1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0175P (6th Cir.)

File Name: 04a0175p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHALMERS BROWN,

Defendant-Appellant.

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No. 02-6407

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 02-20059—Samuel H. Mays, Jr., District Judge.

Argued: February 5, 2004

Decided and Filed: June 10, 2004 

Before: NELSON, GILMAN, and ROGERS, Circuit

Judges.

_________________

COUNSEL

ARGUED: Stephen B. Shankman, OFFICE OF THE

FEDERAL PUBLIC DEFENDER FOR THE WESTERN

DISTRICT OF TENNESSEE, Memphis, Tennessee, for

Appellant. David N. Pritchard, ASSISTANT UNITED

STATES ATTORNEY, Memphis, Tennessee, for Appellee.

ON BRIEF: Stephen B. Shankman, April R. Goode,

2 United States v. Brown No. 02-6407

OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR

THE WESTERN DISTRICT OF TENNESSEE, Memphis,

Tennessee, for Appellant. John T. Tibbetts, ASSISTANT

UNITED STATES ATTORNEY, Memphis, Tennessee, for

Appellee.

_________________

OPINION

_________________

DAVID A. NELSON, Circuit Judge. Under the federal

sentencing guidelines, a criminal defendant may be given a

prison sentence exceeding the range prescribed in the

guidelines manual’s sentencing table if the criminal history

category to which the defendant has been assigned does not

adequately reflect his past conduct or the likelihood that he

will commit additional crimes. See the Sentencing

Commission’s Policy Statement at U.S.S.G. § 4A1.3.

The appropriate extent of an upward departure can often be

measured by reference to the sentence range for a person in

the next criminal history category above the defendant’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 directs the sentencing court to “structure”

the departure by moving to successively higher offense levels

(the defendant’s offense level being the other variable in the

sentencing table) until the court comes to “a guideline range

appropriate to the case.” Id.

The defendant in the case at bar, who had at least 13 prior

felony convictions, pleaded guilty to a charge of knowingly

possessing a certain Norberto Arizmendi shotgun in violation

of 18 U.S.C. § 922(g), the statute that criminalizes possession

of a firearm by a convicted felon. The defendant’s lengthy

criminal record made him a prime candidate for an upward

departure from the sentence range (168-210 months) specified
No. 02-6407 United States v. Brown 3

in the table. Employing 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 (2001)

(unpublished), the district court sentenced the defendant to

imprisonment for a term of 360 months.

We cannot tell whether the sentence range (360 months to

life) produced by the Williams methodology was one which

the district court, in the exercise of its independent judgment,

considered appropriate to the particular circumstances of this

particular case. We shall therefore vacate the challenged

judgment and remand the case for resentencing.

I

At 10:15 on the morning of November 25, 2001, according

to a subsequently prepared presentence investigation report,

three robbers broke into Tara Thompson’s house on Laclede

Avenue in Memphis, Tennessee. Inside the house were Ms.

Thompson, her boyfriend Tallen Williams, and three children

ranging in age from three to 14. 

One of the intruders — described by Ms. Thompson 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 second

intruder — a “short, chubby” man, not wearing a mask —

had a small handgun. (Chalmers Brown, the defendant in the

case at bar, stands 5'6" in height and weighs 187 pounds,

according to the presentence report; he would thus seem to

bear a closer resemblance to the short, chubby man with the

handgun than to the tall, thin man with the shotgun.) The

third intruder, who wore a black ski mask, was apparently

unarmed. 

Ms. Thompson called 911 while the intruders were kicking

in her front door. Once inside, according to a statement Ms.

Thompson was to give the police, the short, chubby man

pointed his handgun at her and her children and asked where

4 United States v. Brown No. 02-6407

her money was. The tall, thin man likewise demanded

money. In the course of the ensuing tumult, Ms. Thompson’s

statement says, the oldest child was repeatedly hit in the head

with the shotgun and the weapon was fired once. The blast

hit Ms. Thompson’s dog in the foot, and some of the pellets

struck Ms. Thompson in the face and arm. 

As the police were arriving in response to the 911 call, the

robbers escaped with a Playstation and some money Mr.

Williams had in his pants. Two days later a crime stoppers

tip implicated Chalmers Brown (the defendant herein) and

two other suspects. Shown a photo-array, according to the

presentence report, Ms. Thompson “positively identified

Chalmers Brown as the person who shot her, assaulted her

family and shot her dog.” (The presentence report does not

comment on the anomalous circumstance that Ms.

Thompson’s statement to the police described the masked

man with the shotgun as being much taller and thinner than

Mr. Brown; one wonders if in fact Ms. Thompson did not

simply identify the bare-faced Mr. Brown as a member of the

trio, without claiming that he personallywielded the shotgun.)

On the day after Ms. Thompson identified Mr. Brown’s

picture, a police officer spotted Brown getting 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 in the trunk. Mr. Brown admitted

ownership of the shotgun.

Charged with both state and federal crimes, Mr. Brown

found himself moved along the federal track first. A

superseding indictment handed up by a federal grand jury in

April of 2002 charged him with three counts of violating the

felon-in-possession statute, 18 U.S.C. § 922(g). Mr. Brown

pleaded guilty to the first count of the superseding indictment

pursuant to a Rule 11 plea agreement. (It was the first count,

as we have indicated, that charged him with illegal possession

of a Norberto Arizmendi shotgun.) The other two counts

were dismissed by the government. 
No. 02-6407 United States v. Brown 5

The probation officer who prepared Mr. Brown’s

presentence investigation report originally assumed that the

Norberto Arizmendi shotgun was the same weapon with

which Ms. Thompson and her son and dog had been

assaulted. Based on this assumption, and using the 2001

edition of the guidelines manual, the probation officer

assigned Mr. Brown an offense level of 31. In a subsequent

addendum to the presentence report, however, the officer

noted that whereas Ms. Thompson had described the shotgun

used in the robbery as a “pistol pump” weapon, the Norberto

Arizmendi referred to in Count One of the indictment did not

have a pistol pump feature. The addendum recommended

that Brown’s total offense level be set at 30, rather than 31,

unless the United States could prove that 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 were one

and the same, and the district court therefore accepted the

revised computation of Brown’s offense level. Under the

manual’s sentencing table — an abbreviated version of which

is included as an appendix to this opinion — a defendant who

has earned a place in Criminal History Category VI and who

has an offense level of 30 is assigned a guideline sentence

range of 168-210 months.

Prior to issuance of the addendum to the presentence 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 suffices to place a defendant in

Criminal History Category VI, Mr. Brown had amassed more

than four times that number of points — 53, to be precise.

Category VI thus failed adequately to reflect Mr. Brown’s

past criminal behavior, the government argued. 

The district court agreed. The court also accepted the

methodology proposed by the government for determining the

extent of the upward departure. That methodology, as we

6 United States v. Brown No. 02-6407

have said, was one approved by the Sixth Circuit’s

unpublished decision in the Williams case, available

electronically at 2000 WL 1872059. 

The sentencing court in Williams used a criminal history

scale of its own creation, with phantom categories designed

to trigger incremental increases in the defendant’s offense

level. See Williams, 2000 WL 1872059, at **2. The

Williams methodology provides for no increase in the offense

level of a defendant whose criminal history score is 15 or less.

A criminal history score of 16 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 increases in the offense

level. A criminal history score of 48 or more yields an

increase of 10 in the offense level.

Accepting the Williams methodology as “persuasive and

logical,” the court below treated Mr. Brown as having an

offense level of 40 rather than 30. As can be seen from a

glance at the sentencing table set forth in the appendix, infra,

the range prescribed for a defendant in Criminal History

Category VI who 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-year-old Mr. Brown

sentenced to life imprisonment. The district court, however,

opted to impose a sentence — 30 years — at the bottom of

the guideline range determined under Williams. Mr. Brown

has perfected a timely appeal from this 30-year sentence.

II

In general, a departure is permissible if the sentencing court

finds “that there exists an aggravating or mitigating

circumstance of a kind, or to a degree, not adequately taken

into consideration” by the guidelines. 18 U.S.C. § 3553(b).

Thus U.S.S.G. § 4A1.3 stated (before adoption of a change in

wording not relevant here) that “[i]f reliable information
No. 02-6407 United States v. Brown 7

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, the court may consider imposing a

sentence departing from the otherwise applicable guideline

range.”

Mr. Brown does not deny that an upward departure was

warranted in light of his remarkable criminal history. He

contends, rather, that it was inconsistent with U.S.S.G.

§ 4A1.3 for the district court to determine the extent of the

departure by employing jerry-built criminal history categories

not tailored to his individual case.

Although § 4A1.3 is designated a policy statement, rather

than a guideline, it is binding on the district courts. See

Stinson v. United States, 508 U.S. 36, 42 (1993). Failure to

follow § 4A1.3 constitutes an incorrect application of the

sentencing guidelines, see id., and is thus an abuse of

discretion. See United States v. Valentine, 100 F.3d 1209,

1210 (6th Cir. 1996).

The 2001 edition of the Sentencing Guidelines Manual

contained a passage (subsequently the subject of minor

changes in wording) that read as follows:

“Where the court determines that the extent and nature of

the defendant’s criminal history, taken together, are

sufficient to warrant an upward departure from Criminal

History Category VI, the court should structure the

departure by moving incrementally down the sentencing

table to the next higher offense level in Criminal History

Category VI until it finds a guideline range appropriate

to the case.” 

(The reader who does not have a clear mental image of the

configuration of the matrix to which the foregoing passage

alludes may wish to examine the sentencing table at this

juncture. See Appendix, infra.) “[W]hen the court cannot

8 United States v. Brown No. 02-6407

1

Carr’s statements as to how a sentencing court is to effect a multilevel increase in a defendant’s offense level may be regarded as dicta,

given that we were not reviewing such an increase in that case. The

departure issue in Carr was whether the district court had erred by

hypothesizing a criminal history category greater than VI rather than

increasing the defendant’s offense level. See Carr, 5 F.3d at 994.

move horizontally across the guideline grid because there are

no criminal history categories greater than VI,” as we put it in

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

denied, 513 U.S. 976 (1994), “[the court] should move

vertically down the offense level axis until it locates a range

which it deems appropriate to the facts of the case.”

Our earlier decision in United States v. Carr, 5 F.3d 986,

994 (6th Cir. 1993), had suggested that § 4A1.3 requires a

district court to consider the sentencing ranges that would

result from an increase of one offense level, two offense

levels, and so on, increasing the defendant’s offense level by

more than one only if the court “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 § 4A1.3 did not “require[] a

sentencing court to explain formalistically, gridblock-bygridblock, why each intervening range is inappropriate.”

Thomas, 24 F.3d at 835.

“We read [§ 4A1.3] to require a court to continue moving

down offense-level ranges only until it finds a range

which would provide an appropriate sentence for the

defendant, but no further. We do not read this to require

the court to move only one level, or to explain its

rejection of each and every intervening level. The

language indicates quite clearly that the court should

continue to consider ranges ‘until it finds’ an appropriate

sentence for the defendant before it, but nothing in

§ 4A1.3 calls for a more detailed, gridblock-by-gridblock

approach . . . .” Id. at 834.
No. 02-6407 United States v. Brown 9

“The approach required of the sentencing court when

departing beyond Criminal History Category VI,” Thomas

holds, “is to consider carefully all of the facts and

circumstances surrounding the case which affect the

departure, and from them determine an appropriate sentence

for the particular defendant.” Id. at 835. If a court selects an

appropriate sentence range in this manner, and if the court

increases the defendant’s offense level no more than

necessary to arrive at that range on the sentencing table,

§ 4A1.3 is satisfied.

This is not to say that § 4A1.3 prohibits a district court

from using 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

developed by a different 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

beginning, the resultant sentence range is not to be treated as

definitive; at the end of the day the court must decide, in light

of all the facts and circumstances of the particular case before

it, whether the range in question is “appropriate to the case.”

(As Thomas makes clear, the process of “moving

incrementally down the sentencing table to the next higher

offense level,” see U.S.S.G. § 4A1.3, is simply a means to an

end; the whole point of the exercise is to “find[] a guideline

range appropriate to the case.” Id.) If, having elected to use

the Williams methodology as a navigational aid, the court

finds that the range to which that methodology points is not

“a guideline range appropriate to the case,” the court must

select a different range.

In the case at bar, it seems to us, the record does not reflect

an independent determination by the district court that the

Williams range is appropriate for this particular case in light

of the particularized facts of the case. The court knew, to be

sure, that it was not required to use the Williams

methodology; the court twice referred to Williams as an

“example.” But after choosing to apply Williams, the court

10 United States v. Brown No. 02-6407

accepted the resulting sentence range without comment. As

far as the record indicates, the court gave no independent

thought to whether that range was appropriate under the

individual circumstances of Mr. Brown’s case.

It is true that, in rejecting the government’s

recommendation of a sentence of life in prison, the district

court said that “360 months is adequate punishment for these

offenses.” But we do not interpret this comment as a

determination that 360 months to life is an appropriate

sentence range. The question is whether a departure to a

range starting below 360 months would be adequate and

appropriate for Mr. Brown’s offense. That is a question the

court does not seem to have addressed.

The sentence is VACATED, and the case is REMANDED

for further proceedings not inconsistent with this opinion.
No. 02-6407 United States v. Brown 11

APPENDIX

SENTENCING TABLE

(in months of imprisonment)

Criminal History Category (Criminal History Points)

OFFENSE

LEVEL

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