1

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota, sitting by designation.

2

The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3457

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

David L. Chesborough, *

*

Appellant. *

___________

Submitted: May 15, 2003

Filed: June 26, 2003 

___________

Before BOWMAN and BYE, Circuit Judges, and ERICKSEN,1

 District Judge.

___________

BOWMAN, Circuit Judge.

David L. Chesborough appeals the decision of the District Court2

 to depart

upward from his sentencing guideline range. We affirm. 
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Chesborough pleaded guilty to one count of being a felon in possession of a

firearm, a violation of 18 U.S.C. § 922(g)(1). In the plea agreement, Chesborough

admitted to knowingly possessing six firearms. Before sentencing, the District Court

advised the parties that it was considering an upward departure. At sentencing, the

District Court found that Chesborough's criminal history category did not adequately

reflect the seriousness of his past criminal conduct or the likelihood that he would

commit future crimes. The District Court noted that Chesborough "has about as

lengthy a criminal record as any defendant [the district court has] seen." Transcript

of Continued Sentencing Hearing at 48 ("Sentencing Tr."). After detailing

Chesborough's lengthy criminal record, which began in 1958, the District Court

observed that Chesborough "received no criminal history points for four prior

burglary convictions, two prior convictions involving firearms, seven prior

convictions for theft or the like, four prior convictions for offenses involving motor

vehicles, two prior convictions for assaultive conduct, and one prior conviction for

fraud." Id. at 54–55. The probation officer did not include any of this criminal

history in Chesborough's criminal history calculation because it was too old to be

counted. See United States Sentencing Guidelines (U.S.S.G.) § 4A1.2(e)(3) (2001).

Based on these facts, the District Court increased his criminal history level by three

levels (from category II to V) under U.S.S.G. § 4A1.3 and § 5K2.21. Given

Chesborough's offense level of 20, the upward departure resulted in a sentencing

range of sixty-three to seventy-eight months. Id. Ch.5, Pt.A. The District Court

sentenced Chesborough to seventy months of imprisonment. On appeal,

Chesborough argues that the District Court abused its discretion in departing upward

because a criminal history category II does not understate the seriousness of his past

criminal conduct. 

At the outset, we note that, after this case was submitted for consideration,

Congress enacted legislation that affects the standard of review for departure issues

under the sentencing guidelines. PROTECT Act, Pub. L. No. 108-21, § 401, 117

Stat. 650, 667 (Apr. 30, 2003). In pertinent part, the statute appears to require
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de novo review of all cases in which a district court departs from the applicable

guideline range. See id. § 401(d)(2). Prior to the enactment of this law, our review

of a district court's decision to depart from the applicable guideline range was for an

abuse of discretion. See United States v. Thornberg, 326 F.3d 1023, 1026 (8th Cir.

2003) (citing Koon v. United States, 518 U.S. 81, 91 (1996)). We need not address

the issue of what the current standard of review is for a district court's departure from

the sentencing guidelines because we would affirm the upward departure at issue here

under either standard of review. See Thornberg, 326 F.3d at 1026 n.4 (noting that

under the Protect Act, the court would also affirm the district court's upward

departure). 

A district court may depart upward "[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." U.S.S.G. § 4A1.3. In addition, § 5K2.21 permits a district court to

"increase the sentence above the guideline range to reflect the actual seriousness of

the offense based on conduct (1) . . . underlying a potential charge not pursued in the

case as part of a plea agreement . . . and (2) that did not enter into the determination

of the applicable guideline range." In this case, the District Court relied on both of

these provisions in departing upward from the applicable guideline range. After a

careful review of the record, we are fully satisfied that in departing upward from the

guideline sentencing range, the District Court neither abused its discretion nor, if a

de novo standard be employed, did it err as a matter of law. 

Chesborough first argues that a criminal history category of II does not

understate the seriousness of his past criminal conduct. We reject this argument. The

presentence report (PSR) reflects the fact that Chesborough is a recidivist criminal.

During the last forty-five years, he has been convicted of approximately twenty

crimes. Chesborough fails to cite even a single case in support of his claim that an

upward departure is unwarranted in these circumstances. Moreover, other than
3

In that objection, Chesborough objected to the statement in the PSR that he

was convicted of burglary in Fresno, California in 1958. See Addendum to the PSR

at 1, Objection #2. In response, the probation officer noted that "an NCIC records

check revealed that [Chesborough] was arrested on 7/30/59 and charged with

burglary in Sacramento County" and sentenced to a term of imprisonment. Id.

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objecting to one paragraph concerning his criminal history,3

 Chesborough made no

other objections to the twenty-four paragraphs in the PSR, which detailed his lengthy

criminal history. See PSR ¶¶ 28–52. As noted previously, the probation officer did

not include many of those past offenses in Chesborough's criminal history calculation

because of the age of those offenses. We have previously held that "[c]onvictions

excluded from a defendant's criminal history score because of their age may be" the

basis for an upward departure. United States v. Andrews, 948 F.2d 448, 449 (8th Cir.

1991). The record before us demonstrates a high likelihood of recidivism, and we

conclude the District Court did not err in determining that Chesborough's criminalhistory score failed to reflect what has been his actual and continual criminal conduct

over many years. 

We also reject Chesborough's contention that the District Court impermissibly

ruled that his possession of six firearms amounted to six different felonies and that

an upward departure under § 5K2.21 cannot be justified on this ground.

Chesborough's base offense level and offense characteristic calculation was founded

on his possession of six firearms. In this case, the government charged him with only

one count of being a felon in possession of a firearm. But as the District Court

observed, each firearm Chesborough unlawfully possessed could have been charged

as a separate federal crime. Although this was not the primary basis for the upward

departure, we see no error in the District Court's reliance on the possession of

multiple firearms as some justification for an upward departure. See U.S.S.G.

§ 5K2.21.
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For the reasons stated, we find no error in the District Court's upward

departure. Chesborough's sentence is affirmed. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.