* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 13 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PEIRRI B. LEONARD, also known as Larry Smith, Defendant - Appellant. No. 01-6398 D.C. No. 01-CR-107-R (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before SEYMOUR , BALDOCK , and KELLY , Circuit Judges. **

Defendant-Appellant Peirri B. Leonard pleaded guilty to 20 counts of making, uttering, and possessing counterfeit securi ties in violation of 18 U.S.C. §513(a). At Mr. Leonard’s sentencing hearing, the district court found that the criminal history category assessed to Mr. Leonard d id not adequately reflect the- 2 -

seriousness of his past criminal conduct. Accordin gly, the district court departed upward one criminal history category and sentenced Mr. Leonard to a term of 57 months imprisonment. Mr. Leonard thereafter brought this appeal challenging the departure. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm. The presentence report (“PSR”) prepared following M r. Leonard’s guilty plea set his adjusted base offense level at sixteen . The PSR further assessed Mr. Leonard twelve criminal history points, yielding a criminal history category of five. Based on the foregoing, the PSR determined M r. Leonard’s sentencing range to be between 41-51 months. Although Mr. Leo nard had 18 prior adult convictions, at least half were not included in the PSR’s criminal history category computation. Six of these prior convictions were n ot counted due to their age.
See U.S.S.G. § 4A1.2(e)(3). Similarly, three prior co nvictions were not counted due to the four-point limit on counting one-point c onvictions contained in U.S.S.G § 4A1.1(c). The PSR further concluded that Mr. Leonard’s crimin al history category did not adequately reflect the seriousness of his past criminal conduct or the likelihood of recidivism and that an upward departu re from the applicable guideline range might therefore be warranted. Mr. Leonard objected to the factors cited in support of a departure, arguing th at the criminal history category1 Our review of the PSR indicates that only six convi ctions were

excluded from the criminal history computation due to their age. However, because the district court’s decision to depart did not hinge on the court’s belief that Mr. Leonard had eight rather than six such con victions, we find that the district court’s miscalculation at the sentencing h earing was harmless.

2 The PSR determined that Mr. Leonard had seven one-p oint convictions. Because of the four-point limitation, however, only four of these convictions were used in calculating Mr. Leonard’s criminal history category. - 3 - computation adequately considered all of his past c riminal conduct. Mr. Leonard did not object to the factual determinations contai ned in the PSR. At sentencing, the district court ruled that an upw ard departure from category five to category six was warranted. Adopt ing the factual findings and sentencing guideline application contained in the P SR, the court concluded that Mr. Leonard’s criminal history category did not ade quately reflect the seriousness of his past criminal history on two grounds. First , the court observed that several of Mr. Leonard’s prior convictions were not counteddue to age, stating that “if we just gave one point to each of those, that would be one, two, three, four, five , six, seven, eight–that would be eight additional po ints....” 1 Rec. Vol. 2 at 6. Second, the court noted that some of Mr. Leonard’s one-point convictions were not counted due to the four-point cap on one-point convictions contained in U.S.S.G. § 4A1.1(c). 2 In light of the foregoing, the court stated that: In any event, either of those would easily take the defendant into Category 6 as opposed to Category 5 and that is goi ng to be the basis of my departure. I think it would be up in the twe nties, point-wise, counting both the zeros and the ones, and under eit her theory he3 As noted above, the PSR assessed Mr. Leonard twelve criminal

history points based on his prior convictions. Sig nificantly, the assessment of a single additional point would have resulted in his assignment into criminal history category six. See United States Sentencing Commission, Guidelines Manual , Sentencing Table (Nov. 2000). - 4 - would go into a category 6, and certainly with both of them being considered, he’s in a Category 6, and if there was a Category 7, I would go to a Category 7. 3
Rec. Vol. 2 at 7. We review departures from the sentencing guidelines under a unitary abuse of discretion standard. See United States v. Hannah , 268 F.3d 937, 940 (10th Cir. 2001) (citations omitted). Moreover, in evaluating an upward departure for an abuse of discretion, we are guided by the principle that “[a] district court by definition abuses its discretion when it makes an e rror of law.” Koon v. United
States , 518 U.S. 81, 100 (1996). In determining whether a district court’s decision to depart constitutes an abuse of discreti on, we must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant fro m the applicable Guideline heartland thus warranting a departure; (3 ) whether the record sufficiently supports the factual basis unde rlying the departure; and (4) whether the degree of departure is reasonab le. United States v. Concha , 294 F.3d 1248, 1251 (10th Cir. 2002) (quoting United States v. Hannah , 268 F.3d 937, 940 (10th Cir. 2001)). Mr. Leonard argues that the district court abused i ts discretion both- 5 -

because his criminal history did not remove him fro m the applicable guideline heartland, and because the record does no t sufficiently support the factual basis for the court’s departure. Specifically, Mr. Leonard contends that in deciding to depart from the applicable guid eline range, the court erroneously relied on: (1) the six convictions not counted in the criminal history category computation due to their age (the “zero-point convictions”), and (2) the three convictions not counted due to th e four point cap imposed in U.S.S.G. § 4A1.1(c) (the “one-point convictions” ). Second, Mr. Leonard claims for the first time on appeal that the govern ment’s failure to plead and prove beyond a reasonable doubt certain factors that increased the applicable sentencing guideline range violated the principle recently articulated by the Supreme Court in Apprendi v. NewJersey , 530 U.S. 466 (2000). We first address Mr. Leonard’s contention that the district court abused its discretion in basing its decision to dep art on his three one-point convictions not counted due to the four-point cap o f U.S.S.G. § 4A1.1(c). Mr. Leonard specifically claims that the court shou ld not have taken the excess one-point convictions into account because at least four of his onepoint convictions were minor in nature, and thus wo uld not have received any points at all were it not for the lengths of th e sentences imposed. We- 6 -

find this argument without merit. Section 4A1.3(a) does not condition the considerati on of uncounted one-point convictions on a showing that such convic tions are more than minor, or “serious.” See , e.g. , United States v. Herr , 202 F.3d 1014, 1016 (8th Cir. 2000) (upholding district court’s upward departure based on defendant’s uncounted prior convictions, notwithstanding minor nature of several of the prior convictions). On the contrary , U.S.S.G. § 4A1.3(a) expressly permits district courts to consider “prio r sentence(s) not used in computing the criminal history category” in determi ning whether a departure is warranted. The guidelines, therefore, plainly c ontemplate that a defendant’s criminal history category may be increa sed based on the district court’s consideration of convictions not counted du e to the four point limitation of Section 4A1.1(c). Accordingly, we fi nd that the district court did not abuse its discretion in relying on the unco unted one-point convictions in deciding to depart from the applicab le guideline range. Mr. Leonard further argues that consideration of th ese convictions was improper because neither the guidelines nor the commentary creates an exception to the four-point cap on using one-point convictions in the criminal history category computation. We disagree . Although no express exception permits counting one-point convictions be yond the four-point- 7 -

limit, the absence of such an exception in no way r estricts the district court’s discretion to depart from an applicable gui deline range under U.S.S.G. § 4A1.3(a). We agree with the Fourth Circ uit, which has specifically held that although § 4A1.1(c) clearly limits the amount of onepoint convictions that can be used to arrive at the original criminal history category, the section “does not restrict a districtcourt’s ability to consider these convictions in departing upward under § 4A1.3 .” United States v. Wilson , 913 F.2d 136, 139 (4th Cir. 1990). We therefore conclude that the district court did not abuse its discretion by basi ng its decision to depart on Mr. Leonard’s uncounted one-point convictions. Mr. Leonard further argues that the district court abused its discretion by basing its departure decision in part on his pri or convictions not counted in the criminal history category computation due to their age. Specifically, Mr. Leonard claims that because the district court did not determine whether these convictions constituted evidence of “similar or serious dissimilar, criminal conduct,” U.S.S.G. § 4A1.2, comment (n.8), the district court “abused its discretion in finding that the zero-poi nt convictions were sufficient to remove Mr. Leonard’s case from the he artland of the guidelines....” Aplt. Br. at 14. Mr. Leonard correctly points out that convictions n ot considered in- 8 -

the criminal history category computation due to ag e may be considered in the departure determination only “if the court find s that a sentence imposed outside [the specified] time period is evidence of similar, or serious dissimilar, criminal conduct....” U.S.S.G. § 4A1.2, comment. (n.8). Moreover, the record reveals that neither the distr ict court nor the PSR adopted by the district court made any express find ings regarding either the similarity or seriousness of the zero-point convict ions. This court has held that a remand for further findings was necessary wh ere the district court relied exclusively on convictions more than 15 year s old as a basis for departure, without expressly determining whether th ose convictions were either similar or serious. See United States v. Gentry , 31 F.3d 1039, 1041 (10th Cir. 1994). Nevertheless, we hold that underthe framework for analyzing upward departures articulated by the Supr eme Court in Koon v. United States , 518, U.S. 81 (1996), we need not disturb the sent ence imposed by the district court in the current action

. In Koon , the Supreme Court held that where a district court’s departure from the sentencing guidelines is based o n both valid and invalid factors, “a remand is required unless [the reviewin g court] determines that the district court would have imposed the same sent ence absent reliance on the invalid factors.” Id. at 113 (citing Williams v. United States , 503 U.S.- 9 -

193, 203 (1992)). Consequently, even if none of th e uncounted zero-point convictions could reasonably be characterized as “s imilar” to the instant offense or “serious,” we would nonetheless hold that the district court did not abuse its discretion in deciding to depart upwa rd from the applicable guideline range. Unlike in Gentry , the district court in the instant case did not rely exclusively on the uncounted zero-point co nvictions in deciding that a departure was warranted. Referring to the zero-p oint and the one-point convictions, the district court stated that “[i]n a ny event, either of those would easily take the defendant into Category 6 as opposed to Category
5... under either theory he would go into a [C]ategory 6 ....” Rec. Vol. 2 at 7 (emphasis added). Furthermore, as the discussion above makes clear, the district court did not err in relying on Mr. Leonard’s uncounted o ne-point convictions as a basis for departing from the guideline range. Ther efore, the district court’s departure clearly rested on at least one permissibl e departure factor. We are satisfied that the district court would have impose d the same sentence even without considering Mr. Leonard’s uncounted older c onvictions. Mr. Leonard’s final claim on appeal is that various factors used in setting his base offense level that increased the applicable guideline range should have been pleaded and proved beyond a reason able doubt in light of- 10 -

Apprendi v. New Jersey . In evaluating this claim, we note first that Mr. Leonard raises this argument for the first time on appeal. Consequently, we review this claim under a plain error standard of r eview. See United States v. Avery , 295 F.3d 1158, 1181-1182 (10th Cir. 2002) (citati ons omitted). To prevail under this standard, Mr. Leonard must es tablish that there was “(1) an error; (2) that is plain or obvious; (3) [t hat] affects substantial rights; and (4) seriously affects the fairness, int egrity, or public reputation of the judicial proceedings.” United States v. Cern obyl , 255 F.3d 1215 (10th Cir. 2001) (internal quotations omitted). In Apprendi , the Supreme Court held that “other than the fact of a prior conviction, any fact that increases the penal ty for a crime beyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt.” Apprendi , 530 U.S. at 490. However, as recognized by Mr. Leonard, this court has repeatedl y held that the rule set forth in Apprendi does not apply to sentencing factors that increase the defendant’s guideline range, but do not result in asentence that exceeds the applicable statutory maximum for the offense at iss ue. See , e.g. United States v. Sullivan , 255 F.3d 1256, 1265 (10th Cir. 2001); United Stat es v. Monroe , 259 F.3d 1220, 1226 (10th Cir. 2001). The distri ct court sentenced Mr. Leonard to a term of imprisonment of four years and nine months.- 11 -

Under 18 U.S.C. § 513(a), the statutory maximum sentence for each offense to which Mr. Leonard pleaded guilty was ten years. We therefore reject Mr. Leonard’s argument that his sentence runs afoul of the rule announced in Apprendi

. AFFIRMED. Entered for the Court Paul J. Kelly, Jr. Circuit Judge