1995 WL 17148367 (3rd Cir.)

 

For opinion see 82 F.3d 407

 

United States Court of Appeals, Third Circuit.

 

UNITED STATES OF AMERICA, Appellee,

v.

Bobby Joe KEESEE, Appellant.

 

Nos. 95-5517, 95-5518.

 

October 27, 1995.

 

ON APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

 

(Criminal No. 94-535)

 

Appellant's Brief

 

Richard Coughlin, Assistant Federal Public Defender, 800 Hudson Square, Suite 350, Camden, New Jersey 08102, (609) 757-5341, Attorney for Appellant, Bobby Joe Keesee

 

Note: Table of Contents page numbers missing in original document

 

*i TABLE OF CONTENTS

 

TABLE OF CITATIONS ... ii

 

I. STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ... 1

 

1. SUBJECT MATTER JURISDICTION ... 1

 

2. APPELLATE JURISDICTION ... 1

 

II. STATEMENT CONCERNING RELATED APPEALS ... 1

 

QUESTIONS PRESENTED ... 2

 

STANDARD OF REVIEW ... 2

 

STATEMENT OF FACTS AND PROCEDURAL HISTORY ... 3

 

STATEMENT OF THE CASE ... 8

 

SUMMARY OF ARGUMENT ... 10

 

THE DISTRICT COURT'S DETERMINATION THAT AN UPWARD DEPARTURE WAS APPROPRIATE BECAUSE THE DEFENDANT'S CRIMINAL HISTORY SCORE WAS INSUFFICIENT LACKED BOTH A LEGAL AND FACTUAL FOUNDATION ... 12

 

CONCLUSION ... 21

 

CERTIFICATION ... 22

 

CERTIFICATE OF SERVICE ... 23

 

JUDGMENT OF CONVICTION (CR. NO. 135) ...

 

JUDGMENT OF CONVICTION (CR. NO. 535) ...

 

*ii TABLE OF CITATIONS

 

Table of Cases

 

United States v. Ashburn, 20 F.3d 1336 (5th Cir. 1994) ... 19

 

United States v. Belonger, 892 F.2d 473 (6th Cir. 1989) ... 16

 

United States v. Harris, 44 F.3d 1206 (3d Cir. 1995) ... 18

 

United States v. Hickman, 991 F.2d 1110 (3d Cir. 1993) ... 13, 14, 19

 

United States v. Jones, 905 F.2d 867 (5th Cir. 1990) ... 14, 16, 17

 

United States v. Lassiter, 929 F.2d 267 (6th Cir. 1991) ... 14

 

United States v. Osborne, 948 F.2d 210 (6th Cir. 1991) ... 16

 

United States v. Scott, 914 F.2d 959 (7th Cir. 1990) ... 13

 

United States v. Shaw, 891 F.2d 528 (5th Cir. 1989) ... 19

 

United States v. Thomas, 961 F.2d 1110 (3d Cir. 1992) ... 2, 16

 

United States v. Thomas, 24 F.3d 829 (6th Cir. 1994) ... 16

 

United States v. Wells, 878 F.2d 1232 (9th Cir. 1989) ... 14

 

Table of Authorities

 

18 U.S.C. § 912 ... 6

 

18 U.S.C. § 1028 ... 5

 

*iii 18 U.S.C. § 1542 ... 5

 

18 U.S.C. § 2314 ... 6

 

18 U.S.C. § 3231 ... 1

 

18 U.S.C. § 3553(b) ... 13

 

18 U.S.C. § 3742(a) ... 1

 

28 U.S.C. § 1291 ... 1

 

Other Authorities

 

U.S.S.G. § 4A1.2 ... 15

 

U.S.S.G. § 4A1.2; Commen. (n. 8) ... 17, 18

 

U.S.S.G. § 4A1.2(C)(1) ... 15

 

U.S.S.G. § 4A1.3 ... 7, 13, 14, 19

 

U.S.S.G. § 4A1.3(a) ... 14

 

U.S.S.G. § 4A1.3(e) ... 14

 

*1 I. STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

 

1. Subject Matter Jurisdiction

 

This prosecution of an offense against the United States was within the original jurisdiction of the district court. 18 U.S.C. § 3231.

 

2. Appellate Jurisdiction

 

This is an appeal from a final Order of the district court, and this court has jurisdiction pursuant to Section 1291 of Title 28 of the United States Code. This appeal of a sentence imposed by application of the sentencing guidelines is authorized by Section 3742(a) of Title 18 of the United States Code.

 

II. STATEMENT CONCERNING RELATED APPEALS

 

The appellant is unaware of any past, pending or anticipated appeal related to this case.

 

*2 QUESTIONS PRESENTED AND STANDARD OF REVIEW

 

Did the district court's determination that an upward departure was appropriate because the defendant's criminal history score was insufficient lack both a legal and factual foundation?

 

1. A district court's justification for a departure is subject to plenary review. United States v. Thomas. 961 F.2d 1110, 1114 (3d Cir. 1992).

 

*3 STATEMENT OF FACTS AND PROCEDURAL HISTORY

 

In January 1993, the defendant was living in Mexico and was attempting to procure an airplane for a group of Colombians. (PSR para. 17). On January 8, 1993, the defendant telephoned NewCal Aviation, Inc., Little Ferry, New Jersey, to request information about a deHavilland Caribou DHC-4A aircraft. NewCal refurbishes and sells older model airplanes. (PSR para. 17). The defendant identified himself as James M. Murphy, an official at the United States Embassy in Mexico. (PSR para. 17). The defendant inquired about the age and condition of the plane and indicated that he required an aircraft with short landing and takeoff capabilities. (PSR para. 17). After NewCal faxed a specification sheet about the plane to the defendant, the parties agreed upon a sale price of $478,000. (PSR para. 18). On January 11, 1993, NewCal received a copy of a purported order form from the United States Embassy in Mexico which authorized the purchase of the plane by the defendant. (PSR para. 18).

 

Believing that a deal had been struck, on January 22, 1993, representatives of NewCal flew the Caribou to Tucson, Arizona for modifications. (PSR para. 19). Once the modifications were completed, the NewCal representatives flew the plane to Hermosillo, Mexico, where they were met by a Captain Blanco. (PSR para. 19). *4 Although the captain was supposed to facilitate the further progress of the NewCal representatives, they remained in Hernnosillo for a week. (PSR para. 19). Afterwards, they flew to Toluca, Mexico, where they were met by the defendant and another individual. (PSR para. 20).

 

The defendant continued his charade by representing that he was James M. Murphy, an official with the State Department. (PSR para. 20). The defendant explained that the plane was needed to replace an aircraft that had been lost in a secret mission, and required the NewCal representatives to sign affidavits which acknowledged that the sale was classified and that disclosure of any information would be a federal offense. (PSR para. 20). The defendant signed the original purchase authorization and NewCal presented him with a bill of sale and the plane. (PSR para. 21).

 

The NewCal representatives returned to the United States and later attempted to collect the purchase price. (PSR para. 21). When NewCal contacted the State Department, they learned that the sale was a fraud. (PSR para. 21). The plane, however, had been taken to a secure area by the defendant when he learned that the buyers did not intend to pay for the plane. (App. p. 81). As a result, the plane was recovered by Mexican authorities and returned to NewCal. (PSR para. 22).

 

In the meantime, the defendant had left Mexico and traveled to Germany there he met a woman who he soon married. (PSR para. 22). *5 The couple resided in Hailer, Germany and the defendant found employment as a salesclerk at a United States military installation in Germany. (PSR para. 96).

 

On June 3, 1994, the United States Consulate, Frankfurt, Germay, was advised of the defendant's presence in Germany. (PSR para. 25). A record check disclosed that the defendant was wanted by the United States Marshal for a parole violation and by federal law enforcement agencies in the District of New Jersey and the Central District of California. (PSR para. 25).

 

On June 7, 1994, the defendant was arrested at his residence in Germany. (PSR para. 26). At that time, the arresting officers found a number of false pieces of identification, including two United States passports. (PSR para. 26). The defendant advised the officers that he had obtained a third passport in a different name, but that he had since disposed of it. (PSR para. 26).

 

On July 14, 1994, a six count indictment was filed in the District of Columbia. (App. p. 10). The charges included three counts of possession of the three false passports and three counts of false statements by the defendant to obtain the passports in violation of 18 U.S.C. § 1542 and 18 U.S.C. S 1028, respectively. (App. pp. 10-13). On October 4, 1994, a two count indictment was filed in the District of New Jersey. (App. pp. 5-9). The indictment charged the defendant with defrauding NewCal Aviation, *6 Inc., in violation of 18 U.S.C. S 2314, and one count of impersonating a United States official to obtain a thing of value, in violation of 18 U.S.C. § 912. (App. pp. 5-9). The extradition was based on the indictment pending in the District of New Jersey, the NewCal plane indictment 94-535 (D/NJ), charges relating to the false passports which the defendant obtained in Europe, 95-135 (D/DC), and a complaint filed in the Central District of California.

 

On October 24, 1994, the defendant appeared before the Honorable Joseph E. Irenas, United States District Judge, and entered pleas of not guilty to both counts of the New Jersey indictment. (App. p. 2). On March 24, 1995, the defendant retracted his not guilty plea and, pursuant to a written plea agreement, entered guilty pleas to both counts of the New Jersey indictment. (App. p. 2). In addition, pursuant to Federal Rule of Criminal Procedure 20, the District of Columbia charges were transferred to the District of New Jersey, and the defendant pled guilty to all six counts of that indictment. (App. pp. 4; 22-29).

 

On July 14, 1995, the defendant appeared before Judge Irenas for sentencing. The guideline calculations in the presentence report reflected a total offense level of 16 and a criminal history score of nine. (PSR para. 61; 77). The nine criminal history points placed the defendant in criminal history category IV and produced a sentencing range of 33 to 41 months. (PSR para. 112). *7 The defendant objected to the offense level calculation on the theory that the $478,000 loss calculation was based upon an overestimation of the value of the DeHavilland Caribou aircraft. (App. pp. 12-77). After conducting an evidentiary hearing, the district court denied the defendant's objection and concluded that the guideline calculations in the presentence report were correct and that the sentencing range was 33 to 41 months. (App. pp. 72-77).

 

The district court, however, did not believe that the sentencing range was sufficient. (App. pp. 78-81). Although the government did not request an upward departure, the district court, with prompting, if not advocacy by the probation office, concluded that an upward departure was appropriate because the defendant's criminal history score did not adequately reflect the seriousness of the defendant's past criminal conduct on the likelihood that he would commit other offenses. U.S.S.G. § 4A1.3. (App. pp. 107-115). The court determined that a criminal history category of VI more accurately reflected the defendant's prior record and likelihood of recidivism, and imposed a term of 57 months. (App. pp. 14-21; 107-115).

 

On July 21, 1995, a timely Notice of Appeal was filed, and on October 20, 1995, the appeal from the New Jersey case was consolidated with the District of Columbia case for purposes of appeal. (App. pp. 117-119).

 

This appeal follows.

 

*8 STATEMENT OF THE CASE

 

The defendant is a 61 year old man whose prior criminal record consisted of two related 1962 offenses involving the interstate transportation of stolen property, a 1965 theft of government property charge, a 1974 conspiracy to kidnap a United States consular official offense, and a 1987 mail and wire fraud scheme.

 

In January 1993, the defendant became involved in a scheme to obtain an aircraft from a New Jersey company. The defendant posed as a United States Embassy official in Mexico City, Mexico and somehow convinced the owners of the New Jersey company, NewCal Aviation, Inc., to deliver a plane to the defendant in Mexico City, in return for a form authorizing payment of $478,000 by the United States government.

 

When NewCal received no payment for the plane, they contacted the State Department. The scam was soon revealed and the plane was recovered in Mexico, largely because the defendant moved it to a secure place and notified NewCal of its location. The defendant, however, was not apprehended at that time.

 

Instead, he relocated to Germany, where he soon married and obtained a job. In addition, the defendant obtained false identification in a number of names and forms, including three false passports.

 

The defendant was apprehended in Germany on June 7, 1994. *9 After an extradition hearing, he was returned to the United States to face a two count indictment in the District of New Jersey, (the NewCal charges), in the District of the District of Columbia (the passport charges), and a complaint in the Central District of California.

 

Eventually, the defendant, pursuant to a plea agreement, pled guilty to the New Jersey and District of Columbia charges and a presentence report was prepared. The guideline calculations established that the total offense level for the defendant's conduct was 16 and that he had a criminal history score of nine, which placed him in Category IV. The sentencing range was 33 to 41 months.

 

At the sentencing hearing, although the government did not request a departure, the district court concluded that the defendant's criminal history score underepresented the seriousness of his prior record as well as the likelihood of recidivism. Consequently, the court departed upward and sentenced the defendant to a prison term of 57 months.

 

The defendant filed a timely Notice of Appeal.

 

*10 SUMMARY OF ARGUMENT

 

The defendant is 61 years old and has five prior convictions. Three of the five offenses occurred more than 30 years ago. Two of those convictions were related offenses, and due to their age, none of the three were counted for purposes determining the defendant's criminal history score.

 

The defendant's two remaining convictions were counted for purposes of establishing his criminal history score. The first offense occurred in 1974. The defendant was convicted of conspiracy to kidnap a consular official, the victim died and the defendant was sentenced to a twenty-year prison term. Three criminal history points were assigned as a result of this conviction.

 

The second conviction occurred in 1987. The defendant was convicted of mail and wire fraud as a result of his role in a scheme to defraud a company of approximately $500,000 worth of copper. The offense conduct began two weeks after the defendant was released on parole for the 1974 conviction. The defendant posed as a navy contractor who awarded a fake contract to a California company. The California company arranged for the delivery of copper to the defendant. The defendant accepted delivery and resold the copper. In addition to the mail and wire *11 fraud convictions, the defendant's parole was revoked. The defendant received three criminal history points for this conviction.

 

In addition, the defendant received two criminal history points because he was on parole at the time the offense was committed, and another point because the offense occurred less than two years after he was released from custody. The defendant, therefore, received nine criminal history points and was a category IV offender for purposes of sentencing.

 

The district court, however, without a motion by the government, concluded that an upward departure was appropriate because the defendant's criminal history score did not adequately reflect the seriousness of his prior record or the likelihood of recidivism. The court, therefore, sentenced the defendant as a category VI offender and imposed a prison term of 57 months. The defendant maintains that his criminal history score adequately reflected his prior record and that there was an inadequate basis for the court to conclude that the defendant's prior record was so unusual that a departure was appropriate.

 

*12 THE DISTRICT COURT'S DETERMINATION THAT AN UPWARD DEPARTURE WAS APPROPRIATE BECAUSE THE DEFENDANT'S CRIMINAL HISTORY SCORE WAS INSUFFICIENT LACKED BOTH A LEGAL AND FACTUAL FOUNDATION.__________

 

The defendant pled guilty to all counts of two separate indictments. The first indictment charged the defendant with fraudulently obtaining an airplane and impersonating a United States official. The second indictment charged the defendant with three counts of possession of false passports and three counts of false statements. The guideline calculations in the presentence report reflected a combined offense level of 16. (PSR para. 61). The report also established that the defendant's criminal history score placed him in Category IV. (PSR para. 75-77). The sentencing range was 33 to 41 months. (PSR para. 112). The district court, acting without a motion by the government, concluded that the defendant's criminal history score significantly underrepresented the seriousness of his prior record and departed upward to a sentence of 57 months. (App. 107-115). The defendant respectfully submits that the decision by the district court to depart upward must be reversed because it lacked both a legal and factual basis.

 

The sentencing guidelines require that a sentence be imposed within the applicable guideline range unless "the court finds that there exists an aggravating or mitigating circumstance of a kind or *13 to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines..." 18 U.S.C. § 3553(nb). The sentencing guidelines permit an upward departure from the otherwise applicable guideline range

 

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...

 

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 or tribal offenses);...

 

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

 

U.S.S.G. § 4A1.3.

 

The decision to depart from the guidelines under U.S.S.G. S 4A1.3 must be supported by articulable reasons of a type contemplated by the Act and the Guidelines, and based on a sufficiently sound factual foundation. United States v. Scott, 914 F.2d 959, 963 (7th Cir. 1990); United States v. Hickman. 991 F.2d 1110, 1113-14 (3d Cir. 1993). A district court's personal disagreement with the guidelines does not provide a reasonable basis for a departure. United States v. Scott, 914 F.2d at 963; *14 United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989).

 

Furthermore, departures under U.S.S.G. § 4A1.3 must be strictly tied to the guideline structure. That is, the court is obliged to proceed sequentially through each higher category until it reaches the range which best represents the defendant's criminal history. United States v. Hickman, 991 F.2d at 1114. The court must demonstrate that the defendant's criminal history category is too lenient and that any succeeding categories are also insufficient before proceeding to an even higher criminal history category. United States v. Lassiter, 929 F.2d 267, 271 (6th Cir. 1991). A conclusory statement of reasons is not enough. Id. A recital of past convictions followed by a statement that the guidelines fail to address adequately the question of recidivism is nothing more than a statement of disagreement with the formulation of the guidelines and does not satisfy the requirement that specific aspects of the defendant's past which set him apart from others in the same category be identified to support a departure. Id.; United States v. Jones, 905 F.2d 867, 870 (5th Cir. 1990). The first question that must be addressed, therefore, is whether the facts of a case are sufficiently unusual to warrant a departure. United States v. Lassiter, 929 F.2d at 270. This presents a question of law that is reviewed de novo. Id.

 

In this case, the district court relied upon U.S.S.G. § 4Al.3(a) and (e) to justify the decision to depart. (App. pp. 80- *15 81; 107). The defendant had three prior convictions which were not included in the criminal history calculation because of their age. (PSR para. 64-66). Two of the convictions occurred in 1962 and the third occurred in 1965. (PSR para. 64-65). The guidelines specifically exclude convictions which are that old from the guideline calculation. U.S.S.C. § 4A1.2. In addition, because the two 1962 convictions arose out of the same events, the district court counted those two matters as one conviction when it formulated its departure decision. (App. pp. 107-110). From that point forward, the court's decision was simply a calculation of what the defendant's criminal history score would have been had the 1962 and 1965 convictions not been excluded from the computation because of their age. (App. pp. 107-110). The court assigned three points for the 1962 convictions, one point for the 1965 conviction, and added those five points to the nine existing points. [FN1] (App. pp. 107-109). The result, of course, was 14 points and a new criminal history category of VI. The defendant respectfully submits that the district court's calculations were really nothing more than a disagreement with the application of the *16 guidelines. See United States v. Jonea, 905 F.2d 867, 870 (5th Cir. 1990).

 

    FN1. The district court also alluded to 33 dishonored checks the defendant wrote in Germany. The defendant was not prosecuted for these checks, and, in fact, satisfied the financial obligation. The court does not appear to have relied upon this conduct in its departure decision. (App. p. 109). It should also be noted that even if convicted of the bad checks, the conduct would not have counted for guidelines purposes. U.S.S.G. § 4A1.2(C)(1).

 

Significantly, this was not a case where the defendant had a substantial number of criminal convictions that were either uncounted or which were counted but of no consequence because the criminal history score had already reached category VI. See United States v. Thomas, 24 F.3d 829, 832 (6th Cir. 1994); United States v. Osborne, 948 F.2d 210, 214 (6th Cir. 1991); United States v. Belonger, 892 F.2d 473 (6th Cir. 1989). Instead, the defendant in effect had two thirty year old convictions which were not included in the criminal history calculation. This is not the type of circumstance under which a departure is warranted.

 

Indeed, if a district court were permitted to depart in the manner employed in this case, the decision by the Sentencing Commission to exclude certain convictions from the criminal history calculation or because of their age, would be rendered illusory. The Sentencing Commission concluded that such convictions should not be used in the criminal history calculation and that decision should not be subject to evasion by means of a departure, except in the rare circumstances suggested by the Commission. The ancient convictions in this case do not satisfy the criteria established by the Sentencing Commission and do not, therefore, provide a basis for a departure as a matter of law. See United States v. Thomas, 961 F.2d 1110, 1115-18 (3d Cir. 1992).

 

*17 Additionally, although not cited by the district court, the commentary to the guidelines suggests that, with respect to convictions not counted because of their age, a departure may be appropriate if the conviction was for "similar, or serious dissimilar," criminal conduct. U.S.S.G. § 4A1.2; Commen. (n.8). None of these provisions provide a basis for concluding that the defendant's criminal history score of nine was so underrepresentative of his criminal record as to remove the case from the mainstream. The defendant accumulated nine criminal history points on the basis of two prior convictions. The fact that the defendant had two other convictions which were not counted because of their age simply does not provide a basis to conclude that the criminal history score seriously underrepresented the defendant's prior record. This is so despite the fact that the 1962 conviction was arguably for conduct similar to that undertaken in this case, although even that factual assumption is something of a stretch, in that those convictions involved thefts rather than the more elaborate fraud involved in this case. (PSR para. 64-66). The mere fact that the defendant stole a car and a plane 30 years before he secured another plane by means of a fraudulent scheme is simply not enough to distinguish the criminal history calculations in this case from the scores of other defendants whose ancient convictions are not counted. See United States v. Jones. 905 F.2d at 870 (mere recital of prior uncounted convictions not sufficient *18 to justify a departurez).

 

Even more obvious is the impropriety of the court's consideration of the 1965 conviction to justify the departure. The only information available indicates that the offense involved the theft of parachutes. The defendant received a one year prison term. He was paroled and successfully completed the parole term. This offense is not similar to the instant convictions and is not a "serious dissimilar" conviction. U.S.S.G. § 4A1.2; Commen. (n. 8). Accordingly, it should not have been included in the court's departure decision. The significance of the court's consideration of this conviction is highlighted when the court's departure methodology is analyzed.

 

In an attempt to justify a two criminal history category departure, the court determined what the guideline range would have been if the two convictions were included in the computation. (App. pp. 107-109). By doing the simple arithmetic, the court was able to justify bypassing Category V in favor of Category VI. This, however, is not what the guidelines contemplated. The criminal history mechanism adopted by the Commission is designed to account for recidivism as reflected by the defendant's criminal past. United States v. Harris, 44 F.3d 1206, 1212-13 (3d Cir. 1995). The fact that a district court in a particular case disagrees with that mechanism is not a basis for a departure. See United States v. Harris. 44 F.3d at 1212; *19United States v. Ashburn, 20 F.3d 1336, 1344-45 (5th Cir. 1994). Moreover, it is not a demonstration or articulation of a basis to bypass Category V. Id. A court cannot meet its obligation by simply uttering the words recidivism and seriousness. Id. It must instead articulate both the reason for the departure and explain why a particular criminal history category is insufficient. United States v. Hickman, 991 F.2d at 1114; United States v. Shaw, 891 F.2d 528, 530 (5th Cir. 1989).

 

In short, the district court's decision to depart was flawed in several respects. Although the defendant has a serious prior record and obviously presents concerns about recidivism, the most serious of his prior crimes are accounted for under the guidelines. In addition, he is 61 years old and the commentary to U.S.S.G. § 4A1.3 suggests that departures for underrepresented criminal history scores may be more appropriate for younger defendants. The defendant's prior uncounted convictions were 30 years old. The district court's use of those convictions to depart upward ignored the policy decision by the Sentencing Commission to exclude ancient convictions from the criminal history calculation. There was nothing that was so unusual or unique about those convictions or the defendant's prior record that would justify their use by the district court for purposes of a departure.

 

Likewise, the methodology employed by the court was inappropriate. The district court failed to explain why Category *20 V was insufficient. Most significant in this regard was the court's use of the defendant's 1965 conviction for stealing parachutes. This was not an offense that was similar to the defendant's current convictions, and from the record available, it was not a "serious dissimilar" offense. Consequently, even if the 1962 convictions were appropriately considered, the use of the 1965 conviction cannot be justified under the regime established by the Sentencing Commission. The Sentencing Reform Act of 1984 was intended to drastically curtail the discretion previously entrusted to district court judges. In many cases, district court judges no doubt feel frustrated by guideline restrictions. Sometimes that frustration results from requirements that compel them to impose a sentence they believe is too harsh and sometimes from rules that direct them to impose a sentence they believe is too lenient. In either case, disagreement with the guidelines is not a basis for a departure. The defendant respectfully submits that the departure in this case, in whole or in part, was based on nothing more than a disagreement with the guideline rules relating to the treatment of older prior convictions. That is not a basis for a departure and the defendant, therefore, respectfully submits that the case should be remanded to the district court.

 

*21 CONCLUSION

 

For the above stated reasons, the appellant respectfully submits that the requested relief should be granted.

 

Note: Footnote indicator **** missing in original document.

 

    FN**** Counsel for the appellant wishes to gratefully acknowledge the assistance of Christian Szautner, third year student, Pennsylvania, with the preparation of the within brief.