United States of America v.  Thomas Joseph Dalton

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-5265 
THOMAS JOSEPH DALTON,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-03-739)
Argued: November 28, 2006
Decided: February 27, 2007
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Vacated and remanded by published opinion. Judge Wilkinson wrote
the opinion, in which Judge Motz and Judge Gregory joined.
COUNSEL
ARGUED: H. Stanley Feldman, Charleston, South Carolina, for
Appellant. Brent Alan Gray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee. ON BRIEF: Reginald I. Lloyd, United
States Attorney, Charleston, South Carolina, for Appellee.

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OPINION
WILKINSON, Circuit Judge:
Thomas Dalton appeals the sentence arising from his conviction for
credit card fraud in violation of 18 U.S.C. § 1029(a)(2) (2000). He
argues that the district court acted unreasonably in imposing a 105-
month sentence, an upward departure of nearly eighty-five percent
from the top of the advisory guidelines range. While we decline
defendant’s invitation to hold any upward departure unreasonable, the
degree of departure from the advisory guidelines range requires fur-
ther explanation and we therefore vacate and remand for resentencing.
I.
Defendant Thomas Dalton used other people’s credit cards to buy
approximately $100,000 worth of computer programs over the Inter-
net. He then sold the expensive software on E-Bay. On December 10,
2003, Dalton was indicted on one count of credit card fraud. The
indictment charged Dalton with the knowing and intentional use of
more than one unauthorized access device to obtain goods, services,
and cash having an aggregate value in excess of $1,000 in violation
of 18 U.S.C. § 1029 (a)(2).
Dalton pled guilty on March 1, 2004. On September 8, 2004, the
district court sentenced him to a term of 105 months’ imprisonment,
three years supervised release, restitution in the amount of
$98,851.64, and a $100 special assessment under the then mandatory
guidelines. Dalton appealed and this court remanded for resentencing
in light of the Supreme Court’s intervening decision in United States
v. Booker, 543 U.S. 220 (2005). See United States v. Dalton, 150 Fed.
Appx. 219 (4th Cir. 2005). On remand, the district court held a second
sentencing hearing and resentenced Dalton to 105 months’ imprison-
ment under the advisory guidelines. Dalton now appeals the corrected
sentence.
II.
A.
Imposing a post-Booker sentence under the advisory guidelines is
a multi-step process. United States v. Moreland, 437 F.3d 424, 432
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(4th Cir. 2006). First, the district court "must correctly determine,
after making appropriate findings of fact, the applicable guidelines
range." Id. The court then considers whether a sentence within that
range "serves the factors set forth in § 3553(a) and, if not, select[s]
a sentence that does serve those factors." United States v. Green, 436
F.3d 449, 456 (4th Cir. 2006). In selecting a sentence outside the
advisory guidelines range, the court should first consider whether
appropriate grounds for departure exist. United States v. Davenport,
445 F.3d 366, 370 (4th Cir. 2006); Moreland, 445 F.3d at 432. When
"an appropriate basis for departure exists, the district court may
depart." Moreland, 437 F.3d at 432. "If the resulting departure range
still does not serve the factors set forth in § 3553(a)," the court may
impose a variance sentence. Davenport, 445 F.3d at 370.
B.
The district court in this case granted the government’s motion for
upward departure on the ground that Dalton’s criminal history cate-
gory inadequately reflected his actual criminal history. See U.S. Sen-
tencing Guidelines Manual ("U.S.S.G") § 4A1.3 (2006). Because the
district court properly imposed a departure sentence before consider-
ing a variance sentence, Davenport, 445 F.3d at 370, this case pre-
sents no question as to whether a variance sentence would be appro-
priate. We review the court’s departure for reasonableness. Id.
To begin with, the presentence investigation report ("PSR") in this
case recommended a base offense level of six and a total offense level
of sixteen. See U.S.S.G § 2B1.1(a)(2). Based on Dalton’s past crimi-
nal conduct, the PSR assigned him fifteen criminal history points,
placing him in Criminal History Category VI. The advisory guidelines
range for Dalton’s sentence was 46-57 months’ imprisonment.
At the first sentencing hearing, the district court adopted para-
graphs 1 through 116 of the PSR as findings of fact. The court found
that Dalton had twenty-three potential criminal history points that had
not been included in Dalton’s criminal history count. It combined
these points with the countable criminal history points, arriving at a
total criminal history score well beyond the thirteen points needed to
establish a criminal history category of six. Based on these criminal
history findings, the district court granted the government’s motion
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for an upward departure and extended the table horizontally imposing
a 105-month sentence. On remand, the district court again evaluated
defendant’s criminal history; the court then considered the 18 U.S.C.
§ 3553(a) sentencing factors, determined that the appropriate guide-
lines range was 100 to 125 months, and reimposed the 105-month
sentence.
III.
A.
Dalton maintains that the 105-month sentence imposed by the dis-
trict court was unreasonable. The Sentencing Guidelines specify that
an upward departure is warranted when "reliable information indi-
cates that the defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s criminal history or
the likelihood that the defendant will commit other crimes." U.S.S.G.
§ 4A1.3. To determine whether a criminal history category underre-
presents the seriousness of a defendant’s criminal history, a district
court may consider both "[p]rior sentences not used in computing the
criminal history category" and "[p]rior similar adult criminal conduct
not resulting in a criminal conviction." U.S.S.G. § 4A1.3(a)
(2)(A),(E).
In light of these principles, the district court’s conclusion that "Dal-
ton’s criminal history category of six does not adequately reflect [his]
past criminal conduct or his chances of recidivism" was a reasonable
one. See United States v. Cash, 983 F.2d 558, 560-61 (4th Cir. 1992)
(holding upward departure based on finding that Criminal History
Category VI underrepresented defendant’s actual criminal history rea-
sonable). For Dalton has an extensive criminal history. He has been
arrested forty times since 1975. Of Dalton’s forty arrests, twenty-four
resulted in convictions; eighteen convictions involved fraud and one
the use of a weapon. Many of Dalton’s prior arrests and convictions
were left unaccounted for in the PSR calculations. Dalton was not
given criminal history points for nine offenses that occurred more
than ten years prior to the instant offense. An additional eleven arrests
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and convictions were not assigned criminal history points because
they were "related" to the credit card offense.1
We do note that the district court’s findings of twenty-one attribut-
able criminal history points and twenty-three potential history points
are in tension with the PSR, which calculated fifteen criminal history
points. On remand, the district court should explain its criminal his-
tory calculations, specifying which arrests and convictions form the
basis for the additional points. But the fact remains that an upward
departure on the ground that the criminal history category underrepre-
sented Dalton’s criminal history was undeniably reasonable. As the
district court explained, defendant’s forty arrests as well as his admis-
sion that he had on many occasions promptly resumed his fraudulent
enterprises upon release from jail — indeed, even conducting some
of those enterprises from jail — demonstrated a "continuing pattern
of criminal behavior [that] reflects a high probability of recidivism."
As a result, Dalton "would pose a serious risk to the community" if
the instant offense were "not adequately addressed." Thus, the district
court "reasonably concluded that a sentence above the advisory guide-
line range was warranted." Davenport, 445 F.3d at 371.2
1Defendant’s contention that the district court erred by considering
prior arrests misses the mark. Although section 4A1.3 provides that "a
prior arrest record itself" may not form the basis for a departure, a depar-
ture may be based upon "the facts underlying [prior] arrests." United
States v. Dixon, 318 F.3d 585, 591 (4th Cir. 2003). Here, the criminal
conduct findings provided in the PSR and adopted by the district court
go well beyond the mere fact of arrest. Thus, on remand, the district
court may rely upon facts "underlying [prior] arrests" without running
afoul of section 4A1.3. See id.
2Defendant also claims that the district court erred by counting the
seriousness of his offense against him twice. He argues that the court not
only increased his base offense level by ten points due to the amount of
loss and method used to commit the fraud, but also departed upward
based on its view of the seriousness of the offense — "a matter already
accounted for in the Sentencing Guideline calculation." Defendant’s con-
tention is without merit: the sentencing court’s upward departure was
based on the seriousness of Dalton’s past criminal history, not the seri-
ousness of his present offense.
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B.
Nonetheless, even where an upward departure from Criminal His-
tory Category VI is plainly warranted, a sentencing court must depart
incrementally, explaining the reasons for its departure. The Sentenc-
ing Guidelines provide that when a sentencing court "determines that
the extent and nature of the defendant’s criminal history . . . warrant
an upward departure from Criminal History Category VI" the court
"should structure the departure by moving incrementally down the
sentencing table to the next higher offense level in Criminal History
Category VI until it finds a guideline range appropriate to the case."
U.S.S.G. § 4A1.3(a)(4)(B) (emphasis added). A court, in other words,
"should move to successively higher categories only upon finding that
the prior category does not provide a sentence that adequately reflects
the seriousness of the defendant’s criminal conduct." Cash, 983 F.2d
at 561. In this case, the district court departed from section 4A1.3’s
requirements in two ways.
1.
To begin with, the district court failed to employ the incremental
approach dictated by § 4A1.3(a)(4)(B). See Cash, 983 F.2d at 561;
United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992); U.S.S.G.
§ 4A1.3(a)(4)(B); § 3553(c)(2). Section 4A1.3’s mandate to depart
incrementally does not, of course, require a sentencing judge "to
move only one level, or to explain its rejection of each and every
intervening level." See e.g., United States v. Little, 61 F.3d 450, 454
(6th Cir. 1995) (quotation omitted); see also United States v. Taylor,
88 F.3d 938, 948 (11th Cir. 1996). And while a court should indicate
its reasons for departing upward under section 4A1.3, it need not "in-
cant the specific language used in the guidelines," Rusher, 966 F.2d
at 882, or "go through a ritualistic exercise in which it mechanically
discusses each criminal history category [or offense level] it rejects
en route to the category [or offense level] that it selects." United
States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc); see
also Taylor, 88 F.3d at 948; Little, 61 F.3d at 454.
Here, however, the district court imposed a sentence almost twice
the top of the advisory guidelines range. Whether a departure is
upward or downward, "[t]he farther the [sentencing] court diverges
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from the advisory guideline range," the more a reviewing court must
"carefully scrutinize the reasoning offered by the district court in sup-
port of the sentence." United States v. Hampton, 441 F.3d 284, 288
(4th Cir. 2006); see also Moreland, 437 F.3d at 434. The requirement
that dramatic departures require more extensive justification, see
Hampton, 441 F.3d at 288, arises from "the need to avoid unwar-
ranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct," United States v.
Eura, 440 F.3d 625 (4th Cir. 2006) (quoting U.S.S.G. § 3553(a)(6));
see also Rusher, 966 F.2d at 882. In view of the magnitude of the dis-
trict court’s departure, the court’s fairly general statement that it "con-
sidered lesser offense levels and found them to be inadequate" falls
short of the incremental analysis required by section 4A1.3. See
Moreland, 437 F.3d at 434.
2.
The district court also erred by extending the sentencing table
beyond Criminal History Category VI on a horizontal axis. When a
defendant is already in the highest criminal history category, Category
VI, a sentencing court must depart on the vertical axis, "moving incre-
mentally down the sentencing table to the next higher offense level."
U.S.S.G. § 4A1.3(a)(4)(B) (emphasis added); see also United States
v. Smith, 289 F.3d 696, 711 (11th Cir. 2002). On remand, the district
court should "move down the [Criminal History Category] VI column
to successively increasing offense levels until an appropriate sentenc-
ing range is reached." United States v. Hardy, 99 F.3d 1242, 1248 n.8
(1st Cir. 1996); see also Taylor, 88 F.3d at 947-48.3
In sum, defendant’s criminal history is serious and his rate of recid-
ivism glaring. Therefore, the district court’s decision to depart upward
3We note the district court’s reliance on this court’s suggestion in
United States v. Cash that a sentencing court might extrapolate horizon-
tally from Category VI. See Cash, 983 F.2d at 561. But the Sentencing
Guidelines now direct district courts to depart vertically from Category
VI by "moving incrementally down the sentencing table to the next
higher offense level in Criminal History Category VI until [the court]
finds a guideline range appropriate to the case." U.S.S.G.
§ 4A1.3(a)(4)(B).
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from Criminal History Category VI was reasonable. Because the
court’s departure from the advisory guidelines range was substantial,
however, and because the court failed to make incremental findings
as required by the Sentencing Guidelines at § 4A1.3, a more rigorous
sentencing analysis is required. We thus vacate the sentence and
remand to the district court for further proceedings.
VACATED AND REMANDED
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