United States of America v. Scott Michael Barber

*The Honorable Edmund A. Sargus, Jr., United States District Judge
for the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0013P (6th Cir.)
File Name: 00a0013p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
S COTT M ICHAEL BARBER,
Defendant-Appellant.
;>

1
No. 98-1558
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 97-00091—Gordon J. Quist, District Judge.
Argued: May 19, 1999
Decided and Filed: January 11, 2000
Before: NORRIS and COLE, Circuit Judges; SARGUS,
District Judge.*

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2 United States v. Barber No. 98-1558
_________________
COUNSEL
ARGUED: Craig A. Frederick, Grand Rapids, Michigan, for
Appellant. Daniel Y. Mekaru, OFFICE OF THE U.S.
ATTORNEY FOR THE WESTERN DISTRICT OF
MICHIGAN, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Craig A. Frederick, Grand Rapids, Michigan,
for Appellant. Daniel Y. Mekaru, OFFICE OF THE U.S.
ATTORNEY FOR THE WESTERN DISTRICT OF
MICHIGAN, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
SARGUS, District Judge. Defendant, Scott Michael
Barber, entered a plea of guilty to a violation of 18 U.S.C.
§922(g)(1), charging him with knowingly possessing a
firearm as a convicted felon. At sentencing, the district court
granted the Government’s motion for an upward departure
based upon its determination that the defendant’s criminal
history failed to reflect the seriousness of his past criminal
conduct. The district court departed upward by three offense
levels and sentenced the defendant to a term of incarceration
of 96 months.
Defendant, Scott Michael Barber, raises two issues on
appeal. The defendant asserts that the district court abused its
discretion by granting an upward departure. The defendant
also appeals the decision of the district court to depart upon
the offense level axis as opposed to the criminal history
category.
I.
On November 11, 1997, defendant entered into a written
plea agreement which stated in paragraph 4:
No. 98-1558 United States v. Barber 11
IV.
Based upon the foregoing, this Court concludes that the
district court did not abuse its discretion in determining that
the defendant’s criminal history did not adequately represent
his past criminal conduct or the likelihood that he would
commit other crimes. This Court further finds that the trial
court’s upward departure by three offense levels was
warranted by the circumstances of this case and was not an
abuse of discretion. Finally, this Court concludes that the trial
court’s use of the offense level axis, rather than criminal
history category, as a basis for departure premised on the
defendant’s criminal history was not erroneous under the
circumstances of this case.
The judgment of the district court is therefore
AFFIRMED.

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10 United States v. Barber No. 98-1558
3The Government also contends that the defendant did not object to
the district court’s use of offense levels rather than criminal history
categories to depart and has, therefore, waived the right to raise this issue
on appeal, absent plain error or defects affecting substantial rights under
Federal Rule of Criminal Procedure 52(b). The district court granted the
Government’s motion for an upward departure, which had expressly
requested an increase in the defendant’s criminal history category, rather
than an increase in the offense level. While this Court finds no
procedural fault in the method used by the district court in imposing
sentence, it does note that this issue raised on appeal resulted from the
trial court’s use of the offense level axis as a basis for upward departure,
an issue not addressed in the Government’s motion. Because the
defendant and his counsel were advised of this aspect of the Court’s
ruling at the time of sentencing, there is no requirement that the defendant
object following sentencing. Thus, failure to object after sentencing does
not waive an opportunity to raise this issue on appeal. Unlike a
circumstance in which a defendant has failed to object to one or more
provisions of a presentence investigation report, the conclusions reached
by the district court were not submitted in advance with an opportunity to
object prior to final sentencing. Under Federal Rule of Criminal
Procedure 32, all parties receive the presentence report and may make
objections in advance of sentencing. While the failure to object to a
provision of a presentence investigation report waives appellate review of
any issues other than plain error, United States v. Koeberlein, 161 F.3d
946 (6th Cir. 1998), this issue involves a decision of the sentencing judge,
rather than an adaptation of a provision of a presentence report.
While the Government assumes that a departure from the
defendant’s original offense level rather than criminal history
category based on prior criminal conduct was error, this Court
is of a different view.3 The precise language of U.S.S.G.
§4A1.3 encourages a district court to “consider imposing a
sentence departing from the otherwise applicable guideline
range.” This language does not limit a court to departing in
the criminal history category alone and does not prohibit a
court from using an increase in the offense level to
accomplish the same result. This is particularly true when the
district court articulated the fact that by increasing the offense
level, it was reaching the same result as if it increased by two
levels the criminal history category. In this context, this
Court is of the view that to reverse a departure on such basis
would elevate form above substance.
No. 98-1558 United States v. Barber 3
The Defendant understands that, if the Court accepts his
plea of guilty, his sentence will be computed under the
United States Sentencing Guidelines. Further, the
Defendant understands that the final determination
concerning the calculation of his sentence will be made
by the Court after its review of the facts and of any report
prepared by the United States Probation Office. He also
understands that in certain situations, the Court may
depart from the Guidelines.
(Joint Appendix (“JX”), 18.)
The district court accepted defendant’s plea of guilty and
approved the terms and conditions of the plea agreement. The
presentence report thereafter completed details the
defendant’s extensive criminal history beginning at age
twelve and extending to the time of conviction in this case.
The presentence report documents that the defendant was
convicted of fifteen criminal offenses from 1984 through
1996 including larceny, malicious destruction of property,
breaking and entering, making a false bomb threat, receiving
and concealing stolen property, unlawful use of marijuana,
carrying a concealed weapon, and resisting and obstructing a
police officer. Based upon these convictions, the probation
officer concluded in the presentence investigation report that
the defendant’s prior convictions placed him in a criminal
history category of IV. The defendant made no objection to
the computation set forth in the presentence investigation
report.
The probation officer included the following in the
presentence investigation report:
The Court may wish to consider the defendant’s
extensive criminal record dating back to the age of 12, as
a means of imposing an upward departure from the
applicable guideline range of imprisonment pursuant to
U.S.S.G. §4A1.3. Mr. Barber has been convicted of a
wide range of misdemeanor and felony offenses and it

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4 United States v. Barber No. 98-1558
appears no measure of punishment has been able to deter
him from committing crimes.
(JX 127.)
Prior to sentencing, the United States filed a motion for an
upward departure. Specifically, the Government contended
that the defendant’s criminal history category did not
adequately reflect the seriousness of the defendant’s past
criminal conduct or the likelihood that he will commit other
crimes, as referenced in U.S.S.G. §4A1.3. The Government
further noted that the defendant received no points for his first
nine convictions due to the fact that he was a minor at the
time the offenses were committed. Further, the defendant was
on lifetime parole in the State of Alabama at the time the
offense of conviction occurred. The Government
recommended an upward departure in the defendant’s
criminal history category from a category IV to VI.
At the sentencing hearing, the district court stated:
I find that your Criminal History Category does not
adequately reflect your past criminal behavior or the
likelihood that you will commit other crimes.
. . .
Putting aside the crimes that were committed when you
were 12 years old, you have been committing crimes
since you were 14 years old. You’ve been a person who
will simply not obey the law.
. . .
You were sentenced to life imprisonment in Alabama
and then released on lifetime parole. Yet, you went back
and committed several crimes right after that upon your
release.
(JX 86-87.) The district court summarized the defendant’s
criminal history as “unrelenting unremitting lawlessness.”
(JX 82.)
No. 98-1558 United States v. Barber 9
The fact that the defendant received two additional points
for committing the instant offense while on parole does not
prohibit the district court from basing a departure on such
circumstances. District courts may consider the length of the
term of probation, the temporal proximity to the instant
offense, and the basis for probation in the first instance. In
this case, the term of probation was for life, the instant
offense occurred shortly after the imposition of probation, and
the underlying criminal offense leading to probation was
serious. By way of example, a defendant may be serving a
four year term of probation for passing a series of bad checks.
If a new conviction resulted in the fourth year of probation,
this hypothetical defendant would receive the same points in
computing criminal history as the defendant in this case. To
insure that very dissimilarly situated defendants are not
accorded the same criminal history points, the Sentencing
Guidelines wisely encourage a district court to consider
whether the criminal history computation is truly reflective of
a defendant’s past. For these reasons, this Court concludes
that the district court did not abuse its discretion in granting
an upward departure under U.S.S.G. §4A1.3.
III.
The defendant asserts that the district court erred in
departing three levels on the offense level axis, rather than the
criminal history categories, when the stated reasons for
departure had to do with prior or future criminal conduct.
While the district court based its departure on the defendant’s
criminal history, it increased the defendant’s offense level,
rather than his criminal history category. The district court,
however, was well aware that the increase in the offense level
which it imposed resulted in the identical sentencing range as
if the court had simply increased the defendant’s criminal
history category by two levels, from IV to VI. The district
court expressly stated in granting the Government’s motion
for an upward departure that adding a three level increase in
the offense level resulted in the same sentencing range that
would result by increasing the defendant’s criminal history
category from IV to VI.

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8 United States v. Barber No. 98-1558
2The charge of fleeing a police officer was dismissed.
in a motor vehicle.2 Two years later, he was convicted of
carrying a concealed weapon and resisting and obstructing a
police officer. One month later, the defendant was convicted
of three counts of breaking and entering with intent to commit
larceny.
From this, the trial court concluded that the defendant had
been committing crimes since early in his youth and
continued to do so until the offense of conviction. The fact
that he was released from prison in Alabama and placed on
lifetime parole had no deterrent effect on his future criminal
conduct.
The defendant contends that the trial court improperly
relied upon nine juvenile criminal adjudications which, under
U.S.S.G. §4A1.2, resulted in no criminal history points.
Further, the defendant contends that the district court should
not have considered an upward departure based on the fact
that he was serving a term of lifetime parole in the State of
Alabama, since the defendant received two additional points
for committing the instant offense while on parole. The
defendant contends that since these factors were already taken
into account by the Guidelines, such circumstance could not
provide a proper basis for departure.
These arguments ignore the fact that U.S.S.G. §4A1.3
explicitly contemplates and encourages a district court to
consider a defendant’s likelihood of recidivism together with
a more particularized consideration of the defendant’s past.
Further, U.S.S.G. §4A1.3 authorizes the Court to consider, in
addition to prior conviction, in the computation of criminal
history, “prior sentence(s) not used in computing the criminal
history category.” Other circuits have held that while juvenile
offenses may not be counted in computing criminal history,
such offenses may nonetheless be considered as part of a
recidivism inquiry. See United States v. Croom, 50 F.3d 433,
435 (7th Cir. 1995).
No. 98-1558 United States v. Barber 5
1Had the district court increased the defendant’s criminal history
from IV to VI, rather than increasing the offense level from 21 to 24, the
resulting guideline range would be the same, that being 77 to 96 months.
Based upon its findings that the defendant’s criminal
history did not adequately represent his past criminal
behavior, the district court granted the Government’s motion
for an upward departure and increased the offense level from
21 to 24. The district court also explained that, “looked at
another way, it’s an increase in criminal history category to
VI.”1
II.
This Court reviews a district court’s decision to depart from
the Sentencing Guidelines for abuse of discretion. This Court
recently described the seminal decision in Koon v. United
States, 518 U.S. 81 (1996), as follows:
Because questions concerning sentencing departures
necessarily address the district court’s “refined
assessment of the many facts bearing on the outcome,
informed by its vantage point and day-to-day experience
in criminal sentencing,” we normally accord substantial
deference to the district court’s judgment on the matter.
Nevertheless, “the deference that is due depends on the
nature of the question presented.” When the question is
“whether a factor is a permissible basis for departure . . .
the courts of appeals need not defer to the district court’s
resolution of the point.”
United States v. Pluta, 144 F.3d 968, 977 (6th Cir.
1998)(quoting Koon, 518 U.S. at 98, 100)(internal citations
omitted)).
As the Sentencing Reform Act of 1984, 18 U.S.C. §3551,
together with the implementing Sentencing Guidelines make
clear, a district court must sentence within the Guidelines
range “unless the Court finds that there exists an aggravating
or mitigating circumstance of a kind, or to a degree, not

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6 United States v. Barber No. 98-1558
adequately taken into consideration by the Sentencing
Commission in formulating the Guidelines that should result
in a sentence different from that prescribed.” 18 U.S.C.
§3553(b); see also U.S.S.G. Ch. 1, Pt. A4(b). As the
Supreme Court explained in Koon, a sentencing court
considering a departure should address the following
questions:
1) What features of this case, potentially, take it outside
the Guidelines’ “heartland” and make of it a special, or
unusual case?
2) Has the Commission forbidden departures based on
those features?
3) If not, has the Commission encouraged departures
based on those features?
4) If not, has the Commission discouraged departures
based on those features?
Koon, 518 U.S. at 95(quoting United States v. Rivera, 994
F.2d 942, 949 (1st Cir. 1993)). While the order of these
questions guides the district court, for this Court to determine
the appropriate standard of review, the analysis must initially
address whether the basis for departure is prohibited,
encouraged, or discouraged by the Sentencing Guidelines.
If the district court has departed from the Sentencing
Guidelines based upon a prohibited factor (such as a
defendant’s race, sex, national origin, creed, religion, or
socio-economic status, factors prohibited by U.S.S.G.
§5H1.10) this Court’s analysis is complete and the sentence
must be reversed. Much more likely, if the Sentencing
Guidelines have not prohibited departures based on what the
district court has determined to be one or more unusual
aspects of the case, this Court must then consider whether the
basis for the departure is encouraged or discouraged by the
Sentencing Guidelines.
The motion filed by the Government seeking an upward
departure made specific reference to U.S.S.G. §4A1.3 which
states that if “[t]he criminal history category does not
No. 98-1558 United States v. Barber 7
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.” The district court expressly cited this provision of the
Guidelines and found that the defendant’s completed criminal
history neither adequately reflected the seriousness of his past
criminal conduct nor did it indicate the likelihood that he
would commit other crimes.
Given the formulation set forth in U.S.S.G. §4A1.3, it is
clear that the Sentencing Guidelines do not prohibit
departures based upon a finding that the criminal history
computation is simply not representative of a defendant’s past
criminal behavior nor indicative of future unlawful conduct.
As this Court concluded in United States v. Pluta, 144 F.3d
at 877, a departure upon this basis is expressly encouraged by
the Sentencing Guidelines.
Because the basis for the departure by the sentencing court
was an encouraged factor under the Guidelines, we review the
decision of the trial court to depart for an abuse of discretion.
United States v. Bond, 171 F.3d 1047 (6th Cir. 1999); United
States v. Koeberlein, 161 F.3d 946 (6th Cir. 1998). As noted
by the Supreme Court, “[a] district court’s decision to depart
from the Guidelines . . . will in most cases be due substantial
deference, for it embodies the traditional exercise of
discretion by a sentencing court.” Koon, 518 U.S. at 98.
The sentencing court based its decision to grant an upward
departure on an abundance of prior criminal conduct
committed by the defendant. At the time of sentencing, the
defendant was 26 years old. Prior to sentencing, he had been
sentenced to life imprisonment in Alabama and was released
on February 14, 1994 on lifetime parole. Only a few months
later, on May 17, 1994, he was charged with driving with a
suspended license, fleeing a police officer and having alcohol

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