United States v. Robertson

                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 19, 2009
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                     No. 08-3126
 ANTONIO ROBERTSON,

       Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. No. 2:07-CR-20153-KHV)

Terrence J. Campbell, Barber Emerson, L.C., Lawrence, Kansas, for Defendant-
Appellant.

Leon Patton, Assistant United States Attorney (Marietta Parker, Acting United States
Attorney, with him on the briefs), Kansas City, Kansas, for Plaintiff-Appellee.

Before O’BRIEN and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.

BALDOCK, Circuit Judge.


      A report of suspected drug-dealing activity led police officers to an

intersection in Kansas City, Kansas at which they found Defendant Antonio

Robertson and another individual standing outside a parked car. Upon observing an

unknown party leaving the area in a Ford Explorer, officers executed a stop of the
vehicle and obtained a small baggie of marijuana from its driver.

      For safety purposes, officers ordered Defendant and his companion to stand

against a wall, while they assessed the situation. Defendant subsequently engaged

in a conversation on his cell phone and repeatedly walked away from the wall. After

multiple warnings, officers decided to arrest Defendant for obstruction, but when

they attempted to handcuff Defendant he pulled away, revealing a pistol in his

waistband. Eventually officers managed to handcuff Defendant and recover the gun,

which turned out to have been stolen during a residential burglary. Police also

uncovered a bottle of phencyclidine or PCP on Defendant’s person. Federal agents

later discovered, through a records check, that Defendant had several prior felony

convictions.

      A grand jury ultimately indicted Defendant for being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1), and Defendant pled guilty, pursuant

to a written plea agreement. Departing upward from the recommended Guidelines

range of 18 to 24 months, the district court sentenced Defendant to 41 months’

imprisonment. See United States v. Sells, 541 F.3d 1227, 1237 n.2 (10th Cir. 2008)

(explaining that a “departure” occurs when a district court reaches a sentence above

or below the recommended Guidelines range through the application of Chapters

Four and Five of the Sentencing Guidelines, whereas a “variance” occurs when a

district court reaches a sentence that differs from the recommended Guidelines range

through the application of the factors outlined in 18 U.S.C. § 3553(a)). On appeal,

                                         2
Defendant disputes the reasonableness of that sentence. Exercising jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.

                                          I.

      We begin with a brief summary of the Presentence Report (PSR) and the

district court’s rationale for imposing a 41-month sentence. Calculating Defendant’s

total offense level at 13 and his criminal history category at III, the PSR adopted a

recommended Guidelines range of 18 to 24 months’ imprisonment. The PSR noted,

however, that the “nature of the defendant’s offense, his prior arrests involving the

use of firearms, his substance abuse history with PCP, and his high risk to

recidivate” could present grounds for an upward departure under United States

Sentencing Guidelines (U.S.S.G.) § 4A1.3.

                                          A.

      According to the PSR, Defendant’s criminal history began at age 14 and

spanned, at the time of his arrest, approximately half of his 29 years of life. Most

of Defendant’s criminal convictions involved drugs or guns. Parole records revealed

multiple instances in which Defendant’s probation was revoked. The PSR also noted

that the Government was compelled to dismiss multiple charges against Defendant

because key prosecution witnesses failed to appear. Two of these charges largely

precipitated the district court’s upward departure in this case and are thus central to

the resolution of this appeal.

      At age 20, Defendant was charged with Criminal Discharge of a Firearm at an

                                          3
Occupied Dwelling. On that occasion Defendant drove to a Kansas City residence

with an individual known as JJ, threatened its occupants, and proceeded to shoot

randomly at the house — as well as a vehicle entering the driveway — with a semi-

automatic handgun. Defendant continued to fire shots in several directions while

exiting the scene.     Seven years later, Defendant was charged with Criminal

Discharge of a Firearm at an Occupied Vehicle. This time Defendant and JJ drove

behind a vehicle with two passengers and fired shots into the car, causing the driver

to strike and injure the occupants of a third vehicle. As his targets fled the scene on

foot, Defendant again opened fire.

                                          B.

      At sentencing, the district court inquired whether Defendant or the

Government had any objections to the PSR, which contained the foregoing

description of Defendant’s criminal past. Transcript of Sentencing Proceedings of

May 5, 2008 (Sentencing Transcript) at 2-3. No objection was forthcoming, which

led the district court to consider Defendant’s and the Government’s request that it

impose a sentence at the low end of the 18 to 20 month Guidelines range.1 See id.

at 2-3, 12. Almost immediately, the district court put the parties on notice that it was

inclined to upwardly depart from the recommended Guidelines range based on

§ 4A1.3(a) of the Guidelines. See id. at 3-4. Section § 4A1.3(a) allows for upward


      1
        In exchange for Defendant’s guilty plea, the Government agreed to
recommend a sentence at the low end of the applicable Guidelines range.

                                           4
departures in cases in which a defendant’s criminal history category either

substantially under-represents the seriousness of his criminal history or the

likelihood that he will commit other crimes.

      The district court first listened to Defendant’s and his counsel’s response. It

then explained, as follows, why it continued to believe an upward departure was

appropriate:

                       You know, I realize that your life started . . . with a
               lot of problems and you didn’t have good supervision from
               parents and sort of got off on the wrong track. But I’m
               also looking at this record which shows that you have a
               long history of carrying weapons, using weapons in a
               violent way. Basically, you’ve got a history of drug use,
               you’ve got [a] serious past criminal record, and you
               haven’t performed well under supervision.
                       It looks to me when I look at all of the factors
               contained, that you have a very high likelihood of
               committing other crimes and that you haven’t been
               punished by the Courts in a way that’s caused you to really
               take stock of where your life is going and make any
               serious effort to get your life on a different track.
               ...
                       [Paragraphs] 48 and 50 [of the PSR] I think it was
               — yes, the victims failed to appear. Those were criminal
               discharge of a firearm at an occupied dwelling and
               criminal discharge of a firearm in a occupied vehicle. One
               of those was only three years ago.
               ...
                       And, you know, I’m going to give counsel an
               opportunity to comment on this, but it does appear to me
               that when you look at . . . all of the circumstances, that the
               defendant’s criminal history category does not adequately
               reflect the seriousness of his entire past criminal record or
               the likelihood that he will commit other crimes.
                       And even though he’s in a criminal history category
               of 3, the record here more closely resembles what I

                                             5
              typically see in a criminal history category of 6. If we
              were to sentence him under that kind of guidelines scheme,
              the sentence we would be looking at would be in the
              guideline range of 33 to 41 months instead of 18 to 24.

Id. at 13-16. In reply, defense counsel implored the district court not to consider the

charges dismissed against his client, citing the fact that Defendant had “never been

proven guilty of those offenses.” Id. at 16. But counsel acknowledged that if

Defendant had been convicted of discharging a firearm at an occupied dwelling and

vehicle, his criminal history category would have been VI. See id.

       Despite counsel’s protestations the district court remained convinced that an

upward departure was appropriate and it, accordingly, proposed a sentence of 41

months’ imprisonment followed by three years of supervised release. See id. at 18.

In the district court’s view, Defendant’s extensive criminal history and poor

performance on probation were not adequately represented by a criminal history

category of III. A much better match, in its mind, was a criminal history category

of VI, as the district court illustrated:

                     [D]efendant’s criminal behavior started at age 14;
              he’s presently 30 years old. He has a consistent history of
              carrying weapons; this is his sixth arrest involving
              firearms. He has two prior arrests involving firearms that
              were violent in nature. He’s relied on drug distribution as
              a means for supporting himself. He has a history of
              committing new offenses and using drugs on supervision.
              And I don’t believe that his criminal history category
              adequately reflects the seriousness of his criminal record
              or the likelihood that he will commit another [sic] crimes.
                     Therefore, the Court intends to depart upward and
              finds the criminal history category which more closely —

                                            6
             most closely resembles that of this defendant is a criminal
             history category of 6, which with a total offense level
             . . . of 13, would put him in a custody range of 33 to 41
             months.
                     I believe that a sentence at [that] level of the
             guidelines more appropriately addresses all of the
             sentencing factors contained in Section 3553(a)(2) because
             it more adequately reflects the seriousness of your offense,
             promotes respect for the law, provides just punishment,
             and protects the public, most importantly, from further
             crimes by you.

Id. at 17-18. After Defense counsel referenced his previous objections, the district

court found that the PSR was accurate and incorporated its findings into the court’s

ruling. See id. at 20-21. The district court then sentenced Defendant to 41 months’

incarceration, followed by three years of supervised release. See id. at 21.

                                         II.

      Before we reach the merits of Defendant’s sentencing challenge, we must

address our standard of review. Defendant’s only objection at his sentencing hearing

was to the district court’s consideration of unconvicted conduct. Consequently, the

Government contends that plain error review applies to any additional procedural

errors Defendant raises on appeal. See United States v. Martinez, 512 F.3d 1268,

1275 (10th Cir. 2008) (recognizing that a challenge to a district court’s departure

decision amounts to a claim of procedural error).     For his part, Defendant argues

that his request for a sentence within the suggested Guidelines range preserved every




                                          7
aspect of the district court’s upward departure for our review. 2       We think the

Government has the better of this argument.

      Fairness and judicial efficiency demand that litigants notify the district court

of a procedural sentencing error with reasonable specificity, thereby providing that

court the opportunity to correct its action in the first instance. See United States v.

Uscanga-Mora, 562 F.3d 1289, 1294 (10th Cir. 2009); United States v. Winder, 557

F.3d 1129, 1136 (10th Cir. 2009). When alerted to a possible error, the district court

may often remedy potential problems “easily and quickly.” Uscanga-Mora, 562 F.3d

at 1294. Otherwise, the parties and the courts waste substantial resources shuttling

cases “back and forth between the district court and court of appeals” in situations

where a minor correction would have completely obviated the need for an appeal.

Id.; see also United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (noting that

plain error review “reduce[s] wasteful reversals”).

      Unnecessary reversals based on procedural errors are of particular concern


      2
         Defendant points us to multiple cases recognizing that a unitary abuse of
discretion standard governs our review of a district court’s decision to upwardly
depart. See, e.g., United States v. Munoz-Tello, 531 F.3d 1174, 1186 (10th Cir.
2008). But, contrary to Defendant’s assertions, the fact that we employ a unitary
abuse of discretion standard in these circumstances does not preclude the application
of plain error review. After United States v. Booker, 543 U.S. 220 (2005), for
example, we review all sentencing decisions for an abuse of discretion. See United
States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). Yet, ordinary prudential
doctrines — including the plain error test — continue to apply. See Booker, 543
U.S. at 268 (“[W]e expect reviewing courts to apply ordinary prudential doctrines,
determining, for example, whether the issue was raised below and whether it fails the
‘plain-error’ test.”).

                                          8
given district courts’ enhanced sentencing discretion post-United States v. Booker,

543 U.S. 220 (2005). See United States v. Allen, 488 F.3d 1244, 1260 n.6 (10th Cir.

2007) (citing United States v. Wolfe, 435 F.3d 1289, 1296 (10th Cir. 2006)). The

rationale of the plain error rule thus clearly applies here. Moreover, the substantial

benefits the judicial system “derives from a contemporaneous objection” in the

sentencing context outweighs the “modest burden such a requirement imposes on

counsel.” Uscanga-Mora, 562 F.3d at 1294. We, consequently, agree with several

of our sister circuits that plain error review generally applies to unpreserved

procedural errors that arise in the context of a district court’s departure from the

recommended Guidelines range. 3 See, e.g., United States v. Walking Eagle, 553 F.3d

654, 657 (8th Cir. 2009); United States v. King, 454 F.3d 187, 193 (6th Cir. 2006);

United States v. Maurice, 69 F.3d 1553, 1556-57 (11th Cir. 1995).

      Requiring a contemporaneous objection to alleged procedural errors in the

sentencing context finds ample support in our precedents. See Uscanga-Mora, 562

F.3d at 1293 (providing examples). We have “consistently held” that “plain error

review obtains when counsel fails to render a contemporaneous objection” to a



      3
         Plain error review only applies in instances in which a defendant has “been
given, but has not taken advantage of, an opportunity to voice his or her objection.”
Uscanga-Mora, 562 F.3d at 1294 (citing Fed. R. Crim. P. 51(b)) (emphasis omitted).
If no such opportunity has been given, or raising an objection would clearly have
been futile, our normal standard of review applies. See id. In this case, the district
court provided Defendant with multiple opportunities to raise objections and every
indication suggests the court was ready and willing to address Defendant’s concerns.

                                          9
procedural sentencing error. 4 Id. Indeed, our cases addressing the procedural

reasonableness of sentences promulgated under 18 U.S.C. § 3553(a), and various

sections of the Guidelines, have routinely required defendants to specifically object

to a procedural error in order to preserve that issue for our review. See, e.g.,

Uscanga-Mora, 562 F.3d at 1292-93 (U.S.S.G. § 3B1.1(c)); United States v. Wilken,

498 F.3d 1160, 1174 (10th Cir. 2007) (U.S.S.G. § 4B1.1); United States v. Romero,

491 F.3d 1173, 1176 (10th Cir. 2007) (18 U.S.C. §§ 3553(a) & (c)); United States

v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006) (18 U.S.C. § 3553(a)).

      Defendant has presented us with no viable justification for exempting

procedural errors related to Guidelines departures from this general requirement. See

Uscanga-Mora, 562 F.3d at 1293-94.         Accordingly, unless Defendant lodged a

specific objection to a procedural error at sentencing, our review is limited to plain

error. Under that standard, we may reverse only if a defendant demonstrates an error

that is plain, which not only prejudices his substantial rights, but also seriously

affects the fairness, integrity, or public reputation of judicial proceedings. See



      4
         See, e.g., United States v. Mendoza, 543 F.3d 1186, 1191 (10th Cir. 2008)
(“A party must specifically object to the district court’s procedure in order to
preserve that issue for review.”); United States v. Romero, 491 F.3d 1173, 1178
(10th Cir. 2007) (“[B]ecause Romero did not object on procedural grounds under
§ 3553(a) or (c) . . . he has forfeited his right to appeal this issue and our review is
only for plain error.”); United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th
Cir. 2007) (“Because Mr. Ruiz-Terrazas did not object to the procedure by which his
sentence was determined and explained, we may reverse the district court’ judgment
only in the presence of plain error.”).

                                          10
United States v. Rivas-Macias, 537 F.3d 1271, 1281 (10th Cir. 2008).

                                         III.

      We now proceed to the merits of Defendant’s appeal. While some circuits

regard the Guidelines’ departure provisions as superfluous post-Booker, we have

steadfastly upheld their vitality and instructed district courts to continue to apply

them in “appropriate cases.” 5 United States v. Sierra-Castillo, 405 F.3d 932, 936 n.2

(10th Cir. 2005); see also United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215

(10th Cir. 2008). Indeed, we have concluded not only that the Guidelines departures

“survive Booker,” see United States v. Calzada-Maravillas, 443 F.3d 1301, 1305

(10th Cir. 2006), but also that our pre-Booker cases provide “the standard for when

to depart from the recommended [Guidelines] range.” United States v. Martinez-

Barragan, 545 F.3d 894, 900 (10th Cir. 2008). Our analysis of the propriety of an

upward departure is consequently guided by the traditional four-part test, which

inquires (1) whether the district court relied on permissible departure factors,



      5
         Compare United States v. Mohamed, 459 F.3d 979, 985-87 (9th Cir. 2006)
(concluding that after Booker the Guidelines’ departure provisions are obsolete);
United States v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005) (same), with United
States v. Jackson, 467 F.3d 834, 838-39 (3d Cir. 2006) (affirming the post-Booker
vitality of the Guidelines’ departure provisions); United States v. Dixon, 449 F.3d
194, 203-04 (1st Cir. 2006) (same); United States v. Moreland, 437 F.3d 424, 433
(4th Cir. 2006) (same); United States v. McBride, 434 F.3d 470, 476 (6th Cir. 2006)
(same); United States v. Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006) (same);
United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005) (same); United States
v. Sierra-Castillo, 405 F.3d at 936 n.2 (same); United States v. Crawford, 407 F.3d
1174, 1178 (11th Cir. 2005) (same).

                                         11
(2) whether those factors removed a defendant from the applicable Guidelines

heartland, (3) whether the record supports the district court’s factual bases for a

departure, and (4) whether the degree of departure is reasonable. See United States

v. Munoz-Tello, 531 F.3d 1174, 1186 (10th Cir. 2008).

      Defendant, in this appeal, challenges the district court’s departure analysis at

every stage of this four-part framework. Our analysis of Defendant’s preserved

errors proceeds under a “unitary abuse of discretion standard,” which affords

substantial deference to “factual questions,” but allows for “plenary review of

questions that are in essence legal.” Alapizco-Valenzuela, 546 F.3d at 1215-16; see

also United States v. Whiteskunk, 162 F.3d 1244, 1249 (10th Cir. 1998). To prevail

on unpreserved claims, however, Defendant must clear the more arduous hurdles set

by the plain error test. See United States v. Toro-Pelaez, 107 F.3d 819, 827 (10th

Cir. 1997). We will now address, with these standards in mind, each of Defendant’s

contentions in turn.

                                         A.

      Pointing to the district court’s focus on conduct involving firearms for which

he was arrested but never convicted, Defendant questions the propriety of the factors

the district court relied upon in reaching its decision to upwardly depart. Because

Defendant objected on this ground at his sentencing hearing, our review is for an

abuse of discretion. We conclude Defendant’s unconvicted conduct provided the

district court with an appropriate grounds for departure under U.S.S.G.

                                         12
§ 4A1.3(a)(2)(E).

      The goal of every sentencing proceeding is to fashion an individualized

sentence that accounts for the unique facts of each case, which sometimes mitigate

and sometimes magnify the crime and thus the ensuing punishment.                See

Whiteskunk, 162 F.3d at 1252.       In keeping with this essential purpose, the

Sentencing Commission included flexibility in the Guidelines framework to

accommodate “unusual cases outside the range of the more typical offenses for

which the [G]uidelines were designed.” Id.       Thus, even under the Guidelines,

district courts possess substantial discretion to fashion an appropriate sentence by

departing from the prescribed sentencing range. See United States v. Jackson, 921

F.2d 985, 991 (10th Cir. 1990) (en banc). We have, for example, acknowledged that

district courts may, in appropriate cases, upwardly depart based on reasons not

specifically listed in the Guidelines. See, e.g., United States v. Concha, 294 F.3d

1248, 1252 n.4 (10th Cir. 2002); United States v. Stumpf, 938 F.2d 172, 174 (10th

Cir. 1991). But, happily for us, nothing so remarkable is at issue here, as the

district court predicated its upward departure on grounds specifically contemplated

by the Guidelines.

      Section 4A1.3(a)(1) of the Guidelines allows for upward departures where

reliable information indicates a defendant’s criminal history category substantially

under-represents either the seriousness of a defendant’s criminal history, or the

likelihood that he will commit additional crimes. See United States v. Akers, 215

                                        13
F.3d 1089, 1105 (10th Cir. 2000). One example of “reliable information” justifying

such a departure is prior, adult, unconvicted conduct that is similar in nature to the

instant offense. See U.S.S.G. § 41A.1(a)(2)(E). Defendant does not contest that

prior, similar, adult, criminal conduct “may provide a valid basis for an upward

departure to a higher criminal history category.” United States v. Flinn, 987 F.2d

1497, 1500 (10th Cir. 1993). Rather, he argues the district court erroneously relied

on his arrest record in reaching its decision to upwardly depart. See U.S.S.G.

§ 4A1.3(a)(3) (“A prior arrest record itself shall not be considered for purposes of

an upward departure . . . .”).

      Defendant is, of course, correct that the mere fact that he was arrested for

certain crimes relating to the illegal use of a firearm could not serve as valid grounds

for an upward departure under § 4A1.3(a). See id. But nothing in the Guidelines

excludes the district court from considering the conduct underlying those arrests and

it is Defendant’s violent conduct, not his arrest record itself, which spurred the

district court to upwardly depart from the recommended Guidelines range. 6 To be


      6
         See, e.g., United States v. Matheny, 450 F.3d 633, 642 (6th Cir. 2006) (“We
agree with our sister circuits that district courts may consider prior arrest records
only when the PSR provides specific facts surrounding the arrest.”); United States
v. Hawk Wing, 433 F.3d 622, 628 (8th Cir. 2006) (“[W]e and other circuits have held
that the PSR must . . . provide specific facts underlying the arrests in order for the
arrest record to justify an upward departure; otherwise, the district court may not rely
on a mere record of arrest.”); United States v. Dixon, 318 F.3d 585, 591 (4th Cir.
2003) (noting that “a district court must rely on the facts underlying the arrests,”
rather than the “prior arrest record itself”); United States v. Miller, 263 F.3d 1, 4 n.3
                                                                           (continued...)

                                           14
clear, all that is precluded from consideration by § 4A1.3(a)(3) is a district court’s

reliance “on bare reports of prior arrests.” United States v. Berry, 553 F.3d 273, 281

(3d Cir. 2009). The facts underlying those arrests are fair game. See United States

v. Fuller, 15 F.3d 646, 651 (7th Cir. 1994). In this case, Defendant’s PSR recounted

the factual bases for his arrests for Criminal Discharge of a Firearm in some detail

and the district court was free to rely on these facts to depart upward under

§ 4A1.3(a)(2)(E). See United States v. Mateo, 471 F.3d 1162, 1167 (10th Cir. 2006).

      Defendant also contends that the district court erred in considering the nature

of the instant offense, i.e. that it involved a firearm, in departing upward from the

recommended Guidelines range. 7 We note that, contrary to Defendant’s apparent

assumption, not every consideration of an improper, departure factor necessitates a

remand. See Williams v. United States, 503 U.S. 193, 203 (1992) (“[I]n determining

whether a remand is required . . . a court of appeals must decide whether the district

court would have imposed the same sentence had it not relied upon the invalid factor

or factors.”). But in this case such considerations are immaterial as the district

court’s reflection upon the nature of Defendant’s current offense was appropriate,

      6
        (...continued)
(2d Cir. 2001) (explaining that § 4A1.3(a)(3)’s prohibition on the consideration of
arrest records “does not, of course, mean that the conduct underlying such arrests
may not be considered”); United States v. Fuller, 15 F.3d 646, 651 (7th Cir. 1994)
(“[D]istrict courts may not rely on defendants’ prior arrest records . . . but rather
must rely on the facts underlying the arrests.”).
      7
         Because Defendant failed to raise this argument in the district court, our
review is for plain error. In this instance, we identify no error, plain or otherwise.

                                         15
if not required.

      An upward departure under § 4A1.3(a)(2)(E) is only befitting if a defendant’s

prior, adult, criminal conduct is sufficiently similar to that underlying the instant

offense. See United States v. Ramirez, 11 F.3d 10, 13 (1st Cir. 1993); see also

United States v. Bridges, 175 F.3d 1062, 1072 (D.C. Cir. 1999) (noting that U.S.S.G.

§ 4A1.3 directs district courts “to determine not whether the defendant’s ‘offenses’

are similar but whether his ‘conduct’ is”). Comparisons between the facts underlying

the current offense and a defendant’s prior conduct are inevitable under this

standard, as the Guidelines’ rationale for recidivist departures rests on the connection

between the conduct underlying a defendant’s current and past offenses. 8 See United

States v. Mentzos, 462 F.3d 830, 841 (8th Cir. 2006). Indeed, relapsing “into the

same criminal behavior” is only particularly blameworthy because it demonstrates

a defendant lacks “recognition of the gravity of his original wrong,” thus entailing


      8
          As our sister circuit explained:

              “[An upward] departure is warranted when 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.
              The accuracy of such a prediction about future behavior
              can only be enhanced by permitting the court to compare
              past offenses to exactly what it is the defendant has just
              done . . . . A judge with such license is surely more likely
              to be able to discern a pattern in a defendant’s behavior
              than one who must peer with blinders on.”

      Bridges, 175 F.3d at 1072 (citations and emphasis omitted).

                                             16
“greater culpability for the offense with which he is currently charged,” and

suggesting “an increased likelihood that the offense will be repeated yet again.”

United States v. Jackson, 903 F.2d 1313, 1320 (10th Cir. 1990) (quoting United

States v. DeLuna-Trujillo, 868 F.2d 122, 125 (5th Cir. 1989)). We, therefore, reject

Defendant’s contention that the district court’s consideration of the conduct

underlying his current offense was somehow improper. See United States v. Dixon,

318 F.3d 585, 590-91 (4th Cir. 2003).

                                         B.

      Defendant also challenges the district court’s conclusion that unique factors

removed his case from the applicable Guidelines heartland. Because Defendant

failed to lodge a contemporaneous objection on this ground at sentencing, plain error

review applies. We are unable to locate any such error. Under the facts of this case,

the district court was well within the bounds of its discretion in determining that

Defendant’s criminal history and propensity to recidivate placed him outside the

“‘heartland’ of typical cases considered by the Sentencing Commission when it

drafted the Guidelines.” Martinez-Barragan, 545 F.3d at 900.

      Substantial deference is due the district court’s determination that unique

factors place a defendant outside of the Guidelines heartland. See United States v.

Proffit, 304 F.3d 1001, 1011 (10th Cir. 2002); United States v. Walker, 284 F.3d

1169, 1172 (10th Cir. 2002).       We take due account of the district court’s

“institutional advantage” in making “these sorts of determinations,” United States

                                         17
v. Shumway, 112 F.3d 1413, 1427 (10th Cir. 1997), and limit our review “to

determining whether the factual circumstances from the vantage point of the district

court make this the atypical case.” Proffit, 304 F.3d at 1011. This standard accounts

for the district court’s “extensive experience in applying the Guidelines,” a

familiarity we lack. Shumway, 112 F.3d at 1427.

      Here, the district court regarded Defendant’s unconvicted conduct involving

firearms — some of it remarkably violent — as giving him greater culpability for

being a felon in possession of a firearm than a defendant in the run-of-the-mill case.

See Munoz-Tello, 531 F.3d at 1190 (recognizing that an upward departure may be

predicated on a district court’s “concern for human safety and the sanctity of life”).

The district court also suggested that Defendant’s long criminal history and poor

performance on probation demonstrated a marked recidivist intransigence that

required firm correction. See United States v. Goings, 200 F.3d 539, 542 (8th Cir.

2000) (allowing district courts to account for “a heightened need for deterrence,”

“evidence of obvious incorrigibility,” and the fact that “leniency has not been

effective”). We cannot say that, in so ruling, the district made a “clear error of

judgment” or “exceeded the bounds of permissible choice in the circumstances.”

Whiteskunk, 162 F.3d at 1253.

                                         C.

      With an eye to the sufficiency of the evidence establishing the conduct which

underlay his arrests for Criminal Discharge of a Firearm, Defendant disputes the

                                         18
district court’s assumption that he was guilty of these misdeeds. We construe this

argument as a claim that the factual bases for the district court’s departure decision

are not adequately supported by the record. Although we are willing to assume that

Defendant’s objection to the district court’s consideration of unconvicted conduct

preserved this issue for our review, the relief Defendant seeks will not spring from

this fallow ground.

      We recognize that the only evidence in the record in support of the district

court’s factual findings was the PSR, which provided a summary of the conduct

underlying Defendant’s arrests. See Wolfe, 435 F.3d at 1299. But Defendant never

objected to the PSR’s factual contentions. See id. Our precedent is clear that,

outside the Booker context, district courts are free to accept “uncontested facts

contained in the PSR” for purposes of sentencing. Mateo, 471 F.3d at 1166; see also

United States v. Harris, 447 F.3d 1300, 1306 (10th Cir. 2006); Wolfe, 435 F.3d at

1299. A contrary conclusion is precluded by Federal Rule of Criminal Procedure

32(i)(3)(A), which expressly allows district courts to “accept any undisputed portion

of the presentence report as a finding of fact.” See Wolfe, 435 F.3d at 1299.

Defendant’s contention that the district court lacked an adequate basis in the record

for departing on its chosen grounds is, consequently, without merit.

                                         D.

      Finally, we address Defendant’s claim that the district court failed to

adequately explain the reasons for its three-level upward departure. Defendant did

                                         19
not object to the district court’s explanation for its departure decision at sentencing.

We, accordingly, review only for plain error.

      A district court’s decision to depart from the Guidelines is normally entitled

to “substantial deference.” United States v. Goldberg, 295 F.3d 1133, 1138 (10th

Cir. 2002). But that deference has limits. District courts must expressly articulate

not only the legal and factual reasons for a departure, but also the logical foundation

for the degree of departure selected. See, e.g., Munoz-Tello, 531 F.3d at 1189-90;

Goldberg, 295 F.3d at 1138-39; Walker, 284 F.3d 1172-73; Whiteskunk, 162 F.3d

at 1253-54. In other words, district courts do not fulfill their explanatory duty

merely by stating the bases for the departure; they must disclose their reasons for the

sentence actually imposed. See United States v. Gardner, 905 F.2d 1432, 1437 (10th

Cir. 1990). The court may explain its degree of departure using any reasonable

methodology, including extrapolation or analogy, hitched to the Guidelines. See

Jackson, 921 F.2d at 991.

      We agree with Defendant that the district court plainly erred in failing to

provide an adequate explanation for its degree of departure here.9 While the court


      9
          As we explained in one case that has now been on the books for seven years:

              It is true that through express adoption of the [PSR’s]
              findings and in statements made directly to the Defendant
              the district court articulated the necessary legal and factual
              reasons justifying its decision to upwardly depart. . . .
              However, the district court’s explanation does nothing
                                                                           (continued...)

                                           20
cited multiple factors favoring an upward departure, its only comment in regard to

the degree of that departure was that Defendant’s criminal history most closely

resembled that of defendants with a criminal history category of VI. Such a cursory

accounting fails to fulfill the district court’s obligation to “precisely lay out” its

“reasoning and analysis as to why” it selected “a particular degree of departure.”

Proffit, 304 F.3d at 1012.

      That said, the plain error test renders this a Pyrrhic victory. For the district

court’s rationale for increasing Defendant’s criminal history category by three levels

is as clear to us as it was to Defendant’s counsel at sentencing. After the district

court revealed its inclination to increase Defendant’s criminal history category by

three levels, defense counsel stated that he understood the district court’s “logic” for

this degree of departure:       If Defendant had been convicted twice of Criminal

Discharge of a Firearm, his criminal history category would have been VI.

Sentencing Transcript at 16.           Defendant cannot demonstrate, under these

circumstances, that the district court’s failure to explain its degree of departure

caused him prejudice. Accordingly, he cannot meet the third prong of the plain error

test. See United States v. Zubia-Torres, 550 F.3d 1202, 1209 (10th Cir. 2008).


      9
          (...continued)
                more than restate the justification for upward departure
                and does not fulfill the separate requirement of stating the
                reasons for imposing the particular sentence.

      Walker, 284 F.3d 1173.

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AFFIRMED.




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