inappropria te.” Thomas , 24 F.3d at 835.
“We read [§ 4A1.3] to require a court to continue moving downoffen se-le vel ran ges onl y until i t find s a range whichwould provide an a pprop riate sentence for the defenda nt, but no further. We do not re ad this torequire the court to move only one level, or

to explain it s rejection of each and every

intervening level. The langua ge indicate s quit e clearly that the c ourt shoul d continue to consider ranges ‘until it fi nds’ an appro

priate sentence for the d

efenda nt befor e it, but no thing in § 4A1.3 calls for a more detailed, gridblock-by -gridblock approach . . . .” Id. at 834.No. 02-6407 United Sta tes v. Bro wn 9

“The approach required of the sentencing court wh en departingbey

ond Crimin al History Categ ory VI ,” Thomas holds, “is to consider carefully all of the f

acts and circumstances surrounding the case which affe ct the departure, and

from them determine an appropriate sentence for the particular

defendant.” Id. at

835. If a court selec

ts an ap propria te sentence range in this manner, and if the cour t i ncreases the defendant’s offense level no more than necessary to arr ive at that r ange on the se ntenc ing t a ble, § 4A1.3 is satisfied.
T his is not to say that § 4A1.3 prohibits a district co ur t fromusing the Williams construct (or some similar expedient) as a reference

point when determining the extent of an upward departure. But

the use of such a construct – particularly one develop ed by a diffe

rent judge in a different case – cannot replace the exercise of the court’s independent judgment. If a district court chooses to follow the Williams approach in the beginn ing, the res ultan t sent ence ran ge is not to be treated as definitive; at the end of the day the cour tmust decide, in light of all the facts and circumstances of the particular case before it, wheth er the r ange in question is “appr opriate to the case.” (As Thomas makes clear, the process of “moving increme ntally down the sentencing table to the ne xt h igh er offense level,” see U.S.S.G. § 4A1.3, is simply a mea ns to an end; the wh ole p oint of the exercise is to “find[] a guideline range appropriate to the ca se.” Id .) If , having electe d to use th e Williams methodology a s a navigational aid, the court finds that the r ange to which that methodology points is not “a gu ideline range

appropr iate to the

case,” the cour t must select a different range

. Inthe case

at bar, i t seems to u s, the record does not reflect anindepend

ent dete rmination by t he distric t c ourt that the Williams range is appropriate for this particular case in light of the part icularize d factsof the case. The court knew, to be sure, that it was not required t o use th e Williams me th od ol og y; the court twice referred to Williams as an “example.” But aft er choo si ng to ap pl y Williams , the court 10 United Sta tes v. Bro wn No. 02-6407
accepted the resulting sentence range withoutcomment. As far as the record indicates, the cou rt gave no independent thought to whether that range was appr opriate under the individual circumstances of Mr. Brown’s case.
It is true that, in rejecting the governmen t’ s recomme ndati on of a sentence of life in prison, the district court said that “360 month s is adequa

te punishment for these offenses.” Bu t we do n ot interpr et this com

ment as a determination

that 360 months to life is an appr

opriate sentence range. The question is whether a d eparture to a range starting below 360 months would be adequate an d appropr iate for Mr . Brown ’s offense. That is a question the court does not seem to have addressed. The sentenc e is VACATED, and the case isREMANDED for further proceedings not inconsistent with this opinion.No. 02-6407 United Sta tes v. Bro wn 11

APPENDIX
SENTE NCING T ABLE (in mon ths of impriso

nment) Criminal History Cat

egory (Criminal History Point s)
O FFENSE L EVEL I

(0-1) II

(2 or 3) III

(4, 5, 6) IV

(7, 8, 9) V

(10, 11, 12) VI

(13 OR MORE )

1 0-6 0-6 0-6 0-6 0-6 0-6 2 0-6 0-6 0-6 0-6 0-6 1-7 3 0-6 0-6 0-6 0-6 2-8 3-9



### \

*** 

### [ \

*** 

### [ \

*** 

### [

30 97-121 108-135 121-151 135-168 151-188 168-210 31 108-135 121-151 135-168 151-188 168-210 188-235 32 121-151 135-168 151-188 168-210 188-235 210-262 33 135-168 151-188 168-210 188-235 210-262 235-293 34 151-188 168-210 188-235 210-262 235-293 262-327 35 168-210 188-235 210-262 235-293 262-327 292-365 36 188-235 210-262 235-293 262-327 292-365 324-405 37 210-262 235-293 262-327 292-365 324-405 360-life 38 235-293 262-327 292-365 324-405 360-life 360-life 39 262-327 292-365 324-405 360-life 360-life 360-life 40 292-365 324-405 360-life 360-life 360-life 360-life 41 324-405 360-life 360-life 360-life 360-life 360-life 42 360-life 360-life 360-life 360-life 360-life 360-life 43 life life life life life life