United States v. Keesee

1995 WL 17148366 (3rd Cir.)

For opinion see 82 F.3d 407

United States Court of Appeals, Third Circuit.

UNITED STATES OF AMERICA,

Bobby Joe KEESEE, Appellant,

United States of America,

Bobby Joe Keesee, a/k/a James M. Murphy Appellant.

Nos. 95-5517, 95-5518.

November 21, 1995.

Consolidated Appeals from the Final Judgment of Sentence of the United States District Court for the District of New Jersey. Sat Below: Honorable Joseph E. Irenas, U.S.D.J.

Brief for Appellee

On the Brief: George S. Leone, Assistant United States Attorney, Cohen Federal Courthouse, One Gerry Plaza, Fourth & Cooper Streets, Camden, New Jersey 08101, (609) 968-4930

Faith S. Hochberg, United States Attorney, Attorney for Appellee, 970 Broad Street, Newark, New Jersey 07102, (201) 645-2755

*i TABLE OF CONTENTS

Table of Authorities ... ii

Jurisdictional Statement ... 1

Statement Of Related Cases And Proceedings ... 1

Statement Of The Issue And The Standards Of Review ... 1

Statement Of The Case ... 2

A. Procedural History ... 2

B. Statement of the Facts ... 3

Summary Of Argument ... 9

ARGUMENT

THE DISTRICT COURT PROPERLY DEPARTED UPWARD TO A SENTENCE OF 57 MONTHS, BASED ON DEFENDANT'S 30-YEAR PATTERN OF SIMILAR AND SERIOUS CRIMES AND THE EXTREME LIKELIHOOD OF RECIDIVISM ... 10

Conclusion ... 21

*ii TABLE OF AUTHORITIES

Cases Cited

United States v. Bennett, 975 F.2d 305 (6th Cir. 1992) ... 14

United States v. Brown, 51 F.3d 233 (11th Cir. 1995) ... 16, 18

United States v. Carey, 898 F.2d 642 (8th Cir. 1990) ... 14

United States v. Fields, 923 F.2d 358 (5th Cir.), cert. denied, 500 U.S. 937 (1991) ... 14

United States v. Gardner, 905 F.2d 1432 (10th Cir.), cert. denied, 498 U.S. 875 (1990) ... 16

United States v. Harris, 44 F.3d 1206 (3d Cir.), cert. denied, 115 S. Ct. 1806 (1995) ... 19, 20

United States v. Hickman, 991 F.2d 1110 (3d Cir. 1993) ... 18, 19

United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990) ... 2, 14, 20

United States v. Mayo, 14 F.3d 128 (2d Cir. 1994) ... 17

United States v. Nomeland, 7 F.3d 744 (8th Cir. 1993) ... 16

United States v. Panadero, 7 F.3d 691 (7th Cir. 1993) ... 14

United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994) ... 16

United States v. Shoupe, 988 F.2d 440 (3d Cir. 1993) ... 9, 14, 15

United States v. Starr, 971 F.2d 357 (9th Cir. 1992) ... 16, 17

United States v. Thomas, 961 F.2d 1110 (3d Cir. 1992) ... 15, 18

*iii United States v. Thomas, 6 F.3d 960 (2d Cir. 1993) ... 16

United States v. Young, 66 F.3d 830 (7th Cir. 1995) ... 16

Williams v. United States, 503 U.S. 193 (1992) ... 16, 18

Statutes, Rules and Guidelines Cited:

18 U.S.C. § 2 ... 2

18 U.S.C. § 641 ... 17

18 U.S.C. § 912 ... 2

18 U.S.C. § 1028 ... 2

18 U.S.C. § 1542 ... 2

18 U.S.C. § 2314 ... 2

18 U.S.C. § 3231 ... 1

18 U.S.C. § 3553 ... 9, 14, 15

18 U.S.C. § 3742 ... 1

Fed. R. Crim. P. 20 ... 2

U.S.S.G. § 4A1.2 ... 9, 15, 16, 18

U.S.S.G. § 4A1.3 ... 9, 10, 12, 13, 14, 15, 16, 18, 19

U.S.S.G. § 5K2.0 ... 14, 15

U.S.S.G. Amendment 472 ... 18

*1 JURI8DICTIONAL STATEMENT

These consolidated appeals are from the judgment of sentence, entered in the United States District Court for the District of New Jersey, for offenses against the laws of the United States. The district court had subject matter jurisdiction under 18 U.S.C. § 3231. Defendant has filed appeals challenging his sentence only. This Court has jurisdiction pursuant to 18 U.S.C. § 3742(a)(3).

STATEMENT OF RELATED CASES AND PROCEEDINGS

Defendant is awaiting trial for other charges of impersonation of a government official, wire fraud, and false statements in the Central District of California (Cr. No. 94-1048). The United States is not aware of any other related cases or proceedings, whether completed, pending or about to be presented, in this Court or any other court or agency.

STATEMENT OF THE ISSUE AND THE STANDARDS OF REVIEW

Did the district court properly depart upward to a sentence of 57 months, based on defendant's 30-year pattern of similar and serious crimes and the extreme likelihood of recidivism?

Standard of Review; The district court's findings of fact must be accepted unless they are clearly erroneous, and due deference must be given to the district court's application of the guidelines to the facts. 18 U.S.C. § 3742(e). Review of whether an upward departure is based on a proper factor is plenary. The district court has substantial discretion, however, *2 plenary. The district court has substantial discretion, however, in determining the extent of any departure; review is for abuse of discretion. United States v. Kikumura, 918 F.2d 1084, 1098, 1110 (3d Cir. 1990).

STATEMENT OF THE CASE

A. Procedural History

Defendant, working for Colombian drug dealers but pretending to be a United States Embassy official, tricked a New Jersey company into delivering to him in Mexico a half-million-dollar aircraft. After fraudulently obtaining the aircraft, defendant made his escape to Germany using phony drivers licenses to obtain passports. After his apprehension, defendant was charged in the District of New Jersey with impersonating an official of the United States, and committing an interstate fraud, in violation of 18 U.S.C. §§ 2, 912 and 2314 (Grim. No. 94-535). In the District of Columbia, defendant was charged with three counts of possessing false identification documents with the intent to defraud the United States, and three counts of making false statements in applications for passports, in violation of 18 U.S.C. §§ 1028(a)(4) and 1542 (Crim. No. 94-288). Pursuant to Fed. R. Crim. P. 20, defendant pled guilty to all the above charges in the District of New Jersey. He was sentenced by the Honorable Joseph R. Irenas to 57 months imprisonment. Challenging his sentence only, defendant filed appeals which were ordered consolidated by this Court on October 20, 1995.

*3 B. Statement of the Facts

The facts concerning the instant crimes, and defendant's history of prior offenses, are as follows.

Defendant's Latest Crimes

Based on discussions initiated while defendant was in prison, defendant was paid by Colombian drug traffickers to procure a "good-sized" aircraft to transport drugs out of Colombian airstrips. Accordingly, on January 8, 1993, defendant telephoned Newcal Aviation Inc., a Little Ferry, New Jersey company engaged in the refurbishing and selling of aircraft. Defendant represented himself to be James M. Murphy, a government official at the U.S. Embassy in Mexico city, Mexico. Defendant requested information about a DeHavilland DHC-4A Caribou, a twin-engined cargo aircraft with short takeoff and landing capability. Defendant claimed that the aircraft was needed for operations in Guatemala and Panama. After having the information faxed to him in Mexico, defendant asked for an additional fuel tank to be added for extended flight, and negotiated a total price of $478,000. He then faxed NewCal a federal "Optional Form 347 - Order For Supplies or Services," purportedly issued by the "United States of America, State Department/Consulate Service (Mexico)," and purportedly signed by "Mary L. Berman, Contracting/Ordering Officer." P.S.R. ¶¶ 17-18, 22-23, 30; A 5-6, 49-52, 55-60, 63, 76-78. [FN1]

FN1. "A" refers to the Appendix supplied by the defendant; "P.S.R." to the Presentence Report filed with this Court.

*4 Based on defendant's representations, on January 23, 1993, representatives of NewCal flew to Florida where the Caribou was stored, flew the Caribou to Arizona, and there had the extra fuel tank added. Then, pursuant to defendant's instructions, they flew the Caribou to Hermosillo, Mexico, and then to an airfield outside of Mexico City. There defendant met them, again representing himself as James M. Murphy, an "agent" of the State Department. Defendant claimed that the Caribou was needed by the U.S. Army Special Forces to replace an aircraft lost in an unspecified mission. He required the NewCal representatives to sign affidavits stating that the information concerning the sale was classified. Using the name of "James M. Murphy, A.I.c.," which he said meant "Agent-In-Charge," defendant then signed the Optional Form 347 purchase order, accepted the bill of sale, and took delivery of the Caribou. P.S.R. ¶¶ 19-20, 22 & p.30; A 6-8, 51.

Thereafter, NewCal sought payment for the Caribou from the United States Government, but learned that no "James M. Murphy" or "Mary L. Herman" worked for the State Department. The Caribou was subsequently found at a remote Mexican airfield, having been flown for approximately 30 hours. P.S.R. ¶¶ 18, 21, 27; A 8.

Meanwhile, defendant, who had agreed to use the Caribou to transport drugs and train Colombian pilots to do so, decided to get out of the drug operation and left for Europe. On March 8, 1993, at the American Embassy in Rome, Italy, defendant applied for a U.S. passport, representing himself as "John Willis *5 Vanpool" and presenting a bogus California drivers license in that name. On March 23, 1993, at the American Consulate in Amsterdam, Netherlands, he applied for another passport, saying he was "Robert William Garwood" and presenting a false California drivers license in that name. On April 7, 1993, at the American Consulate at Milan, Italy, defendant applied for yet another passport, claiming to be "Robert Brice McKeller" and presenting a fraudulent Washington State drivers license in that name. P.S.R. ¶¶ 5-10, 23, 31-32; A 10- 13.

Defendant went to Germany. There, under the name. "John Willis Vanpool," he got a job as an accounting clerk on a United States Air Force base. Defendant then prepared a letter to a foreign government offering to sell it nuclear warheads. He also used his false name to pass numerous bad checks to finance a return to Mexico. P.S.R. ¶¶ 62, 88, 96; A 88, 99-100.

On June 3, 1994, the U.S. Consulate in Frankfurt, Germany, received a tip that defendant was in Germany and was leaving for Mexico. Defendant was found at his residence with equipment to fabricate false identification papers and with many false IDs, including two of the false passports. Defendant initially lied about procuring the Caribou from NewCal, but later admitted deceiving NewCal into believing that he was an American Embassy Official so that he could get the aircraft for Colombian drug dealers. P.S.R. ¶¶ 22-23, 25-26; A 99-100.

*6 Defendant's Criminal History

The instant crimes are only the latest in defendant's long history of aircraft misappropriations, impersonations of government officials, and other serious offenses. In March 1962, after going AWOL (absent without leave) from the U.S. Army and being declared a deserter, defendant passed a number of bad checks at several federal installations, and stole a rental car. He then rented, and subsequently stole, a Comanche aircraft. He flew the aircraft from New Mexico to Florida and thence to Havana, Cuba, where he sought asylum. He was expelled, from Cuba, arrested in Miami, and convicted of interstate transportation of a stolen aircraft and a stolen motor vehicle. P.S.R. ¶¶ 64-65.

Defendant was paroled in January 1965. In September 1965, defendant was arrested for stealing parachutes from Fort Bliss, Texas. He was convicted of stealing U.S. Government property. P.S.R. ¶¶ 65-66.

Defendant was paroled in September 1968. Upon completion of his parole supervision in 1970, defendant learned that a man named Buddy Carsons, whom defendant blamed for his 1962 crimes, was in Thailand. Defendant went to Thailand and got his "satisfaction" with Carsons. He then hired a plane and pilots from a Thai charter service on the pretense of scouting remote movie locations, hijacked the plane, and flew to North Vietnam. On landing there, however, defendant was imprisoned. P.S.R. ¶¶ 66-67, 83-85.

*7 Defendant was released by North Vietnam when that country released American prisoners of war, on March 14, 1973. He was then hospitalized. In January 1974, defendant went with a co-conspirator to Hermosillo, Mexico, to kidnap a U.S. consular official named John Patterson, take him to a remote spot, and hold him for ransom. After finding that Patterson was not there in January, defendant tried again in March, armed with a shotgun and a.32 caliber handgun. After conversing in the consulate, defendant and Patterson left together. Patterson was taken to a remote spot and forced to prepare ransom note, which was sent to the consulate. He was then marched into the desert, where a struggle occurred, and Patterson's skull was fatally smashed. After pawning the shotgun and a.32 caliber handgun, defendant made a call, and sent a letter, demanding an initial ransom payment of $250,000. At the time of his arrest, defendant was carrying shells that had been chambered in the shotgun, and handcuffs bearing traces of human protein. Defendant was convicted of conspiracy to kidnap a U.S. Consular official, and sentenced to 20 years in prison. P.S.R. ¶¶ 67-68, 85, 87.

After working as a prison metalworker and as a clerk in the prison industries business office, defendant was paroled on January 13, 1986. On January 28, 1986, defendant set up a post office box in the name of "James A. McBride;" he then arranged for an answering service under the name "Naval Support Activity." Using those names, he contacted Cambridge Lee Industries, claiming to be a Navy contractor with a possible government *8 subcontract for copper. He sent Cambridge Lee Industries a GSA Standard Form 33 bid package. Defendant later told Cambridge Lee Industries that it had been awarded the subcontract, and instructed it to ship $634,000 worth of copper to Naval Support Activity. Cambridge Lee Industries shipped nine of ten shipments to defendant before he was picked up on a parole violation, just before he was to fly himself to Europe. Defendant was convicted of mail and wire fraud. P.S.R. ¶¶ 68-73.

Defendant was paroled to a community treatment center on October 23, 1992. He promptly absconded. In November. 1992, defendant apparently commenced a fraudulent scheme in which he pretended to be the agent in charge of the Long Beach, California, office of the Federal Emergency Management Agency (FEMA). On the pretense of providing relief after the Los Angeles riots, he secured temporary office quarters. Then, using government purchase orders, he obtained over $70,000 worth of goods and services, including a fax machine, flight training, and flight charts for Latin America. He also began negotiations for purchasing a $1,500,000 airplane. Defendant then vanished, in January 1993. He went to Mexico, where he immediately began carrying out the plan he had hatched in prison to procure an aircraft for Colombian drug dealers. P.S.R. ¶¶ 69, 74, 78-79, 88. [FN2]

FN2. In December 1993, an arrest warrant was issued relating to defendant's FEMA fraud, and he is now awaiting trial on a 22-count

indictment in the Central District of California. P.S.R. ¶ 78.

*9 SUMMARY OF ARGUMENT

Defendant has a thirty-year history of serious crime, culminating in his theft of this $478,000 aircraft. Nonetheless, defendant challenges the district court's decision to depart upward to a 57 month sentence. Contrary to defendant's claims, the court properly found that the Guidelines' criminal history category significantly under-represented the seriousness of his criminal history and the likelihood that he would commit future crimes, because it failed to include his prior crimes of stealing an aircraft in 1962 and stealing parachutes in 1965, and because it did not take into account defendant's well-established pattern of committing new crimes shortly after release from prison.

Defendant does not dispute the district court's finding of his extremely high likelihood of recidivism. His claim that 18 U.S.C. § 3553(b) forbids such departures under U.S.S.G. § 4A1.3 was rejected by this Court in Shoupe. Further, §§ 4A1.2 and 4A1.3 of the Guidelines expressly authorize departure based on older convictions provided they are either similar or serious, and the district court properly found they were both.

Defendant also claims that the district court failed to follow § 4A1.3's instructions for calculating the extent of departure. To the contrary, in departing from Criminal History Category IV, the court specifically found that Category V did not adequately reflect defendant's criminal history and likelihood of recidivism. It then correctly applied Category VI, which fully reflected those concerns and accurately counted his older crimes.

*10 ARGUMENT

THE DISTRICT COURT PROPERLY DEPARTED UPWARD TO A SENTENCE OF 57 MONTHS, BASED ON DEFENDANT'S 30-YEAR PATTERN OF SIMILAR AND SERIOUS CRIMES AND THE EXTREME LIKELIHOOD OF RECIDIVISM.

Defendant attacks the district court's decision to sentence him to 57 months imprisonment. In fact, examination of the sentencing record shows that the district court's decision to depart upward under U.S.S.G. § 4A1.3 was entirely proper.

In this case, the Probation Office assessed 3 criminal history points for defendant's conviction for conspiracy to kidnap the consular official in Mexico, and 3 points for his mail and wire fraud convictions for pretending to be a government contractor, but assessed no points for his other convictions. When added to the 3 points assessed for committing the instant offenses while on parole and within two years after his release from prison, defendant received 9 criminal history points, resulting in Criminal History Category of IV. Given defendant's undisputed Total Offense Level of 16, this resulted in a guidelines range of 33-41 months. P.S.R. ¶¶ 61, 64-69, 76-77, 112.

The Probation Office noted, however, that "the nature and extent of the defendant's prior record may be indicative of an extraordinarily high risk of recidivism, the degree of which may be under-represented in the otherwise applicable Criminal History Category IV." P.S.R. ¶ 125. In such circumstances, the Probation Office noted, an upward departure may be warranted under U.S.S.G. § 4A1.3, which states in pertinent part:

*11 § 4A1.3. Adequacy of Criminal History category

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

* * *

A departure under this provision is warranted when the criminal category significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit future crimes.

At sentencing, the district court considered whether such an upward departure was warranted. [FN3] At defendant's request, the court disregarded certain portions of defendant's criminal history. [FN4] Even so, the court said it could "hardly imagine" *12 anyone who could be more aptly "classified as a career criminal." A 103, 79, 84, 106-07. The court emphasized that "for over a thirty year period[,] starting in 1961 when he goes AWOL," defendant engaged "in a continuous crime spree." A 103-06, 107. As a result, the court noted, "from about 1962 onward [he has] rarely been out of custody," yet "almost as soon as [he is] released, he gets ready to commit another crime." A 78-79, 83, 87, 104.

FN3. The district court first inquired of defendant if he had received adequate notice of the possibility of an upward departure. Defendant through counsel said that he had received adequate notice. A 39-41. The government took no position on upward departure, not because of "the merits of the idea," but because it had agreed with defense counsel not to take a position on upward departure in certain circumstances. A 98-99.

FN4. The court ruled that it would not considered what happened to Buddy Carsons when defendant got his "satisfaction," A 92-93, 104; that it would set aside whether defendant "hijacked" the Thai aircraft into North

Vietnam, A 35-36, 105; and that it would rely only on defendant's conviction of conspiracy to kidnap and the facts that the kidnapping took place and the victim died, without considering defendant's role in the actual kidnapping and death, A 36-39. The court also did not consider defendant's FEMA fraud in California, for which charges were pending, or his letter offering to sell nuclear warheads. A 88, 101-02. Finally, the court did not treat defendant's 1962 conviction for auto theft as a separate crime, but as part of the same scheme as his 1962 conviction for stealing an aircraft. A 107.

The district court pointed out that defendant had "prior sentence(s) not used in computing the criminal history category," U.S.S.G. § 4A1.3(a), namely, his 1962 conviction for stealing an aircraft and his 1965 conviction for stealing parachutes. A 107, 79-80. The court found that these were "not only both very serious crimes, but crimes of a very similar nature" to defendant's misappropriation of an aircraft in this case. A 107-08, 79-80. The court noted that if these crimes had been counted, defendant would have received five additional criminal history points, placing him in Criminal History Category VI. A 108-09. [FN5]

FN5. The district court also found that defendant had "prior similar adult

criminal conduct not resulting in a criminal conviction," U.S.S.G. § 4A1.3(e), namely, his issuance of thirty-three bad checks in Germany. A 109, 80, 88. The court concluded that this was "just part, once again, of this continuous criminal conduct." A 109.

Further, the district court emphasized "the likelihood that the defendant will commit future crimes," U.S.S.G. § 4A1.3. *13 Examining defendant's history, the court found "with almost absolute certainty if let out he will commit another crime." A 79; see A 113. The court found that "[n]othing has deterred" defendant, and that "[t]here is nothing in this file" which suggested that rehabilitation was possible. A 106, 84-86, 110-11. Indeed, the court stated:

I don't think I have seen a file where [there is such a] lack [of] the possibility of redemption, where... there is such a long consistent continuous criminal history totally undeterred by anything the criminal justice system can throw at him.

A 110. The court indicated that defendant was "dangerous" and that a longer period of incarceration was necessary to disable him "from doing it again." A 111.

Considering" all these factors, the district court decided that an upward departure from Criminal History Category IV was necessary. A 109-10. Following the instructions for upward departure given in § 4A1.3, the district court examined each of the criminal history categories higher than Category IV:

I have considered first whether [category] five would be adequate. But once again I do not believe that anything less than the maximum here fully reflects 30-32 years of basically continuous criminal conduct [which] the severe parole didn't stop. Prison sentences don't stop him. Apparently nothing stops him.

So I have considered first whether five would be appropriate. I think it is not. And then six I think is appropriate.

A 108-09. The court therefore decided to "upwardly depart to a category six criminal history," which resulted in a guidelines range of 46-57 months. A 109- 11.

*14 Defendant does not contend that the district court's findings of fact, such as the extreme likelihood he will recidivate, are clearly erroneous. See United States v. Kikumura, 918 F.2d 1084, 1115 n.37 (3d Cir. 1990). This finding, based on defendant's established pattern of reoffending shortly after being released, is itself grounds for upward departure. United States v. Panadero, 7 F.3d 691, 697 (7th Cir. 1993) (district court's finding that defendant's criminal history category fails to reflect his likelihood of recidivism is grounds for departure). [FN6] Nonetheless, defendant now makes several-, challenges to the district court's upward departure, all of them meritless.

FN6. Accord United States v. Bennett, 975 F.2d 305, 309 (6th Cir. 1992); United States v. Fields, 923 F.2d 358, 361-62 (5th Cir.), cert. denied, 500 U.S. 937 (1991); United States v. Carey, 898 F.2d 642, 645-46 (8th Cir. 1990).

Defendant first contends that a departure under U.S.S.G. § 4A1.3 is forbidden by 18 U.S.C. § 3553(b) unless "the court finds that there exists an aggravating or a mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b). This Court, however, has held that this limitation, imposed by § 3553(b) on departures under U.S.S.G. § 5K2.0, is inapplicable to departures under § 4A1.3. United States v. Shoupe, 988 F.2d 440, 442-47 & n.7 (3d Cir. 1993). This Court ruled:

We disagree with the district court's conclusion that § 4A1.3 is limited by 18 U.S.C. § 3553(b) and § 5K2.0. The criminal history category departure under § 4A1.3 is specifically provided for in the Guidelines *15 and is, in our view, conceptually distinct from the provision in § 5K2.0 for departures based on factors not accounted for in the Guidelines. We therefore conclude that 18 U.S.C. § 3553(b) and § 5K2.o have no bearing on § 4A1.3.

United states v. shoupe, 988 F.2d at 442. This Court accordingly held that "a district court considering a § 4A1.3 departure may weigh... factors which the Commission may have otherwise considered in promulgating other provisions of the Guidelines." 988 F.2d at 447. Defendant's claim is thus meritless. [FN7]

FN7. Shoupe not only rejected the claim that § 3553(b) applies, but it also foreclosed defendant's attempt to draw any such principle from United States v. Thomas, 961 F.2d 1110 (3d Cir. 1992). This Court stated in Shoupe:

We recognize... that prior decisions in this circuit may have suggested, without actually deciding, that § 4A1.3 departures may be limited by the requirements of 18 U.S.C. § 3553(b). See, e.g., United States v. Thomas, 961 F.2d 1110 (3d Cir. 1992). However, these cases did not face the issue we face here, and the courts therefore had no occasion to analyze the relevant provisions. Hence their pronouncements are non-binding.

United States v. Shoupe, 988 F.2d at 446 n.9.

Defendant similarly contends that the district court could not consider his 1962 conviction for stealing an aircraft, or his 1965 conviction for stealing parachutes, because the guidelines already declined to take them into consideration due to their age. See U.S.S.G". § 4A1.2(e) (in calculating criminal history points, only a crime whose sentence was imposed or served "within fifteen years of the defendant's commencement of the instant offense is counted"). To the contrary, § 4A1.3(a) expressly allows district courts to depart based on "prior sentence(s) not *16 used in computing the criminal history category." U.S.S.G. § 4A1.3(a). Furthermore, as the Supreme Court has pointed out, Application Note 8 to § 4A1.2 "explicitly authorize[s] a district court to base a departure on outdated convictions." Williams v. United States. 503 U.S. 193, 205-06 (1992). Application Note 8 provides:

If the court finds that a sentence imposed outside this time period is evidence of a similar, or serious dissimilar, criminal conduct, the court may consider this information in determining whether an upward departure is warranted under § 4A1.3 (Adequacy of Criminal History Category).

U.S.S.G. § 4A1.2 Application Note 8. It is thus perfectly appropriate to base a § 4A1.3 departure on similar or serious convictions not counted due to age. United States v. Young. 66 F.3d 830, 838 (7th Cir. 1995). [FN8]

FN8. Accord United States v. Brown, 51 F.3d 233, 234 (11th Cir. 1995); United States v. Schultz, 14 F.3d 1093, 1101 (6th Cir. 1994); United States v. Nomeland, 7 F.3d 744, 747 (8th Cir. 1993); United States v. Thomas, 6 F.3d 960, 964 (2d Cir. 1993); United States v. Starr, 971 F.2d

357, 361-62 (9th Cir. 1992). See, e.g., United States v. Gardner, 905 F.2d 1432, 1433-35 (10th Cir.), cert. denied, 498 U.S. 875 (1990) (departing upward based on 1951 and 1961 crimes).

Contrary to defendant's suggestion (Appellant's Brief at 17), the district court was plainly aware of Application Note 8. See A 107-08 (district court states that to count early convictions, "[f]irst, the crimes ought to be similar in some fashion to the current crime and other criminal activity and, secondly, ought to be serious"). Indeed, the court applied this provision, and found that defendant's 1962 and 1965 convictions were both serious and "very similar." A 108.

*17 Defendant admits that his 1962 conviction for stealing an aircraft "was arguably for conduct similar to that undertaken in this case," but contends that it does not distinguish his criminal history from other defendants whose early convictions are not counted (Appellant's Brief at 17). It is absurd, however, for defendant to claim that his sustained penchant for aircraft theft was not "so unusual or unique" to justify departure (Appellant's Brief at 19). The district court properly found that consideration of defendant's prior "purloining of an aircraft" in 1962 was necessary to represent both the seriousness of defendant's prior criminal history and his likelihood of recidivism. A 107-08, 79-80; see A 112-13.

Defendant claims that his 1965 conviction for stealing parachutes from Fort Bliss was not similar criminal conduct. To the contrary, this theft of aircraft equipment was obviously related to defendant's predilection to steal and use aircraft. See United States v. Mavo, 14 F.3d 128, 131-32 (2d Cir. 1994) (all that is required is that the offenses be similar); United States v. Starr, 971 F.2d 357, 361-62 (9th Cir. 1992) (possession of stolen property is similar to bank robbery), [FN9] In any case, as the district court found, the crime for which defendant was convicted in 1965 was "serious," A 108; indeed, it carries a ten year maximum penalty, 18 U.S.C. § 641; P.S.R. ¶ 66. Because it was a "serious" crime, defendant's 1965 offense would be a proper *18 basis for departure even if it were "dissimilar." U.S.S.G. § 4A1.2 Application Note 8; [FN10] United States v. Brown, 51 F.3d 233, 234 (11th Cir. 1995). [FN11]

FN9. In fact, defendant himself said that parachutes were used in his 1962 aircraft theft and flight to Cuba. P.S.R. ¶ 65; A 108.

FN10. This language was added to the Application Note specifically to resolve the split on this issue among other Circuits. U.S.S.G. Amendment 472 (eff. November 1, 1992); see United States v. Thomas, 961 F.2d at 1117 n.8 (declining to address issue).

FN11. Defendant also claims that his 1993-94 passing of thirty-three bad checks under the name of "John Willis Vanpool" could not be considered because he was not prosecuted for that crime (Appellant's Brief at 15 n.l). To the contrary, the Guidelines specifically allow consideration of conduct "not resulting in a criminal conviction," U.S.S.G. § 4A1.3(e). Defendant also claims that this offense must be excluded because it was an "insufficient funds check" offense under U.S.S.G. § 4A1.2(c)(l), but that section expressly allows inclusion of such offenses where "the defendant used a false name." U.S.S.G. § 4A1.2 Application Note 13. In any case, as defendant effectively concedes (Appellant's Brief at 15 n.l), the district court's limited discussion of this criminal conduct was harmless. See Williams v. United States. 503 U.S. at 203-04.

Next, defendant suggests that the district court failed to "proceed sequentially through each higher [criminal history] category until it reaches the range which best represents the defendant's criminal history" (Appellant's Brief at 14, 19). To the contrary, the district court did precisely that, in full compliance with the instructions in § 4A1.3 and United States v. Hickman, 991 F.2d 1110 (3d Cir. 1993). [FN12] As set forth.above, *19 after concluding that Category IV was inadequate, the court considered whether Category V was adequate. The court expressly found that a Category V sentence was not "adequate" to "fully reflect[]" defendant's criminal conduct and his likelihood of recidivism. A 108-09. Only then did the court go on to consider Category VI, which it found "fully reflects" defendant's criminality. Id. Accordingly, the court used Category VI to guide its departure by sentencing within the range for that category. A 110-11. The court's consideration of each category, its focus on whether each category "fully reflects" defendant's criminal history and likelihood of recidivism, its extensive discussion of that history and risk, and its explicit consideration of defendant's contentions, were plainly sufficient. See United States v. Hickman, 991 F.2d at 1114 (a court may reject a category if it "fails to adequately reflect the seriousness of the defendant's past criminal conduct"); United States v. Harris. 44 F.3d 1206, 1212 (3d Cir.), cert. denied, 115 S. Ct. 1806 (1995) (Hickman does not require "a

FN12. Section 4A1.3 instructs:

In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history, as applicable. For example, if the court concludes that the defendant's criminal history category of III significantly under-represents the seriousness of the defendant's criminal history, and that the defendant's criminal history more closely resembles

that of defendant with Criminal History Category IV, the court should look to the guideline range specified for a defendant with Criminal History Category IV to guide its departure.

U.S.S.G. § 4A1.3. Hickman instructs that

resembles that of defendant with Criminal History Category IV, the court should look to the guideline range specified for a defendant with Criminal History Category IV to guide its departure.

U.S.S.G. § 4A1.3. Hickman instructs that

the court is obliged to proceed sequentially through these categories. It may not move to the next higher category until it has found that a prior category still fails to adequately reflect the seriousness of the defendant's past criminal conduct.

United States v. Hickman, 991 F.2d at 1114. *20 ritualistic exercise in which [the court] mechanically discusses each criminal history category it rejects," but simply requires that "the sentencing court's reasons for rejecting each lesser category be clear from the record as a whole").

Defendant next complains about the district court's calculation that Criminal History Category VI would also be the result if the defendant received criminal history points for his 1962 and 1965 convictions. Defendant contends that the court used "simple arithmetic" to "bypass Category V" (Appellant's Brief at 18- 19). As stated above, this is untrue. In any case, given that the court was trying to make defendant's criminal history category accurately reflect those uncounted crimes, "it would certainly "seem to us reasonable for a sentencing court to consider what defendant's criminal history category would be if" the uncounted crimes were counted. See United States v. Harris, 44 F.3d at 1213 (charged crimes); United States v. Kikumura, 918 F.2d at 1112 (uncharged crimes).

Defendant points to his age, and argues that departure is more appropriate for younger defendants. The district court, however, was well aware that defendant was 61; it found that he was still likely to commit new crimes, just as he had done when he was 28, 31, 40, 53 and 58 years old. A 85-87, 97, 99-100; see P.S.R. ¶¶ 64-69 & pp. 2-3. Indeed, the court commented that, unlike younger defendants, it was clear that there was no prospect that defendant would "develop in life;" rather, the court found that he was not going to change. A 85-86, 108-11.

*21 Finally, defendant's brief is full of assertions that the district court's consideration of this departure was conclusory, and represented "nothing more than a disagreement with the application of the guidelines" (e.g., Appellant's Brief at 15-16). The careful consideration of this departure by Judge Irenas was anything but conclusory; it pointed specifically to the aspects of defendant's criminal history that justified departure, and offered a reasoned explanation for so doing. See A 78-111. Throughout, the judge demonstrated his understanding of the Guidelines, and applied the Guidelines in determining the reasons, manner and extent of his departure. E.g., A 80, 106- 11. Defendant's claim is thus without any basis whatsoever.

CONCLUSION

For all these reasons, this Court should affirm the judgment of the district court.