UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 93 - 1067

______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PHILIP SCOTT ASHBURN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Texas

______________

( May 10, 1994 )

Before GOLDBERG, DAVIS, and DeMOSS, Circuit Judges.

GOLDBERG, Circuit Judge:

Philip Scott Ashburn appeals the sentence given him after he

pleaded guilty to two counts of bank robbery in violation of 18

U.S.C. § 2113 (a). At Ashburn's sentencing hearing, the district

court adopted the Presentence Investigation Report's (PSI)

calculation of the defendant's Guideline range under the Sentencing

Guidelines. The sentencing court overruled all but one of
 

1 The only objection sustained by the district court was to

allow an additional reduction in Ashburn's offense level for

acceptance of responsibility.

 

2 The indictment specifically charged Ashburn with

violations of 18 U.S.C. § 2113 (a). 

2

Ashburn's objections to the report.1 The court then determined

that the appropriate Guideline range for Ashburn's offense was 63

to 78 months. However, because the sentencing judge believed the

Guideline range insufficiently reflected Ashburn's criminal history

and likelihood of recidivism, he upwardly departed, sentencing

Ashburn to a term of 180 months.

Ashburn appeals the denial of his objections to the PSI and

the upward departure. Although the objections to the PSI are

without merit, we find that the upward departure was not

sufficiently justified and was based on improper considerations.

We therefore vacate Ashburn's sentence and remand this case for

resentencing pursuant to 18 U.S.C. § 3742 (f)(2)(A). 

I. Background

Ashburn pleaded guilty to Counts 3 and 4 of a four count

indictment that alleged that he participated in four separate Texas

bank robberies.2 In return for the guilty plea, the government

agreed to dismiss the other two counts. Count 3 charged Ashburn

with a bank robbery which occurred on July 3, 1992 in which $4,167

was stolen from the Bank of America in Fort Worth, Texas; Count 4

charged Ashburn with a robbery in which approximately $32,000 in

cash was stolen from the American Bank of Hurst, Texas on July 31,
3

1992.

The PSI prepared prior to Ashburn's sentencing revealed that

he had been convicted in 1984 of armed bank robbery. For this

offense, Ashburn served a six year sentence in the custody of the

Attorney General under the Federal Youth Corrections Act (YCA),

formerly codified at 18 U.S.C. § 5010 (b). The PSI assessed three

criminal history points against Ashburn for this prior conviction,

producing a criminal history category of II. The PSI also

increased Ashburn's offense level by two for the instant offenses

because he made an express threat of death while committing the

July 31 robbery. United States Sentencing Commission, Guidelines

Manual (U.S.S.G.) § 2B3.1 (b)(2)(F).

The court granted Ashburn's request for a three level

reduction in his offense level for acceptance of responsibility,

U.S.S.G. § 3E1.1 (b)(2), instead of the two level reduction

recommended by the PSI. The court then overruled all of Ashburn's

other objections to the PSI. As a result, Ashburn's offense level

was calculated at 25. When this figure was cross-referenced with

his Criminal History Category of II, Ashburn's Guideline range was

63 to 78 months. The court, dissatisfied with this range, notified

the parties of its provisional intention to upwardly depart from

the Guideline calculation.

To support the upward departure, the government called Federal

Bureau of Investigation (FBI) agent, Deborah Eckert, who testified

at the sentencing hearing about her investigation into several

robberies and attempted robberies for which Ashburn was alleged to
 

3 Ashburn was never charged with this robbery.

 

4 Pursuant to the plea agreement, the government agreed not

to prosecute Ashburn for these two attempts.

4

be responsible. Agent Eckert described an interview she conducted

with Ashburn's co-defendant, April Jeanette English. In that

interview, English asserted that Ashburn had admitted to her that

he had committed two earlier robberies in December of 1991 and

January of 1992. These two robberies, charged in counts 1 and 2 of

Ashburn's indictment, were later dismissed under the plea

agreement.

English also told Eckert that in April of 1992, she (English)

received a call from Ashburn in which he stated he had committed a

robbery in Florida. Eckert confirmed that a robbery had been

reported in Key West, Florida on the specified day.3 Eckert also

testified about two additional attempted robberies in July of 1992

which Ashburn had related to English.4

The district court concluded that the Criminal History

Category II did not adequately reflect the seriousness of Ashburn's

past conduct or the likelihood that he would commit additional

crimes. The judge therefore upwardly departed, sentencing Ashburn

to serve concurrent 180 month terms of imprisonment on Counts 3 and

4. The court also sentenced Ashburn to a 3 year term of supervised

release. 

Ashburn contends that the district court erroneously

calculated his offense level and Criminal History Category and made
5

various errors in its decision to upwardly depart.

II. ANALYSIS

Ashburn makes two objections to the district court's

calculation of the appropriate sentence range for his crimes. His

first argument regards the increase in his sentence for an express

threat of death; the other concerns the inclusion of his YCA

conviction in the determination of his Criminal History Category.

Ashburn also appeals the judge's decision to upwardly depart from

the Guidelines range on the grounds that the judge failed to

provide sufficient justification for the departure and because the

departure was unsupported by proper evidence. We will address each

consideration in turn.

Prior to embarking upon the analysis of Ashburn's specific

contentions, we note that "[o]ur review of a sentence under the

guidelines is `confined to determining whether a sentence was

imposed in violation of law or as a result of an incorrect

application of the sentencing guidelines.'" United States v.

Shipley, 963 F.2d 56, 58 (5th Cir.), cert. denied, 113 S. Ct. 348,

121 L. Ed. 2d. 263 (1992) (quoting United States v. NevarezArreola, 885 F.2d 243, 245 (5th Cir. 1989)) (internal quotations

omitted); 18 U.S.C. § 3742 (e). This court reviews the lower

court's application of the Guidelines de novo and its findings of

fact for clear error. United States v. Brown, 7 F.3d 1155, 1159

(5th Cir. 1993).

A. Express Threat of Death
 

5 Section 2B3.1 (b)(2)(F) specifies that, "if an express

threat of death was made, increase by 2 levels."

6

The district court adopted the PSI's recommendation of a two

point increase in Ashburn's offense level due to an express threat

of death. U.S.S.G. § 2B3.1 (b)(2)(F).5 While making his escape

from the July 31 robbery, several bystanders observed Ashburn exit

the bank. The observers gave chase. Ashburn stopped, turned

toward these interlopers, and, holding his hand in his pocket to

simulate the presence of a gun, shouted "Stop - I've got a gun and

I will shoot you!" Ashburn then ran toward a car occupied by his

co-defendant English, hopped in, and sped away.

The district court concluded that Ashburn's threatening

remarks to the bystanders were sufficient to justify a two point

increase in Ashburn's offense level. Ashburn contends that this

increase was in error because the Commentary to § 2B3.1 establishes

that the two level enhancement applies only when the threat is

directed at the victim of the robbery. The threat of death in this

case, contends Ashburn, was directed only at bystanders.

Therefore, according to Ashburn's interpretation of the Commentary,

the increase of two levels was improper.

The Supreme Court recently held that Commentary in the

Sentencing Guidelines "that interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading

of, that guideline." Stinson v. United States, 113 S. Ct. 1913,

1915, 123 L. Ed. 2d 598 (1993). Thus, we are bound to follow the
7

Commentary unless it can be shown to be inconsistent with the

Guidelines. In this case, because we find such an inconsistency,

we are not constrained by the Commentary's interpretation of the

Guidelines.

Ashburn relies on the Commentary to section 2B3.1 which

explains the meaning of an "express threat of death". The

Commentary states that the:

court should consider that the intent of the underlying

provision is to provide an increased offense level for

cases in which the offender(s) engaged in conduct that

would instill in a reasonable person, who is a victim of

the offense, significantly greater fear than that

necessary to constitute an element of the offense of

robbery. 

U.S.S.G. § 2B3.1, note 6. According to Ashburn, this Application

Note explains that the enhancement for a threat of death is

directed at those offenders who menace victims with threats of

death. He notes that the examples cited in this Application Note,

"an oral or written demand using words such as `Give me the money

or I will kill you,'" always combine the threat of death with the

demand for money. In fact, the Application Note specifically links

the threat of death with an element of the offense. Ashburn

concludes that since escape is not an element of 18 U.S.C. § 2113,

the district court incorrectly enhanced his sentence for threats of

death.

If Ashburn is correct that a bystander cannot be a victim of

a bank robbery under the Commentary, then an inconsistency exists

between this Application Note and the section of the Guidelines on

which it is based. In such circumstances, we follow the
8

Guidelines. Stinson, 113 S. Ct. at 1918 ("If, for example,

commentary and the guideline it interprets are inconsistent in that

following one will result in violating the dictates of the other,

the Sentencing Reform Act itself commands compliance with the

guideline. See 18 U.S.C. §§ 3553 (a)(4), (b).") 

The applicable Guideline simply states that "if an express

threat of death was made, increase by 2 levels." U.S.S.G. § 2B3.1

(b)(2)(F). This section is not limited to those threats made

against the victims of the bank robbery, e.g., a teller. The

Guideline does not exclude bystanders from its reach and to imply

such an exclusion would contradict the language of the Guidelines.

Thus, if the Commentary is properly construed by Ashburn, it does

not carry the force of law.

This opinion, however, should not be interpreted to hold that

any threat of death, whenever and to whomever made, suffices to

enhance a defendant's sentence. The threat must occur as part of

the commission of the bank robbery. However, as we show below, the

crime of bank robbery is ongoing during the phase in which the

defendant effects his escape. Thus, a sufficient nexus exists

between Ashburn's threat of death to bystanders and his commission

of the bank robbery for the two level enhancement under § 2B3.1

(b)(2)(F) to be proper in this case.

To determine whether a sufficient link exists between an

express threat of death made to a bystander and the commission of

the offense, we must delineate the boundaries of the crime.

Specifically, the issue before us is whether Ashburn was still
9

committing a bank robbery when he threatened to shoot the

bystanders. That is, we must ask whether Ashburn was in the

process of robbing the bank, or escaping, or both, when he menaced

the lives of these onlookers. 

In United States v. Bates, 896 F.2d 912 (5th Cir.), cert.

denied, 496 U.S. 929, 110 S. Ct. 2628, 110 L. Ed. 2d 648 (1990),

this court held that in calculating a defendant's sentence, the

"district court was entitled, if indeed not required, to consider

conduct during flight in imposing sentence." Id. at 915. The

court then upheld the trial court's upward departure in the

defendant's sentence based on the mayhem committed during his

escape from a bank robbery.

Similarly, in United States v. Willis, we ruled that although

the crime of bank robbery does not require escape as an essential

element, "the crime continues throughout the escape" for the

purposes of determining the culpability of those who assist in the

perpetration of the crime. 559 F.2d 443, 444 n.5 (5th Cir. 1977).

The Willis court determined that "[t]he crime of larceny obviously

continues as long as the asportation continues and the original

asportation continues at least so long as the perpetrator of the

crime indicates by his actions that he is dissatisfied with the

location of the stolen goods . . ." Id. at 444; see also United

States v. Pate, 932 F.2d 736, 738 (8th Cir. 1991) ("A bank robbery

does not necessarily begin or end at the front doors of the

bank."); United States v. James, 998 F.2d 74, 80 (2d Cir.), cert.

denied, 114 S. Ct. 415, 126 L. Ed. 2d 362 (1993) (bank robbery
10

offense in 18 U.S.C. § 2113 (a) extends to the period of hot

pursuit). The sum of these cases is that many courts, ours

included, have found that the escape phase of the robbery can be

considered part of the offense of bank robbery under various

circumstances. We believe that the present situation is such a

circumstance. 

The Guidelines intended that any threat of death, if made

during the commission of a bank robbery, would be sufficient for a

two point increase in a defendant's offense level. The Guidelines

were as concerned with the impact of death threats upon innocent

passersby as upon bank employees. Therefore, we conclude that the

trial court properly denied Ashburn's objections to the two level

enhancement to his sentence for express threat of death.

B. Consideration of Youth Corrections Act Conviction for 

Criminal History Category

Ashburn contends that his 1984 bank robbery conviction is an

"expunged" conviction that, pursuant to U.S.S.G. § 4A1.2(j) should

not be included in his Criminal History Category. Section 5021 of

the YCA provides:

(a) Upon the unconditional discharge by the Commission of

a committed youth offender before the expiration of the

maximum sentence imposed upon him, the conviction shall

be automatically set aside and the Commission shall issue

to the youth offender a certificate to that effect.

18 U.S.C. 5021 (a) (1976) (emphasis added). The central question

here is whether the "set aside" language in the YCA means that the

conviction is "expunged" as that term is used in U.S.S.G. § 4A1.2

(j). Section 4A1.2 (j) provides that "[s]entences for expunged

convictions are not counted" for purposes of calculating a
 

6 Ashburn also relies on the Ninth Circuit's decision in

United States v. Kammerdiener, 945 F.2d 300 (9th Cir. 1991)

holding that YCA convictions which had been set aside under §

5021 could not be counted in a defendant's criminal history

category. The court in Kammerdiener relied in part on the

circuit's prior decision in United States v. Hidalgo, 932 F.2d

805 (9th Cir. 1991) stating that "set aside" as defined in a

California youthful offender statute amounted to an expungement

under § 4A1.2 (j). 

11

defendant's Criminal History Category. The YCA conviction cannot

be considered in calculating Ashburn's criminal history if by "set

aside" in the YCA, Congress meant for the conviction to be

"expunged."

Ashburn contends that we are bound by this court's decision in

United States v. Arrington, 618 F.2d 1119 (5th Cir. 1980), cert.

denied, 449 U.S. 1086, 101 S. Ct. 876, 66 L. Ed. 2d 812, (1981).

In that case we reversed the defendant's conviction for possession

of a weapon by a felon because the prior conviction had been set

aside under the YCA. We stated that "[e]xpunction of Arrington's

conviction was clearly automatic upon his unconditional discharge

at the end of six years." 618 F.2d at 1124. We held that "[i]f

a youthful offender has been unconditionally discharged, the

disabilities of a criminal conviction are completely and

automatically removed; indeed, the conviction is set aside as if it

had never been." Id.6

Ashburn has overstated the reach of our holding in Arrington;

therefore, we are not persuaded that his conviction was expunged

for purposes of calculating his Criminal History Category. In

Arrington, we explicitly declined to delineate the contours of

"expungement": "We do not need to decide now if 18 U.S.C. § 5021
 

7 We note the Tenth Circuits definition of expunction as

follows: "[w]ith respect to criminal records, expunction refers

to the process of sealing or destroying the record of a criminal

conviction after expiration of a certain time." United States v.

Johnson, 941 F.2d 1102, 1111 (10th Cir. 1991) (citing Black's Law

Dictionary at 522 (5th ed. 1979)).

12

(a) (1976) also serves to expunge even the record of Arrington's

previous conviction. For the purposes of this appeal, defining

expunction to include at least setting aside his conviction is a

satisfactory resolution." 618 F.2d at 1124 n.8.

Congress' design in employing the term "set aside" cannot be

easily determined. We must determine whether in utilizing the "set

aside" language in the YCA, Congress intended to eliminate all

evidence of the conviction, i.e. through physical destruction of

the record of conviction,7 or whether Congress merely intended to

eradicate certain legal consequences of that conviction. If it is

the latter, then we must ascertain whether in abolishing the legal

consequences of a YCA conviction, Congress intended to also suspend

the ability of a future court to consider that conviction in

calculating a defendant's Criminal History Category.

Various courts have addressed whether the language in the YCA

mandating an "automatic[] set aside" of a YCA conviction, 18 U.S.C.

§ 5021, requires actual destruction or elimination of the record of

conviction. Most have found that the YCA does not allow a court to

authorize the actual physical obliteration of the record of

conviction. See United States v. Doe, 732 F.2d 229 (1st Cir.

1984); United States v. Doe, 556 F.2d 391 (6th Cir. 1977); United

States v. McMains, 540 F.2d 387 (8th Cir. 1976); but see United
13

States v. Doe, 980 F.2d 876 (3d Cir. 1992). These cases generally

hold that if Congress meant to "expunge" the records in the sense

of making them wholly unavailable through segregation and seal or

through complete destruction, it would have so specified in the

statute. See, e.g., Doe, 732 F.2d at 230 (1st Cir.) (district

court correctly refused to order records destroyed because "we do

not see how this relief can be granted without rewriting the

statute, since the statute makes no reference to arrest records.")

In addition, these courts reasoned that because the arrest

records of those who are acquitted or not prosecuted at all remain

in the general police files, "[t]o destroy or segregate the present

arrest records would leave a convicted person with a cleaner slate

than an arrestee who was never found guilty." Id. Finally, the

First Circuit looked to the legislative history of the YCA and

found nothing to support the conclusion that Congress intended to

allow an expungement of the actual records of a YCA conviction.

Id.; contra Doe, 980 F.2d at 879-82 (3d Cir.) (history of act

indicates drafters wanted youthful offenders who served their time

and rehabilitated themselves to have the stigma wiped out). With

the exception of the Third Circuit's recent Doe decision, our

sister circuits have generally agreed that the "set aside"

provision in § 5021 (a) is not an expungement in the sense of

obliterating or even segregating and sealing the records of

conviction.

Similarly, we decide today that the "set aside" provision

should not be interpreted to be an expungement under § 4A1.2 (j) in
14

calculating a defendant's criminal history category. The

Commentary to § 4A1.2 (j) explains that convictions which are set

aside for "reasons unrelated to innocence or errors of law, e.g.,

in order to restore civil rights or to remove the stigma associated

with a criminal conviction" are not expunged for purposes of this

Guideline and can be included in Criminal History Category

determinations. Because the YCA conviction here was set aside for

"reasons unrelated to innocence or errors of law," it was properly

utilized in the criminal history calculation.

The legislative history of section 5021 supports our analysis.

The amendment's sponsor, Senator Dodd, testified that section 5021:

provides an additional incentive for maintaining good

behavior by holding out to the youth an opportunity to

clear his record . . . For those who demonstrate a

willingness to help themselves, every reasonable

opportunity is afforded to assist them in making a new

start.

107 Cong.Rec. 8709 (1961). The YCA was designed to give the young

defendant a new lease on life. Congress determined that a

spontaneous, youthful transgression should not inhibit a person's

evolution into productive citizenship. However, this beneficent

offer of a "second chance" to the immature offender should not be

available as a shield for those whose original encounter with the

criminal world is used as a springboard to a life of felonious

conduct. We agree with the rationale of the D.C. Circuit that

"[i]f a juvenile offender turns into a recidivist, the case for

conferring the benefit dissipates. Society's stronger interest is

in punishing appropriately an unrepentant criminal." United States

v. McDonald, 991 F.2d 866, 872 (D.C.Cir. 1993) (quoting Barnes v.
15

United States, 529 A.2d 284, 286-89 (D.C. 1987)) (citations

omitted). The YCA was not intended to allow a person convicted

under its auspices to rewrite his life when his handwriting shows

that post-conviction activities are criminal in nature.

In sum, the YCA conviction, which under section 5021 (a) is

automatically "set aside" upon release of the defendant, should not

be considered expunged for purposes of calculating the defendant's

Criminal History Category. Although the language of section 5021

is not as clear as it should be, we believe that Congress did not

intend that it be used to protect the recidivist from the full

consequences of his actions. The district court, therefore, acted

properly in considering this conviction.

C. Upward Departure

Ashburn complains that the district court improperly imposed

an upward departure pursuant to U.S.S.G. § 4A1.3. He argues that

the departure from a Guideline range of 63-78 months to a sentence

of 180 months was excessive and unjustified and based on conduct

dismissed pursuant to a plea bargain or not established by

sufficient evidence. 

A district court may upwardly depart from the Sentencing

Guidelines if the court finds that an aggravating circumstance

exists that was not adequately taken into consideration by the

Sentencing Commission. 18 U.S.C. § 3553 (b). Whenever a defendant

is sentenced, the district judge is required to "state in open

court the reasons for its imposition of the particular sentence."

18 U.S.C. § 3553 (c). If the court upwardly departs from the
16

Guidelines, the court must also state "the specific reason for the

imposition of the sentence different from that described." Id.

We review the district court's decision to upwardly depart for

abuse of discretion. United States v. McKenzie, 991 F.2d 203, 204

(5th Cir. 1993). We will affirm a departure from the Guidelines

"if the district court offers `acceptable reasons' for the

departure and the departure is `reasonable.'" United States v.

Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc) (quoting

United States v. Velasquez-Mercado, 872 F.2d 632, 637 (5th Cir.

1989)). Under U.S.S.G. § 4A1.3, an upward departure "is warranted

when the Criminal History Category significantly under-represents

the seriousness of the defendant's criminal history or the

likelihood that the defendant will commit further crimes."

1. Adequacy of Departure Justification

We have previously outlined the procedure for making an upward

departure where the defendant's Criminal History Category is

inadequate. Lambert, 984 F.2d at 662-63. To upwardly depart under

U.S.S.G. § 4A1.3, district courts must first consider adjusting the

defendant's Criminal History Category to the next higher category.

Id. at 661. The sentencing court must then evaluate each

successive Criminal History Category above the appropriate

Guideline range. U.S.S.G. § 4A1.3. In Lambert, we explained:

the district court should consider each intermediate

criminal history category before arriving at the sentence

it settles upon; indeed, the court should state for the

record that it has considered each intermediate

adjustment. Further, it should explain why the criminal

history category as calculated under the guidelines is

inappropriate and why the category it chooses is

appropriate. 
 

8 The December 1991 and January 1992 robberies had been

Counts 1 and 2 of the indictment and were dismissed pursuant to

the plea bargain.

 

9 Ashburn was never indicted on the allegations of the April

1992 bank robbery.

17

984 F.2d at 662-63. However, recognizing the complexities inherent

in setting a sentence appropriate to every defendant, "we do not .

. . require the district court to go through a ritualistic exercise

in which it mechanically discusses each criminal history category

it rejects en route to the category that it selects." Id. at 663.

Before we progress any further in our analysis, we will set

out the reasons advanced by the sentencing court in justifying an

upward departure in this case. The judge determined that had the

robbery offenses committed in December of 1991, January of 19928,

and April 19929 been considered in his Criminal History Category,

Ashburn would have received nine extra criminal history points.

Under the court's calculations, Ashburn would then have a total of

twelve criminal history points and a corresponding Criminal History

Category of V. When considered with an Ashburn's offense level of

25, the judge figured that Ashburn was facing a Guideline range of

100 to 125 months. 

The court then cited the 1984 YCA convictions and concluded

that "if they were to be taken into account, the Criminal History

Category VI would not be sufficient to take into account his past

criminal conduct." The court at this time referenced various

attempted robberies which Ashburn's co-defendant had imputed to

him. The court stated that given the "likelihood the defendant
18

will commit other crimes . . . as well as the seriousness of his

past criminal conduct" the court would impose a "rather drastic

upward departure from what the guideline range contemplates." The

judge then fixed a sentence of 180 months, found by indexing the

Criminal History Category of VI with an offense level of 29.

The sentencing judge, in sum, did provide some substantive

explanation for his decision to upwardly depart. However, the

sentence actually given was 230 per cent of the maximum Guideline

range. The court, therefore, should have given a detailed

accounting of how it reached this rather severe enhancement. In

Lambert, we explained that "[i]n a very narrow class of cases, we

can conceive that the district court's departure will be so great

that, in order to survive our review, it will need to explain in

careful detail why lesser adjustments in the defendant's criminal

history score would be inadequate." 984 F.2d at 663. The instant

case is the sort of drastic departure that the Lambert court had in

mind in this passage. 

The sentencing judge failed to make explicit the bulk of the

reasoning behind his decision to depart. Additionally, the judge

did not justify the overall magnitude of the upward departure. We

are therefore compelled to vacate the sentence and remand this case

to the district court for resentencing.

To begin with, the sentencing judge failed to indicate why the

Criminal History categories of III and IV should be bypassed. He

merely assessed the unindicted and dismissed robberies as prior

sentences under the Criminal History Category. The court failed to
 

10 The Guidelines include only prior sentences, not prior

offenses or prior conduct, in calculating the Criminal History

Category. U.S.S.G. § 4A1.1.

 

11 The Guidelines themselves explicitly state that a

departure beyond Criminal History Category VI is for the "case of

an egregious, serious criminal record in which even the guideline

range for Criminal History Category VI is not adequate to reflect

the seriousness of the defendant's criminal history." U.S.S.G.

4A1.3 (policy statement).

19

indicate why it thought such a calculation, contrary to the

requirements of the Guidelines, was necessary.10 The judge also

failed to indicate why he believed the Criminal History Category V

was inadequate and why the jump to VI was required.

The judge's reference to Ashburn's previous YCA convictions in

upwardly departing is also insufficient as a justification for the

upward departure since this conduct had already been considered in

the calculation of the Criminal History Category. To avoid double

counting, it is necessary for the court to demonstrate why the

Criminal History Category calculation inadequately reflected the

seriousness of Ashburn's crime. Without more detailed explanation,

the district court should not have included this prior sentence in

its consideration. 

In addition, the lower court did not indicate why even

Criminal History Category VI was inadequate, thereby justifying an

increase in the offense level from 25 to 29 in the final sentence.11

Such a radical departure from the requirements of the Guidelines

cannot be justified by simple recitation of the language of § 4A1.3

that the Criminal History Category failed to reflect the

probability of recidivism and the wrongfulness of the defendant's
 

12 The Second Circuit has held that an upward departure

beyond criminal history category VI would be justified under

"only the most compelling circumstances--for example, prior

misconduct accompanied by wanton cruelty. . ." United States v.

Cervantes, 878 F.2d 50, 55 (2d Cir. 1989).

20

prior acts.12 Mouthing of the court's authority under § 4A1.3 to

depart where 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" does

not meet the sentencing court's burden of adequately justifying an

upward departure. Recidivism and seriousness are not magic words

which by their mere utterance empower the judge to depart from the

Guidelines. 

Our Lambert decision requires a judge departing from the

guidelines to make various showings. First, the sentencing court

must indicate that he or she has considered the intermediate

categories. Lambert, 984 F.2d at 662. This was partially

accomplished in this case. However, given the large number of

categories skipped, a more detailed consideration of intervening

categories should have been given. Second, the sentencing judge is

required to show why the Criminal History Category as calculated

under the guidelines is inadequate. Id. The sentencing judge in

the instant case failed to comply with this requirement. Although

he reiterated his belief that the Criminal History Category was

inadequate, he failed to provide any illumination as to why this

was so. Third, the court must show why the sentence it settles

upon is appropriate. Id. at 663. This was nowhere accomplished by

the judge sentencing Ashburn. Finally, the sentencing judge should
21

make sufficient reference to the factual record in justifying the

departure. In this case, more detailed references to the record

were essential, especially since the judge made an upward departure

of nine years over the top of the applicable Guideline range.

Lambert's words are not empty slogans. The type of departure

imposed in this case calls for strict adherence to its commands.

The sentencing court, in addition to justifying the particular

steps of the upward departure, should be able to justify the

overall magnitude of that departure. As the Tenth Circuit stated,

"[b]ecause a judge who departs no longer strictly follows the

standards of the Guidelines, uniformity is threatened. The

relative lack of constraint accompanying departures also threatens

the principle of proportionality." United States v. Jackson, 921

F.2d 985, 988 (10th Cir. 1990). The exercise of restraint and

moderateness in the situation of departures is therefore of great

importance.

There has been much written about the Sentencing Guidelines

and all of its appendices and commentaries. Some doubt has arisen

as to their effectiveness in controlling crime and in their

capacity for equalizing sentences based on actual criminal

activities. Suffice it to say that requiring specificity in the

reasoning of district judges will assure that appellate courts

fulfill their role as intelligent overseers capable of carrying out

the lofty intentions that animate the Guidelines.

Because the court did not adequately comply with 18 U.S.C. §

3553 (c) in explaining the reasons for the upward departure, we are
22

compelled to set aside Ashburn's sentence and to remand the case

for resentencing and for more detailed explication of any upward

departure the court finds appropriate.

2. Consideration of Prior Conduct in Upward Departure

Ashburn raises three additional concerns about the three prior

robberies that the court considered in making the upward departure.

We address each argument in turn.

a. Contemporaneous crimes

Ashburn first complains that the court should not have

considered the robberies because they were contemporaneous with the

counts upon which he was sentenced. In United States v. Coe, 891

F.2d 405 (2d Cir. 1989), the Second Circuit determined that "where

a defendant commits a series of similar crimes, it would be

elevating form over substance to regard the early episodes in the

series as `prior criminal history' simply because the defendant

pled guilty to the last in the series, rather than the first." Id.

at 409-10. However, the prior acts considered by the district

court in the instant case occurred seven, six and three months

prior to the offenses upon which Ashburn pleaded guilty. His

situation is therefore not analogous to the contemporaneous crime

spree faced by the court in Coe in which all the offenses occurred

within two weeks of each other. Thus, we find no merit in

Ashburn's argument that the sentencing court improperly considered

contemporaneous acts in its decision to upwardly depart based on

the inadequacy of the Criminal History Category.

b. Dismissed Offenses
23

Ashburn also contends that the sentencing court improperly

considered the December 1991 and January 1992 robberies as a basis

for upward departure because this conduct formed the basis for the

counts of Ashburn's indictment which were dismissed pursuant to his

plea bargain. We agree. Counts which have been dismissed pursuant

to a plea bargain should not be considered in effecting an upward

departure. United States v. Fine, 975 F.2d 596, 602 (9th Cir.

1992) (en banc); United States v. Castro-Cervantes, 927 F.2d 1079

(9th Cir. 1990).

To allow consideration of dismissed counts in an upward

departure eviscerates the plea bargain. Such consideration allows

the prosecutor to drop charges against a defendant in return for a

guilty plea and then turn around and seek a sentence enhancement

against that defendant for the very same charges in the sentencing

hearing. Cf. United States v. Thomas, 961 F.2d 1110, 1121 (3d Cir.

1992) (government should not be allowed to bring dismissed charges

"through the `back door' in the sentencing phase, when it had

previously chosen not to bring it through the `front door' in the

charging phase.")

Prior to the enactment of the Guidelines, no limits were

placed on the information a sentencing court could consider in

fashioning a sentence. The federal courts utilized a real-offense

sentencing approach in which the sentencing judge could consider

any conduct by the defendant whatsoever in setting a sentence,

including all offenses committed by the defendant whether

dismissed, unindicted, or the basis of an earlier conviction.
24

Appellate review under this system was, as a result, dramatically

circumscribed. The legislative history of the Sentencing

Guidelines indicates that the absence of appellate review in preGuidelines cases was a result of the fact that "sentencing judges

have traditionally had almost absolute discretion to impose any

sentence legally available in a particular case." S. Rep. No. 225,

98th Cong., 1st Sess. 149, 150 (1983) reprinted in 1984

U.S.C.C.A.N. 3332.

The Guidelines were enacted to bring uniformity and

predictability to sentencing. The Sentencing Guidelines "are

intended to afford enough guidance and control of the exercise of

[the district court's] discretion to promote fairness and

rationality, and to reduce unwarranted disparity, in sentencing."

Id. Appellate review of sentences to effectuate the desired

uniformity and predictability is essential to the structure of the

Guidelines. Id. This rationalized sentencing approach included a

modification of the real-offense sentencing program aimed at

limiting the information a sentencing court could take into account

in setting a defendant's sentence. U.S.S.G. § 1B1.3, note 8; see

also Stephen Breyer, The Federal Sentencing Guidelines and the Key

Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 11 (1988)

("A sentencing guideline system must have some real elements, but

not so many that it becomes unwieldy or procedurally unfair. The

Commission's system makes such a compromise."). 

In modifying the real-offense approach, the Sentencing

Commission refused to adopt a pure charge-offense approach in which
25

only the conduct actually charged could be considered in

sentencing. It instead limited in specific ways the information

the sentencing judge could consider in setting a sentence. See

United States v. Kim, 896 F.2d 678, 682-3 (2nd Cir. 1990) (setting

out the four ways in which acts of misconduct other than the

offense of conviction could be considered by a sentencing court).

The Commission delineated the particular information which it found

relevant and appropriate for consideration in setting a sentence

and left to the appellate courts the role of enforcing those

limits.

In sum, preservation of limits on what sentencing courts can

consider by way of sentencing is an essential part of the structure

of the Guidelines. We find that consideration of dismissed

offenses as a basis for an upward departure under § 4A1.3 is a

breach of that structure. We adopt the reasoning outlined by the

Ninth Circuit that a sentencing court should not be allowed to

violate the bargain worked out between the defendant and the

government. Castro-Cervantes, 927 F.2d at 1082; United States v.

Saldana, 12 F.3d 160, 163 (9th Cir. 1993); see also United States

v. Ruffin, 997 F.2d 343, 346 (7th Cir. 1993) (allowing

consideration of offenses dismissed pursuant to plea bargains prior

to the presently charged offenses, distinguishing Castro-Cervantes

on the grounds that it "holds no more than that a defendant who

pleads guilty receives the Guideline sentence for the crime to

which he pleaded."); but see United States v. Zamarripa, 905 F.2d

337, 341 (10th Cir. 1990) (when a defendant pleads to one in a
26

series of offenses, some of which are dismissed, an upward

departure is allowable based on the dismissed counts.).

The Ninth Circuit has stated that allowing consideration of

dismissed counts in sentencing "would undermine the integrity of

the plea bargaining system [and] . . . would severely undermine the

incentive of defendants to enter into plea bargains." United

States v. Faulkner, 952 F.2d 1066, 1070 (9th Cir. 1991). Given

that close to eighty five percent of federal convictions are plea

bargained, the integrity of this system is vital to our national

system of criminal justice. See United States Sentencing Comm'n,

Supplementary Report on the Initial Sentencing Guidelines and

Policy Statements, at 48 n.80 (1987). 

Just as civil society depends upon the judicial enforcement of

private contracts between individuals, the institutions of criminal

justice depend on the fair and equitable enforcement of plea

bargains. We should not tamper with this system by allowing the

government to violate its bargain and the whole plea bargain

process and bring dismissed offenses back in for the purposes of

upward departures under § 4A1.3.

The sentencing court has the power to reject a plea agreement

if it does not "adequately reflect the seriousness of the actual

offense behavior." U.S.S.G. § 6B1.2 (policy statement). Having

accepted the agreement, however, the court should not allow the

government to violate "the spirit if not the letter of the bargain"

by considering the dismissed offenses as a basis for an upward

departure. Castro-Cervantes, 927 F.2d at 1082.
 

13 Ashburn was convicted of bank robbery, which under the

guidelines is a non-groupable offense. Thus, the dismissed

counts could not be considered within the relevant conduct of

U.S.S.G. § 1B1.3 (a)(2).

27

The government asserts that a 1992 amendment to the Guidelines

contradicts our argument. The Sentencing Commission altered

U.S.S.G. § 6B1.2 to provide that if a plea agreement includes a

dismissal of charges, the agreement, "shall not preclude the

conduct underlying such charge from being considered under the

provisions of § 1B1.3 (Relevant Conduct) in connection with the

count(s) of which the defendant is convicted." This amendment, the

government argues, provides a basis for considering the conduct of

the defendant even if dismissed pursuant to a plea agreement.

The difficulty with the government's position is that in this

case, the dismissed counts were not counted as relevant conduct in

setting Ashburn's offense level.13 The sentencing court instead

considered the dismissed counts in making an upward departure based

on the inadequacy of the defendant's Criminal History Category.

The Ninth Circuit has observed precisely this distinction, allowing

consideration of dismissed counts in the case of relevant conduct,

but not for upward departures pursuant to § 4A1.3. See Fine, 975

F.2d at 602-03. In United States v. McAninch, 994 F.2d 1380 (9th

Cir.), cert. denied, 114 S. Ct. 394, 126 L. Ed. 2d 342 (1993), the

court found that dismissed counts could be considered as relevant

conduct pursuant to section 1B1.3 (a)(2). However, the court was

careful to distinguish and reaffirm the court's "previous holding

in [Castro-Cervantes] that a court may not depart upward from the
28

guidelines sentence on the basis of dismissed charges." 994 F.2d at

1383 (emphasis in original). 

The reasoning put forward by the Fine court bears repeating:

A person who pleads guilty under the sentencing

guidelines may be entitled to expect that he will receive

the guidelines sentence, not a sentence which departs

upward. The guidelines put a cap on his exposure,

usually well below the statutory maximum.

975 F.2d at 602. By contrast, where the sentencing court considers

the dismissed counts as relevant conduct, for example by grouping

stipulated amounts of drugs which had been the subject of counts

dismissed pursuant to a plea bargain, Fine states that "[t]he

reasonable expectation . . . of a sentence in accord with the

guidelines, was honored by the sentence imposed on [the

defendant]." Id. 

Consideration of dismissed counts as relevant conduct is

explicitly allowed by the guidelines. However, the bar to

considering dismissed counts in making upward departures remains an

important limitation in the modified real-offense sentencing

approach of our current sentencing program. Allowing consideration

of dismissed offenses would bring us much closer to the type of

pure real-offense sentencing system explicitly rejected by the

Guidelines. Such upward departures also contradict the

Commission's commitment to maintaining uniformity and fairness in

sentencing by significantly expanding the bases for making

acceptable upward departures. S. Rep. No. 225, 98th Cong., 1st

Sess. at 150 reprinted in 1984 U.S.C.C.A.N. at 3333. We think that

the overall ends of the Sentencing Guidelines are best served by a
 

14 In Alfaro, we denied a defendant's challenge to the

sentencing court's factual findings where the defendant "did not

request an evidentiary hearing on the issue, nor did he submit

affidavits or other sworn testimony to rebut the evidence

contained in the officer's affidavit and the presentence report." 

29

rule which prevents the government, and the sentencing judge, from

considering counts dismissed pursuant to a plea bargain in

requesting or carrying out an upward departure under § 4A1.3.

c. Unreliability of Evidence of Prior Conduct

Ashburn raises a final contention regarding the propriety of

his upward departure. He claims that the upward departure is based

on unreliable information and therefore cannot be considered under

§ 4A1.3. Ashburn contends that the only evidence connecting him to

the offenses considered in the upward departure was the unsworn

accusations of his co-defendant, English. Unsworn assertions

generally "do not bear `sufficient indicia of reliability to

support [their] probable accuracy', and, therefore, should not

generally be considered by the trial court in making its factual

findings." United States v. Alfaro, 919 F.2d 962, 966 (5th Cir.

1990) (quoting U.S.S.G. § 6A1.3 (a)).

However, a district court has wide discretion in evaluating

the reliability of the information presented before it and making

the determination as to whether or not to consider it. United

States v. Kinder, 946 F.2d 362, 366 (5th Cir. 1991), cert. denied,

112 S. Ct. 1677, 118 L. Ed. 2d 394 (1992). The district court need

only determine its factual findings by a "preponderance of the

relevant and sufficiently reliable evidence." Alfaro, 919 F.2d at

965.14 The defendant bears the burden of proving that the evidence
919 F.2d at 966. 

 

15 We note that Ashburn has failed show that the statements

made by English were untrue. However, because English herself

did not testify, no cross-examination of her testimony was

possible.

30

used against him in sentencing is "materially untrue, inaccurate or

unreliable." United States v. Angulo, 927 F.2d 202, 204 (5th Cir.

1991). "Specific factual findings . . . are reviewed on appeal

only for clear error." Id. at 205.15 

Given our holding with regard to dismissed counts, the

December 1991 and January 1992 offenses are unavailable for

consideration in making an upward departure. However, the

allegations of Ashburn's participation in the bank robbery in

Florida as well as the attempted robberies remain available for

evaluation in assessing the adequacy of the Criminal History

Category. 

The district court should nevertheless consider the

defendant's objections to these factual findings in light of the

longstanding suspicion and presumptive unreliability of unsworn

statements of co-defendants. In United States v. Flores, we held

that confessions of co-defendants are "presumptively unreliable as

to the passages detailing the defendant's conduct or culpability

because those passages may well be the product of the codefendant's

desire to shift or spread blame, curry favor, avenge himself, or

divert attention to another." 985 F.2d 770, 776 (5th Cir. 1993)

(quoting Lee v. Illinois, 476 U.S. 430, 545, 106 S. Ct. 2056, 2064,

90 L. Ed. 2d 514 (1986)). Because we have set aside the prior
31

sentence, the court on remand can evaluate in light of these

precedents whether, under the circumstances of the co-defendant's

testimony through the FBI agent, sufficient evidence exists to

support a factual finding as to these previous robberies. 

III. Conclusion.

This opinion discusses a number of elements of the guidelines

and its many satellitic disquisitions. We affirm the holding of

the lower court with regard to the two level enhancement for

express threat of death as we see no reason to artificially limit

the commission of the defendant's crime to the moments when he is

actually in the bank. Next, because Congress did not provide the

"set aside" provisions of the YCA for use as a protective shield in

carrying out a life of crime, Ashburn's prior YCA convictions were

properly counted in calculating his criminal history category.

There are two final holdings. First, we find that a

sentencing court has an obligation to explain the factual or legal

justifications for making a guideline departure from 78 to 180

months. It does not take any stretch of the imagination to

determine that this is a significant, if not radical departure, and

we impose a legal requirement that the departing judge provide a

legal explanation for that diversion. Second, we hold that it is

only under unusual circumstances that counts dismissed pursuant to

a plea agreement can be brought again into the foreground for

punishment. We cannot allow one party to forsake a plea agreement

to which the other party has remained faithful.
 

16 United States v. Fine, 975 F.2d 596, 602 (9th Cir.

1992) (en banc); United States v. Castro-Cervantes, 927 F.2d

1079 (9th Cir. 1990); United States v. Thomas, 961 F.2d 1110,

1121 (3d Cir. 1992).

 

17 United States v. Kim, 896 F.2d 678 (2d Cir. 1990);

United States v. Zamarripa, (10th Cir. 1990).

32

The sentence set by the lower court is therefore VACATED and

this case is REMANDED for resentencing in accordance with this

opinion.

DAVIS, Circuit Judge, concurring in part, dissenting in part:

I totally agree with the majority that this case should be

remanded so the district court can give further consideration to

its sentence. Unlike the majority, on remand I would not foreclose

the district court from considering in the upward departure

calculus the prior bank robberies the defendant was charged with

committing in Counts 1 and 2 of this indictment. 

As the majority opinion reflects, the circuits are split over

this question. The majority relies on the opinions of the Ninth

and Third Circuits.

16 These cases hold, as do the majority, that

the defendant does not get the benefit of his plea bargain when the

district court upwardly departs based on the dismissed counts of

the indictment. I agree with the Second and Tenth Circuits17 that

no reasonable basis exists for a defendant who enters a guilty plea

to believe that the court cannot use the prior criminal conduct

from the dismissed counts of the indictment to enhance his

sentence. Ashburn's plea bargain had no language that could have
33

led him to that conclusion. It provided that the government would

dismiss two of the counts and the government fully complied with

that obligation. 

I also find nothing in the guidelines themselves that would

lead a defendant to reasonably expect that the conduct underlying

the dismissed counts could not be used to enhance his sentence.

The general guideline authorizing departure, § 5K2.0 does so in

very broad terms. It authorizes the court to impose a sentence

outside the guideline range if the court finds "that there exists

an aggravating or mitigating circumstance of a kind, or to a degree

not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines. . . ." More specifically, 4A1.3 authorizes a court to depart "[i]f reliable information 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, . . .."

In deciding whether to depart because of the defendant's

criminal history, subsection (e) expressly authorizes the court to

consider "prior similar adult criminal conduct not resulting in a

criminal conviction." Neither this guideline nor its commentary

suggests that an exception exists for prior similar criminal

conduct that is the subject of dismissed counts of an indictment.

Because nothing in the plea agreement or the guidelines

prevents the district court from considering the criminal acts

underlying the dismissed counts, I would not require the district
34

judge to close his eyes to this conduct.