In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2720

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN CROSS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 354--Charles P. Kocoras, Judge.

Argued April 11, 2002--Decided May 10, 2002

 Before CUDAHY, DIANE P. WOOD, and EVANS,

Circuit Judges.

 EVANS, Circuit Judge. Steven Cross is a

bad seed. Since the late 1980’s, he has

had repeated brushes with the criminal

law of the state of Illinois, translating

into multiple felony convictions for

various species of theft and fraud. In

1994 he burnished his reputation as a

swindler with federal convictions for

bank fraud and the use of unauthorized

access devices. While on supervised

release for the federal violations, Cross

cooked up a new business plan: he falsely

held himself out, through an assortment

of business names, addresses, phone

numbers, aliases, and bank accounts, as

being an authorized dealer of Beanie

Babies and Pokemon playing cards, which

are (or were, it’s often hard to tell)

all the rage with kids. He offered

customers, mainly retailers, a discounted

price for these toys if they would send

him advance payment. In national

publications he also advertised $20

memberships in the "International Beanie

Baby Club," promising various benefits.

In all but a few instances, when anyone

sent him money--and here’s the genius of

the plan--he didn’t send the promised

goods. Although Cross might have thought

of this as a clever way of maximizing

profit, most people think of it as

getting something for nothing and, when
it’s achieved with the help of false

promises and interstate mail or wires,

it’s illegal. 18 U.S.C. sec.sec. 1341,

1343. The government indicted Cross--

after he made off with approximately

$275,000--on 12 counts of mail and wire

fraud. Cross pled guilty to the first

three counts of mail fraud, and the case

proceeded to sentencing.

 Applying the United States sentencing

guidelines, the district judge (Kocoras,

J.) calculated Cross’s offense level as

21. Cross had 20 criminal history points,

putting him in category VI, which is the

highest criminal history category. The

combination of an offense level of 21

with a category VI criminal history

produces a sentencing range of 77 to 96

months. The government argued that

because Cross’s 20 criminal history

points were 7 more than category

VI’sminimum number, and the majority of

the other categories have ranges of only

3 points, category VI did not adequately

reflect the seriousness of Cross’s past

criminal conduct and the likelihood of

his committing future crimes.

Accordingly, it moved for an upward

departure under sec.4A1.3 of the

guidelines.

 Judge Kocoras agreed . . . emphatically.

The judge told Cross: "[Y]ou approach

that category of one who is so callous,

so contemptuous of your fellow man, so

contemptuous of the criminal justice

system, that everything you say and do

has a ring of falsity and hollowness to

it." Cross, the judge observed, had such

"a capacity for lying and cheating . . .

as to give new meaning to the word

recidivist." Judge Kocoras went on to

tell Cross that although he had been in

prison before, "you come out and even

before your ability to breathe fresh air

is customary, you start cheating, again."

He concluded: "I am convinced beyond any

question--beyond any question--that you

are incapable of following the law.

Incapable of it." Judge Kocoras then

departed from the high point of the

relevant guideline range (96 months) and

sentenced Cross to the maximum term under

the mail fraud statute (60 months) for

each of the three counts and ordered the

sentences to run consecutively, a total

of 180 months.

 Cross challenges this sentence on
appeal. We review a district court’s

upward departure under sec.4A1.3 by athree-part test. United States v.

Peterson, 256 F.3d 612, 614 (7th Cir.

2001). First, a sentencing court must

state adequate grounds to support the

departure. We review this determination

de novo. Id. Second, we review for clear

error whether the facts cited to support

the departure actually exist. Id. Third,

the degree of departure must be linked to

the structure of the guidelines, a

determination we also review

deferentially. Id.

 It bears emphasizing that Cross does not

challenge Judge Kocoras’s determinations

as to the first two issues. There is no

dispute that Cross’s criminal activities

span 4 presidential administrations and

some 15 baseball seasons. Children born

in the era of Cross’s earliest recorded

cons are now getting dates for the prom.

There is no dispute that, despite stays

in prison and other forms of punishment,

Cross’s present crime involves the same

pattern of trickery and deceit prevalent

throughout his criminal history. There is

no dispute that Cross executed the Beanie

Baby/Pokemon stratagem while on

supervised release for previous federal

convictions. There is no dispute that

this case evinces the same callous

disregard for victims that Cross

apparently has maintained since his early

adulthood. There is no dispute, in short,

that Cross is likely to commit further

crimes when given the chance. Nor does

Cross seriously dispute that these facts

justify a departure under sec.4A1.3. The

only dispute is whether Judge Kocoras

erred by using an improper method for

determining the degree of the departure.

 But, on that point, Cross has some

traction. Section 4A1.3 provides that,

where an upward departure from a category

VI range is warranted, "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." Some popular methods that we

have approved, although surely not the

exclusive ones, are to add one offense

level for every 3 points above 13

(category VI’s minimum) or 15 (its

inferred maximum when read in light of

categories III, IV, and V). See, e.g.,
Peterson, 256 F.3d at 615-16 (affirming

district judge’s addition of one offense

level for every 3 criminal history points

exceeding 13); United States v. Ewing,

129 F.3d 430, 437 (7th Cir. 1997)

(affirming district judge’s addition of

one offense level for every 3 criminal

history points exceeding 15); United

States v. McKinley, 84 F.3d 904, 910-11

(7th Cir. 1996) (same as Ewing).

Variations of that approach, which we

mention only for illustrative purposes,

might have put Cross in a range of 92-115

months or 100-125 months or 110-137

months. Other approaches to linking the

departure to the structure of the

guidelines also may have been possible.

 Instead, staring at a criminal with

numerous opportunities for but no record

of rehabilitation, Judge Kocoras, a most

capable veteran jurist, simply imposed

the longest sentence statutorily possible

in order to achieve the maximum

incapacitation possible. Instead of

trying to translate this into guideline

gobbledygook about offense levels, he

commendably admitted:

And, so, while I am told by the guideline

manuals and the Court of Appeals where,

if I were to depart upward, to find some

measure in the guidelines in order to

find the number, do you want to know the

truth of it? And I will state it on the

record. There is no number that the

guidelines supply me that brings me some

measure of reason.

The only thing that guides me, Mr. Cross,

in my consideration is to incapacitate

you for as long as I can.

You have cheated enough people for a long

time and it is time you were told you

cannot do it any more. And that, purely

and simply, has no limit other than the

statutory limitation.

Defense counsel asked Judge Kocoras

whether he was tying the sentence to a

particular offense level. The judge

responded: "None will support it. I mean,

you can pick any number you want." He

added:

At Level 29, which is easily within the

facts of this case, you have a range of

151 to 188 months.
Now, fifteen years measures at, what?

Somewhere written [sic] that range. So,

that is the level I would pick, quite

frankly, but I am capped by the statute.

Judge Kocoras’s statements make clear

that he was not tailoring the departure

by increasing the offense level in

response to the extra criminal history

points but, rather, reaching a result

dictated by his stated sentencing goal

and then referencing, at defense

counsel’s request, the offense level and

sentencing range housing that number.

 Cross describes this as just the sort of

"visceral" sentencing that the guidelines

did away with. Visceral is an antonym of

rational, and we don’t think that

sentencing a practiced recidivist to the

statutory maximum is a result to which

reason could not lead a judge in this

case. But Cross’s larger argument stands:

on some points, the guidelinesreplace the

district judge’s reasoning with their

own, and this is such a case. The way in

which Judge Kocoras translated his

conclusions about Cross’s past criminal

conduct and future likelihood of

wrongdoing into a sentence ran afoul of

sec.4A1.3 and, therefore, was an abuse of

discretion. Although we sympathize with

the judge and can understand his disgust

with Cross, the guidelines--perhaps

unwisely-- cabin a judge’s sentencing

sensibilities in cases such as this. And

so we conclude that the case must be

remanded for resentencing in conformity

with the departure approach called for in

sec.4A1.3 as we have interpreted that

provision.

 One last point. Cross asks that under

Circuit Rule 36 we direct on remand that

this case be reassigned to a different

judge because of possible bias against

Cross. Judge Kocoras’s error was one of

method, not substance. Any sentencing

judge will evaluate Cross’s elaborate

criminal history and use it to depart

from the range (the facts and

justification for the departure not being

contested). The only question is how to

reach the magic number, a determination

that we are confident Judge Kocoras will

make this time using the method

prescribed by the guidelines. The case

will be remanded to him.

REVERSED.