FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                   January 16, 2008
                                 TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 06-3241
          v.                                                D. Kan.
 MONTGOMERY CARL AKERS,                         (D.C. No. 04-CR-20089-KHV)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      After pleading guilty to one count of wire fraud, Montgomery Carl Akers

was sentenced to 327 months imprisonment, which constituted an upward

departure from the recommended guideline range of 140 to 175 months


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
imprisonment. He appeals from that sentence. We affirm.

                               I. BACKGROUND

A. Fraudulent Scheme Involving Jenkins

      While serving a 105-month sentence at the federal penitentiary in

Leavenworth, Kansas, for fourteen counts of bank fraud, one count of making,

uttering and possessing a counterfeit security, and one count of failure to appear,

Akers placed an advertisement for a pen pal in a magazine. Anita Jenkins

answered the ad and began corresponding with Akers in writing and on the

telephone. Akers convinced Jenkins he had been falsely accused, told her he had

a trust fund account and asked her to help him re-start a business he had prior to

his incarceration. Jenkins agreed to help him. Akers sent her a power of attorney

and had her purchase computer software which would allow her to create checks.

He also had her open accounts at Fidelity Brokerage Services (Fidelity) and First

Union Bank.

      After these accounts were opened, Akers directed Jenkins to create two

checks in the amounts of $35,000 and $25,000 and deposit them into the Fidelity

account. He provided her the routing and account numbers. She believed the

money was coming from his trust fund account. Akers then directed Jenkins to

wire $58,000 from the Fidelity account to the First Union Bank account. Jenkins

later created a third check for $35,000 and deposited it into the Fidelity account.

Jenkins also created checks or initiated wire transfers totaling $57,000 from the

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First Union Bank account to various individuals. Jenkins did not learn she was

creating worthless checks and engaging in fraudulent activity until she was

contacted by law enforcement officers. As a result of the above scheme, Fidelity

and Bank of America (which negotiates Fidelity’s financial transactions) suffered

actual losses of $22,236.77 and $20,000, respectively. Akers was subsequently

indicted with five counts of wire fraud.

B. Post-Indictment Conduct

        While the indictment was pending, Akers was housed at the Corrections

Corporation of America (CCA) in Leavenworth, Kansas, where he met fellow

inmate Donald Mixan. Akers told Mixan he was wealthy and showed him

paperwork indicating he had an account containing over $7 million. Although he

initially believed Akers, Mixan soon realized it was a scam. Nevertheless, Mixan

agreed to help Akers because it was “[e]asy money.” (R. Vol. IV at 150.) Once

Mixan was released, Akers had him purchase check-writing software and apply

for credit cards. Akers directed Mixan to use the credit cards for his living

expenses; the cards’ balances were paid from accounts which had no money in

them.

        Akers instructed Mixan to send two checks totaling $150,000 to an attorney

Akers wanted to retain. These checks were intercepted by law enforcement

officers. Because the attorney never received the checks, Mixan personally

delivered a third check for $100,000 to him. Two more checks, in the amounts of

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$25,000 and $2,700, were sent to Akers’s alleged wife and Mixan’s landlord,

respectively. All five checks were drawn on a U.S. Bank account that Mixan

opened for Akers over the Internet with a $400 counterfeit check. Mixan also

created a check for $2,500 using an account number he found in a dumpster. This

check was deposited, at Akers’s direction, into one of Akers’s bank accounts.

Akers further directed Mixan to create a $117,000 check and deposit it into

another one of Akers’s bank accounts. Fortunately, the banks involved in this

scheme were able to avoid incurring financial loss by freezing the accounts or

intercepting, dishonoring or returning the checks to the payee. However, the

scheme did result in an actual loss of $2,037.21 to various businesses.

C. Superseding Indictment and Plea

       The government filed a superseding indictment against Akers which, in

addition to the five counts of wire fraud alleged in the original indictment,

included a conspiracy to commit bank fraud count related to Akers’s activities

with Mixan, who was named as a co-defendant. Akers pled guilty to one count of

wire fraud. Pursuant to the plea agreement, the government agreed to recommend

Akers receive a two-level reduction for acceptance of responsibility and move for

an additional one-level reduction at sentencing if he continued to accept

responsibility and refrained from engaging in additional criminal conduct. While

the parties also agreed the amount of intended loss was not less than $242,000,

Akers understood the government planned to provide evidence at sentencing

                                         -4-
showing his relevant conduct involved an intended loss of over $1 million.

      A presentence investigation report (PSR) was prepared. Akers objected to

the PSR’s intended loss computation of $1,847,611.76 and its upward adjustment

for his leader/organizer role in the offense. He also claimed he was entitled to a

three-point downward adjustment for acceptance of responsibility.

D. Post-Plea Conduct

      While Akers was awaiting sentencing, he initiated yet another fraudulent

scheme. This time, he preyed on Tony Casanova, who suffers from multiple

sclerosis. Akers and Casanova became pen pals through Casanova’s church.

Casanova opened a bank account for Akers and applied for a credit card for him.

Akers also sent Casanova his telephone bills, promising to reimburse him. At

Akers’s direction, Casanova responded to a newspaper advertisement seeking

investors for a casino boat. The person who placed the advertisement referred

Akers to Nick Voulgaris. Akers convinced Voulgaris he was wrongly convicted

and was wealthy. Although the casino deal fell through, Akers succeeded in

recruiting Voulgaris to help him start a business. At Akers’s direction, Voulgaris

created various checks totaling over $1 million and expended numerous hours on

starting the business. Voulgaris also spent over $8,000 of his own money. In the

end, Casanova’s son contacted law enforcement personnel, who pulled the plug on

Akers’s scam.

      This did not stop Akers, however. He proceeded to dupe Cheryl

                                        -5-
Navarrette, a former cellmate’s daughter. Based on Akers’s promise of

employment and financial security, Navarrette purchased check-writing software

and her husband quit his job. Fortunately, Navarrette could not get the software

to work and no fraudulent checks were produced. However, Navarrette and her

family suffered financially.

E. Sentencing

      After providing the parties notice of its intent to depart upward, the court

held a two-day evidentiary hearing on Akers’s objections to the PSR. At the

hearing, Jenkins, Mixan and Voulgaris testified concerning their involvement with

Akers. The government also played the prison-recorded telephone conversations

between these individuals and Akers. After hearing these individuals’ testimony,

the court directed that the PSR be revised to include an upward adjustment based

on the offense involving the exploitation of vulnerable victims.

      The revised PSR calculated Akers’s base offense level as 6 under USSG

§2F1.1(a). 1 Because the intended loss was more than $1.5 million but less than

$2.5 million, the base offense level was increased by 12. See USSG

§2F1.1(b)(1)(M), (N). The PRS also applied (1) a 2-level enhancement because

the offense involved a scheme to defraud more than one victim (USSG

§2F1.1(b)(2)(B)), (2) a 2-level enhancement because the offense involved the use

      1
         Akers was sentenced pursuant to the 1998 edition of the United States
Sentencing Commission Guidelines Manual. All citations to the guidelines herein
refer to the 1998 guidelines unless otherwise indicated.

                                        -6-
of sophisticated means (USSG §2F1.1(b)(5)(C)), (3) a 2-level upward adjustment

because Akers exploited the vulnerability of his victims (USSG §3A1.1(b)(1)) and

(4) a 4-level upward adjustment based on Akers’s leader/organizer role in the

offense (USSG §3B1.1(a)). It declined to provide Akers an adjustment for

acceptance of responsibility due to his continued criminal conduct after his guilty

plea. Based on these enhancements and adjustments, the total offense level was

28. The PSR assigned Akers 30 criminal history points for his prior convictions

and the fact he committed the current offenses while serving another sentence,

resulting in a Criminal History Category of VI. With a total offense level of 28

and a Criminal History Category of VI, the advisory guideline range was 140 to

175 months imprisonment. The PSR noted, however, that Akers’s criminal

history score was more than twice the number of points needed to place him in

Criminal History Category VI (13 points) and that he had continued his criminal

behavior even after its discovery by law enforcement officers. Based on these

facts, the PSR stated the court could conclude a sentence outside the guideline

range was warranted.

      At Akers’s final sentencing hearing, the court overruled Akers’s objections

to the PSR and adopted the PSR’s guideline calculations. It also found an upward

departure was warranted under USSG §4A1.3 because Akers’s Criminal History

Category of VI inadequately reflected the seriousness of his criminal history and

the likelihood he would commit future crimes. It determined Akers had 17 more

                                         -7-
criminal history points than was necessary to place him in Criminal History

Category VI and these additional points would hypothetically qualify him to move

up an additional 6 criminal history categories were they available. Therefore,

utilizing the procedure suggested in USSG §4A1.3, the court determined it could

approximate the same increase by moving up 6 offense levels to 34, which, with a

Criminal History Category of VI, resulted in a guideline range of 262 to 327

months imprisonment. Believing that a sentence at the top of the range was

appropriate, the court sentenced Akers to 327 months imprisonment. 2

                                II. DISCUSSION

      Relying on United States v. Cage, 

(10th Cir. 2006), and

United States v. Bishop, 

(10th Cir. 2006), cert. denied, 

(2007), Akers claims the court’s upward departure, which constituted an

87% increase over the top of the recommended guideline range (175 months) and

a 107% increase over the bottom of the recommended guideline range (140

months), was “extraordinary” and therefore was required to be supported by

“extraordinary circumstances.” (Appellant’s Br. at 13 (quotations omitted).)

Akers contends his criminal history is not extraordinary in light of the nature of


      2
        “[A]ppalled[,] disappointed and outraged” with the Department of
Justice’s failure to prevent Akers from continuing his criminal conduct while
incarcerated, the court recommended: (1) Akers be placed in segregated
confinement, (2) he not be allowed to receive or send any mail except to his
counsel of record, (3) all of his correspondence be scrutinized to ensure its
legality and (4) he not have any telephone privileges. (R. Vol. III at 53.)

                                         -8-
his prior offenses. He asserts his sentence is unreasonable because the departure

does not pass muster under the guidelines.

       Aside from the fact Cage and Bishop are variance not departure cases, 3 they

have been overruled by Gall v. United States, which specifically rejected “an

appellate rule that requires ‘extraordinary’ circumstances to justify a sentence

outside the Guidelines range” or an appellate court’s “use of a rigid mathematical

formula that uses the percentage of a departure as the standard for determining the

strength of the justifications required for a specific sentence.” – U.S.–, 

, 595 (2007). Rather, the Gall Court clarified that the reasonableness standard

of appellate review it adopted in United States v. Booker, 

, 260-62

(2005), is equivalent to the abuse of discretion standard and “courts of appeals

must review all sentences--whether inside, just outside, or significantly outside

the Guidelines range--under a deferential abuse-of-discretion standard.” 

       Akers does not challenge the substantive reasonableness of his sentence.

See Gall, – U.S. 

. His only complaint is that the court erred in

imposing an upward departure under USSG §4A1.3.


       3
        A variance occurs “[w]hen a court enhances or detracts from the
recommended range through application of § 3553(a) factors.” See United States
v. Atencio, 

, 1101 n.1 (10th Cir. 2007). This case involves a
departure, which occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” 

reviewing departures, we consider four factors: “(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 from the applicable Guideline heartland thus warranting a departure;

(3) whether the record sufficiently supports the factual basis underlying the

departure; and (4) whether the degree of departure is reasonable.” United States

v. Wolfe, 

, 1295 (10th Cir. 2006). Akers is essentially challenging

the second factor. Specifically, he claims an upward departure was not warranted

in this case because his prior offenses, although numerous, were not sufficiently

serious in nature to remove him from the heartland of Criminal History Category

VI.

      Section 4A1.3 of the guidelines provides that an upward departure may be

warranted upon a finding that the defendant’s criminal history category

significantly underrepresents the seriousness of his criminal history or the

likelihood he will commit other crimes. 4 It further states:

      4
          USSG §4A1.3 states in relevant part:

      If 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, the court may
      consider imposing a sentence departing from the otherwise applicable
      guideline range. Such information may include, but is not limited to,
      information concerning:

      (a) prior sentence(s) not used in computing the criminal history category
      (e.g., sentences for foreign and tribal offenses);

                                         -10-
       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 often more indicative of the seriousness
       of the defendant’s criminal record.

       In concluding an upward departure under USSG §4A1.3 was appropriate in

this case, the district court stated:

       It’s really extraordinary to see the same pattern of criminal behavior
       continue between the time of a guilty plea up until the very date of
       sentencing. And I agree with the government’s observation that we
       have no reason to believe that the defendant will discontinue his
       behavior so long as he stays successfully able to manipulate people
       to doing what he want[s]. I don’t think I’ve ever seen a more
       manipulative defendant, not only manipulative toward the Court, but
       towards other potential victims, even as the case is progressing . . . .

       Here . . . the defendant’s criminal history score’s twice the number of
       points which is necessary to place him in Category [VI] . . . .

       I do believe that the defendant has an egregious criminal record and
       an egregious history of continued criminal conduct during the


       (b) prior sentence(s) of substantially more than one year imposed as a
       result of independent crimes committed on different occasions;

       (c) prior similar misconduct established by a civil adjudication or by a
       failure to comply with an administrative order;

       (d) whether the defendant was pending trial or sentencing on another
       charge at the time of the instant offense;

       (e) prior similar adult criminal conduct not resulting in a criminal
       conviction.

                                          -11-
      pendency of this case. I believe that a criminal history category of
      [VI] is [in]adequate to reflect the seriousness of his criminal history
      and the [likelihood] he will commit further criminal offenses no
      matter what the Court imposes . . . .

(R. Vol. III at 29-30, 33.)

      The district court’s departure analysis is in accordance with the guidelines

departure analysis pre-Booker, -Rita and -Gall. We would easily affirm under

that more rigorous test. But we are left with a much more deferential standard –

abuse of discretion. The court did not abuse its discretion in determining Akers’s

extensive criminal history and the nature of his offenses warranted a significant

upward departure from the guideline range.

      As the PSR detailed, Akers has a long history of fraudulent activity,

beginning at the age of 17 when he wrote an insufficient funds check for $50.00

while in the United States Marine Corp. From there, his fraudulent behavior only

became more serious and sophisticated in nature. In 1977 and 1978, he was

convicted of using forged and fraudulent checks to purchase vehicles. In 1983, he

stole a truck which contained the owner’s credit cards and identification. Akers

then used the credit cards to purchase items totaling $3,000. Three years later

and less than five months after being paroled, Akers was arrested and later

convicted of using another individual’s credit card to make a down payment on a

motorcycle. A month after he was paroled on that conviction, he wrote three

worthless checks. Several months later, he deposited worthless checks totaling


                                         -12-
$236,440.33 into his private account and then withdrew funds in excess of

$76,000 from the account for personal use. He used the same scheme to obtain

more than $70,000 from another bank. He also wrote two checks totaling

$5,256.55 on a closed account as partial payment for a motorcycle. In 1995,

Akers was charged in federal court with bank fraud and making, uttering and

possessing a counterfeit security based on a scheme he facilitated through the

successful manipulation of various acquaintances, including his girlfriend. He

was sentenced to 105 months imprisonment, which was the sentence he was

serving at the time he committed the current offenses and which itself was the

result of an upward departure based on his extensive criminal record. 5 Not only is

Akers’s criminal history serious, it shows a clear pattern of recidivism. Indeed,

Akers continued his fraudulent activities even after pleading guilty in this case.

      Akers has no regard for the rights of others. In contrast, his sentence was

considered and imposed in a manner that fully respected his rights. The sentence

imposed was ultimately and exquisitely reasonable – just desserts for one who has

dedicated his life to victimizing others.




      5
        See United States v. Akers, 

, 1105-06 (10th Cir. 2000)
(affirming district court’s imposition of an upward departure based on Akers’s
exceptional criminal history).

                                            -13-
AFFIRMED.

                   ENTERED FOR THE COURT


                   Terrence L. O’Brien
                   Circuit Judge




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