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United States v. Taylor, 10th Cir. (1999)
United States v. Taylor, 10th Cir. (1999)
JAN 19 1999
PATRICK FISHER
Clerk
v.
MARY LOU TAYLOR,
Defendant-Appellant.
In this direct criminal appeal, defendant argues the district court erred in
sentencing her as a manager or supervisor of the offense,
see U.S.S.G.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
1
1291, this court reviews the sentencing courts legal determinations de novo,
and its factual findings for clear error,
I.
presentence report indicates that defendant obtained credit card numbers from
guests staying at a hotel where she worked. Defendant, and others, then used
these numbers, without the cardholders authorization, to purchase merchandise.
Although the participants purchased merchandise in Oklahoma City, Oklahoma,
and Wichita, Kansas, they made the majority of their purchases through one
particular salesperson at a single furniture store in Oklahoma City.
The presentence report recommended the district court increase defendants
offense level three levels as a manager or supervisor of the offense,
see U.S.S.G.
3B1.1(b), because defendant obtained the credit card numbers, furnished them
to five or more participants in this scheme, and instructed those participants on
how to use the numbers to purchase merchandise.
Defendant objected to this increase, asserting that, while she did obtain the
credit card numbers, she turned those numbers over to her boyfriend, who in turn
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gave the numbers to the other participants, and instructed defendant and the
others on how and where to make purchases using those numbers. Defendant also
specifically objected to the presentence reports description of her role in the
Oklahoma City purchases. The district court overruled these objections, finding
that defendants
conduct does in fact warrant a supervisor or manager role in this
offense. She certainly orchestrated the offenses in terms of
appropriating credit card numbers from her place of employment and
furnishing them to others. She exercised decision-making authority.
She told them how to do it, told them where to go.
Id. , vol. 3 at 5.
On appeal, defendant argues that, in making this determination, the
sentencing court violated Fed. R. Crim. P. 32(c)(1), which requires that, [f]or
each matter controverted, the court must make either a finding on the allegation
or a determination that no finding is necessary because the controverted matter
will not be taken into account in, or will not affect, sentencing. We agree.
A district court may not satisfy its obligation under Rule 32(c)(1) by simply
adopting the presentence report as its findings.
(1998). Where, as here, the district court fails to comply with Rule 32, we must
remand for the court to either make the necessary findings and attach them to the
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presentence report, or enter a declaration that it did not take the controverted
matters into account in sentencing the defendant.
II.
UPWARD DEPARTURE
Despite our remand for resentencing, we must still review the sentencing
1427 (10th Cir. 1997). The district court departed upward from the Guidelines
recommended sentence, adding three points to defendants criminal history
category, after determining that this category otherwise significantly
underrepresented the seriousness of her criminal history or the likelihood that
defendant would commit further crimes.
1997)). This court reviews the district courts decision to depart upward under a
unitary abuse-of-discretion analysis, reviewing the permissibility of the factors
upon which the district court based its departure without deference, but affording
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substantial deference to the sentencing courts finding that the factors upon which
it relied warranted both a departure and the degree to which the court departed.
See id. at *4, *7, *8.
The factors upon which the district court based its decision to depart
upwardthat defendants criminal history points did not adequately reflect the
seriousness of her past criminal history and the likelihood that defendant would
again commit other crimesare permissible factors upon which to base an
upward departure.
Collins , 122 F.3d at 1303-04. So, too, were the specific bases upon which the
district court departed: the Guidelines allotted only three criminal history points,
ordinarily awarded for a single conviction and sentence of at least one year and
one month, see U.S.S.G. 4A1.1(a), for twenty-two convictions resulting in
concurrent ten-year sentences, only because these convictions were consolidated
for sentencing purposes; and the Guidelines failed to allot any criminal history
points for a pending state charge upon which defendant had agreed, but failed, to
make restitution.
States v. Lowe , 106 F.3d 1498, 1502 and n.7 (10th Cir.),
2494 (1997).
Further, the district court did not err in determining that these same reasons
took this case out of the heartland of cases addressed by 4A1.1(a).
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See
v. Kalady , 941 F.2d 1090, 1099 (10th Cir. 1991). In addition, the record does not
support defendants assertion that the twenty-two convictions consolidated for
sentencing were factually related offenses.
scheme, and defendant committed these offenses against several different victims
over a six-month period of time.
same incident or victim, and for the pending state count upon which defendant
had agreed to pay restititution.
the degree of departure it imposed and, in doing so, referred to the analogous
Guideline provisions.
Lowe , 106
F.3d at 1503; see also, e.g. , United States v. Flinn , 18 F.3d 826, 829 (10th Cir.
1994) (assignment of criminal history category points for past criminal conduct is
reasonable methodology consistent with Guidelines goals of uniformity and
proportionality). The district court, therefore, did not abuse its discretion in
departing upward from the Guidelines recommended sentencing range to the
degree it did.
We, nevertheless, VACATE defendants sentence, in light of the
sentencing
courts violation of Rule 32(c)(1), and REMAND to the district court for
resentencing.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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