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931 F.2d 3

Docket No. 90-2226.

United States v. Moore

First Circuit Court of Appeals

Heard April 4, 1991.

Decided April 23, 1991.

First Circuit Court of Appeals · decided 1991-04-23

Cited by 6 later decisions — most recently January 1994

5 federal appellate · 1 district ·

2 counsel of record

Key passage — most relied on by later courts

“contemplate[d] that there may, on occasion, be a case of an egregious, serious criminal record in which even the guideline range for a Category VI criminal history is not adequate to reflect the seriousness of the defendant’s criminal history. In such a case, a decision above the guideline range for a defendant with a Category VI criminal history may be warranted.”

quoted by 1 later decision, including United States v. Lebon

Applies 18 U.S.C. § 1708

Relies on Nicholas v. United States · United States v. Diaz-Villafane · Toibb v. Radloff

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1991-04-23

View the full empirical analysis of this case →

¶1*4Rubin G. Segal, Portland, Me., argued, for defendant, appellant.

¶2Nicholas M. Gess, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., and F. Mark Teri-son, Asst. U.S. Atty., Portland, Me., were on brief, for the U.S.

¶3PER CURIAM.

¶4This is a single issue criminal appeal wherein defendant-appellant James Owen Moore assigns error to the district court’s resort to an upward departure in formulating Moore’s sentence. We affirm.

¶5On September 18, 1990, Moore pled guilty to three counts charging possession of stolen mail (viz., United States Treasury checks) in violation of 18 U.S.C. § 1708. A presentence report was ordered. After considering objections to it, the court fixed the net offense level at 4 and the defendant’s criminal history category (CHC) at V. These calculations (to which no party objects on appeal) resulted in a guideline sentencing range (GSR) of 4-10 months.

¶6The district court departed upward, sentencing Moore to 16 months in prison. The court made particularized findings and stated its reasons for departing in meticulous detail. To summarize, the court noted that, while defendant had received a criminal history score (CHS) of 10, placing him in CHC Y, no fewer than 23 other potential CHS points were, for a variety of reasons, not included in the CHC computation. Some convictions, for example, were screened out because they were remote in time, see, e.g., U.S.S.G. § 4A1.2(e)(2), and others were excluded because they had culminated in short sentences, see U.S.S.G. § 4Al.l(c). The court supportably found, however, that several of these convictions evidenced “similar misconduct” and that others “reveal[ed] the same sort of dishonesty and misappropriation of other people’s property” as characterized the offenses for which Moore stood in the dock. Accordingly, the court ruled that it had a right to consider both sets of “similar” convictions; that, based on them, CHC V gravely underrepresented Moore’s past criminality; and that, considering his record, “th[e] defendant has a severe likelihood of repeating his criminal behavior that is not adequately reflected” in the CHS or the GSR. Deciding, therefore, that a departure was appropriate, the court went on to make specific findings as to the proper extent of the departure to be utilized (explaining, for example, why moving to CHC VI would “still fail[] to reflect adequately either the seriousness of the defendant’s criminal history or the likely recidivism”).

¶7This case, we believe, is close to a textbook model for departure jurisprudence. The court below made detailed findings, adequately anchored in the record. It articulated and applied the proper methodology, first established in United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). It isolated and identified a set of circumstances sufficiently “unusual” to warrant departure. See, e.g., United States v. Aymelek, 926 F.2d 64, 72-73 (1st Cir.1991); United States v. Ocasio, 914 F.2d 330, 334-35 (1st Cir.1990); United States v. Brown, 899 F.2d 94, 97 (1st Cir.1990).1 It then determined that those circumstances actually existed in *5Moore’s case.2 Finally, the court took care in measuring the actual departure, “explain[ing] succinctly the reasons for the degree of departure,” Ocasio, 914 F.2d at 337, and offering a well-thought-out rationale for the sentence imposed. The judge, in short, appears to have considered and weighed all the relevant factors and reached a reasonable resolution. No more was required.3

¶8We need go no further. We have said before, and today reaffirm, that in those comparatively few eases where a departure from the GSR is warranted, the emphasis should be on ascertaining that the sentence actually imposed was “fair and reasonable.” Aymelek, at 70. We are satisfied that the standard was fully met in this case and that Moore’s sentence was neither disproportionate nor unlawful.

¶9The conviction and sentence are affirmed.

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