USCA1 Opinion
August 24, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1023
UNITED STATES,
Appellee,
v.
WESLEY F. MOTTRAM, SR.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Edward C. Roy and Roy & Cook on brief for appellant.
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Sheldon Whitehouse, United States Attorney, Margaret E. Curran
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and James H. Leavey, Assistant United States Attorneys, on brief for
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appellee.
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Per Curiam. Defendant-appellant Wesley Mottram
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pleaded guilty to a one-count indictment charging him with
passing a United States Treasury check with a forged
endorsement, in violation of 18 U.S.C. 510(a)(2). Imposing
sentence under the United States Sentencing Guidelines
("U.S.S.G."), the district court, departing upward from the
applicable guideline range, sentenced Mottram to an 18-month
prison term in a facility with a substance abuse program, a
3-year term of supervised release during which he must
participate in a substance abuse program, restitution in the
amount of $ 1,303, and an assessment of $ 50. Mottram
appeals from this sentence. We affirm.
Background
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The presentence investigation report ("the PSR")
recounted a long and extensive criminal history extending
from the 1960's through the instant offense. Neither Mottram
nor his counsel raised any objections to this account. Many
of these prior convictions, moreover, did not result in the
assignment of criminal history points against Mottram.
Thus, the PSR stated that an upward departure might be
warranted in view of the sheer number of prior convictions
and the "extreme likelihood" that Mottram would commit
further crimes.
There were two reasons why many of the prior
convictions did not produce criminal history points. For one
thing, convictions over ten years old that did not involve a
sentence of imprisonment exceeding one year and one month do
not result in criminal history points. U.S.S.G. 4A1.2(e).
A number of Mottram's convictions fell outside this time
limitation: six separate convictions for driving while
intoxicated, plus separate convictions for breaking and
entering, assault, possessing marijuana, and resisting arrest
and contempt of court.
Second, a prior conviction that resulted in a
sentence of less than 60 days' imprisonment adds one criminal
history point, but not to exceed a total of 4 criminal
history points for all such convictions. 4A1.1(c).
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Mottram, however, has had far more than four convictions in
this category. In fact, the PSR lists no fewer than twelve
separate convictions, all in 1991 or 1992, for which Mottram
received no criminal history points because all resulted in
sentences of less than 60 days' imprisonment (most resulted
in suspended sentences or probation). Almost all of these
convictions involved offenses of receiving stolen goods,
obtaining money under false pretences, or forgery and
counterfeiting.
The district court, following the recommendations
of the PSR, determined Mottram's total offense level to be 4
-3-
-- a base offense level of 6 under U.S.S.G. 2F1.1(b)(1)(A),
with a subtraction of 2 points for acceptance of
responsibility under 3E1.1. The district court assigned 14
criminal history points on the basis of Mottram's prior
convictions, and added 2 additional points under 4A1.1(d)
because Mottram was serving a suspended sentence on a 1990
state conviction for assault at the time he committed the
instant offense. This total of 16 criminal history points
placed Mottram in criminal history category VI. 5A. This
offense level of 4 and criminal history category of VI --
which Mottram does not challenge -- would produce a range of
imprisonment of 6 to 12 months. Id.
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Thus, even though many of his prior convictions did
not yield criminal history points, Mottram nonetheless was in
the highest criminal history category, VI. Adding additional
criminal history points could not have placed him in a higher
category.
The district court decided to depart upward from
this guideline range on the ground that the criminal history
category VI -- although the highest category -- did not
adequately reflect the seriousness of Mottram's past criminal
conduct or the likelihood of recidivism. The district court
explained the upward departure as follows: "I don't know how
many instances [prior convictions] there are here but I guess
they number 34. Thirty-four convictions. The last three
-4-
years it's been either cashing stolen checks or writing
checks on accounts that don't exist. . . . In light of the
number of offenses here, the persistent criminal conduct
which nothing seems to deter, it seems to me appropriate that
the offense level be increased by two to a level of six.
That's a guideline range of 12 to 18 months."
Mottram's counsel argued that there should be no
upward departure, and indeed that there should be a downward
departure, because Mottram has a persistent, episodic
drinking problem, and because most of Mottram's prior
offenses occurred during particular periods of excessive
drinking. Counsel further noted that most of Mottram's
offenses do not involve violence or a threat of violence.
The important thing, counsel urged, was to require Mottram to
obtain alchohol counselling.
In rejecting these arguments, the district court
remarked, "I have a lot of trouble figuring out how if your
drinking causes this problem that you can be doing things
like this while you're drinking. It seems to me it takes a
little bit of skill, a little bit of guile to be able to go
into a bank and cash a check and I doubt that, I don't know,
I suppose somebody would have difficulty if they were
intoxicated and doing that."
-5-
The Merits
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There is no dispute on appeal over whether the evidence
supports the departure-related findings of fact, see United
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States v. Rivera, 994 F.2d 942, 950 (1st Cir. 1993), or over
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the degree of departure, see id. The only issue in this case
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is whether the specific departure-related circumstances here
"are of a kind or degree that they may appropriately be
relied upon to justify departure." Id. (quoting United
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States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert.
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denied, 493 U.S. 862 (1989)).
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U.S.S.G. 4A1.3 states, "A departure under this
provision 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." This section goes on
to specifically discuss departures from criminal history
category VI:
"The Commission contemplates that there may,
on occasion, be a 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. In such
a case, a departure above the guideline range
for a defendant with Criminal History
Category VI may be warranted. In determining
whether an upward departure from Criminal
History Category VI is warranted, the court
should consider that the nature of the prior
offenses rather than simply their number is
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often more indicative of the seriousness of
the defendant's criminal record."
Mottram argues that although he may have had a lot
of prior convictions that did not contribute to his criminal
history points or category, these were all relatively minor
offenses that did not involve violence. In this situation,
according to Mottram, the Sentencing Commission has
discouraged departures by stating that "the court should
consider that the nature of the prior offenses rather than
simply their number is often more indicative of the
seriousness of the defendant's criminal record." 4A1.3.
The district court thus erred in relying solely on the sheer
number of prior convictions to justify an upward departure.
We find this argument unpersuasive. For one thing,
the Sentencing Commission's policy statement does not
preclude a sentencing judge from giving weight to the sheer
number of prior convictions, even though relatively non-
serious. The Commission has said that the nature of the
prior offenses "is often more indicative" (emphasis added)
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than their number. Obviously, this formulation leaves open
the possibility that nonetheless there may be situations in
which an upward departure might be appropriate because of the
sheer number of prior convictions.
In any event, the sentencing judge here plainly did
not rely solely on the sheer number of prior convictions.
The judge expressly noted the spate of recent convictions,
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most of them not resulting in any actual time in prison, for
offenses very similar to the instant offense, i.e., passing
stolen or forged checks. From this, as well as from
Mottram's long history of repeating other categories of
crimes, the district court concluded that the likelihood of
Mottram committing further offenses involving stolen or
forged checks was very high. Indeed, the district court
concluded that it was so high that placement in Criminal
History Category VI did not take adequate account of it.
We see no reason to disturb the district court's
eminently reasonable assessment. Section 4A1.3 of the
Sentencing Guidelines expressly states that an upward
departure "is warranted when the criminal history category
significantly under-represents . . . the likelihood that the
defendant will commit further crimes." We have made it
clear, moreover, that we will accord deference to a district
court's departure determination insofar as it reflects the
district court's sentencing experience, as opposed to the
"quintessentially legal interpretation of the words of a
guideline." Rivera, supra, 994 F.2d at 951. Accord United
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States v. Doe, 18 F.3d 41, 43-44 (1st Cir. 1994). The
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district court's ruling, premised as it was on the fact-based
judgment that Mottram's record posed an unusually high risk
of recidivism, easily passes muster under the governing
standard of review.
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The ruling of the district court is affirmed.
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