HARLINGTON WOOD, Jr., Circuit Judge.
The only issue is the sentence imposed on defendant Jeffery T. Miller under the United States Sentencing Commission Guidelines ("Guidelines"), pursuant to the Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et seq. (Supp. IV 1986), and 28 U.S.C. §§ 991-98 (Supp. IV 1986).
I. PROCEDURAL BACKGROUND
On January 7, 1988 Miller was indicted in the Central District of Illinois and charged with the December 2, 1987 robbery of a federally insured savings and loan association in Springfield, Illinois in violation of 18 U.S.C. § 2113(a) (1982).
II. SENTENCING HEARING
In light of his presentence report, Miller's base offense level was determined to be 19, after adjustment upward for the separate bank robberies and downward for Miller's acceptance of responsibility for the crimes. The guideline imprisonment range was determined to be 30-37 months, after computation established that Miller's criminal history placed him in Criminal History Category I under the Guidelines. Up to this point the court, the government and Miller were all in agreement. However, Judge Mills decided, not without good reason, that the resulting sentence range did not produce an adequate sentence in view of certain prior criminal conduct of Miller. He therefore sentenced Miller to 45 months in the Florida and the Illinois cases. Under the Guidelines, that sentence jumped from Criminal History Category I over Category II to the upper limit of Category III. See Guidelines, at 5.2 (Sentencing Table). This appeal followed.
Miller first argues that Criminal History Category I adequately reflected the seriousness of his past conduct because there was no "reliable information," as required by Guidelines § 4A1.3 (Adequacy of Criminal History Category (Policy Statement)), to justify the increase to Category III. Judge Mills properly relied on section 4A1.3, the applicable parts of which are set out.
Guidelines § 4A1.3.
The presentence report revealed several adult charges (juvenile offenses were not considered) which were pending against Miller in the Illinois courts at the
Miller argues that this prior offense information does not meet the Guidelines' "reliable information" requirement. Miller points out that as an adult he had no prior actual convictions. The local charges did not result in convictions, but were dismissed. Therefore, he argues, the dismissed charges do not evidence "criminal conduct" as no actual culpability appears in this record. Further, he argues, as set out in the last sentence of section 4A1.3, "a prior arrest record itself shall not be considered under § 4A1.3."
Defense counsel made these arguments to the district judge. The district judge, again understandably, did not believe that he should have to try the dismissed state charges in order to determine the defendant's culpability.
The presentence report information on the misdemeanor charge, and the related bench warrants, is not as complete as it no doubt could be made upon a further check of the local court files, or by inquiry with the local state's attorney's office. To permit a departure, however, all that the Guidelines require is that the federal offense was committed while the defendant was awaiting trial on another offense. There does not have to be a conviction to permit departure. That Miller was awaiting trial on the local charges is not disputed. We anticipate that it will become the usual practice to include in presentence reports sufficient detail about prior criminal conduct, including that not resulting in conviction, in order to assist the court in determining "the variations in the seriousness of criminal history that may occur." Guidelines § 4A1.3 commentary at 4.10. What was supplied in the presentence report, however, is more than a mere prior arrest record and cannot be faulted merely on that basis under section 4A1.3, as urged by Miller.
Another aspect related to the "reliable information" requirement is the lack of record explanation for the state's dismissal of all local charges against Miller. State charges are often dismissed in ordinary course if the federal government presses an adequate case against the same defendant. Very likely, that is the reason for the dismissals in this case. That explanation, however, is not in the record, except again as offered in argument by the government prosecutor. Some explanation is needed. Although it is most unlikely, the local authorities could have decided
Our concern with this case arises out of the way the enhanced sentence was otherwise arrived at by Judge Mills. In deciding to add the additional months to the defendant's sentence, Judge Mills offered this explanation:
It is obvious that Judge Mills was exercising his discretion in trying to arrive at a fair but adequate sentence. As Judge Mills explained, he took one fourth of 36 months, which is in the upper range of sentences under Criminal History Category I at Offense Level 19, and then added 9 months to the sentence to arrive at the total sentence of 45 months. That process, skipping over Category II, put the defendant in the upper reaches of Criminal History Category III, where the range is 37 to 46 months. That was equivalent to finding, under section 4A1.1, that Miller had actually served time on two felony convictions, or served time on one felony conviction and additional time on another conviction, felony or misdemeanor. See Guidelines § 4A1.1 (Criminal History Category).
It is true that even in the absence of actual sentencing, prior criminal conduct may be considered as specified in section 4A1.3. Section 4A1.3 permits enhancement, at least to some degree as we noted, based on the fact that the present offenses were committed while some other serious offense, the local burglary charge for instance, was pending and unresolved. See Guidelines § 4A1.3(d), (e) & example (4). Miller therefore cannot avoid some enhanced penalty for the dismissed local charges.
How to approach enhancement procedurally is also set forth in the Guidelines, the pertinent part of which follows:
Guidelines § 4A1.3, at 4.9. We read this explanation to mean that the inquiry begins with an appropriately determined criminal history category. Any enhancement thereafter considered is not a matter of the sentencing judge's discretion as in bygone days, but must be made by reference to the higher criminal history categories and their intended applicability. When considering sentence enhancement, courts are directed
It appears that Category III, where Miller ended up, was determined by Judge Mills' mathematical exercise of discretion by adding on a quarter of the sentence otherwise determined from the Guidelines, rather than through the comparative process mandated by the Guidelines. Possibly the result may turn out to be about the same, but the Guidelines compel a particular procedure and the exercise of the sentencing judge's discretion within those parameters. Although we will be quite deferential to a sentencing judge's decision to impose a sentence within the correctly ascertained guideline range, we are obligated to review sentences imposed outside the guideline range under a "reasonableness" standard. Compare 18 U.S.C. § 3742(e)(2) with 18 U.S.C. § 3742(e)(3). Where we find that a departure from the guideline range is unreasonable, we must vacate a sentence and remand the case for further proceedings. 18 U.S.C. § 3742(f)(2). "Reasonableness" implies that a sentencing judge must provide articulable reasons, of a type contemplated by the Act and the Guidelines, and based on a sufficiently sound factual foundation, to justify a departure from the guidelines. For example, in United States v. Otero, 868 F.2d 1412 (5th Cir.1989), the sentencing court made an upward departure on the defendant's offense level based on the purity of the cocaine involved in the defendant's drug offense. Although the Guidelines specifically allow for an upward departure based on drug purity, see § 2D1.1 application note 9, the Fifth Circuit vacated the defendant's sentence, finding the departure unreasonable based on the record because the sentencing court failed to substantiate the evidence regarding drug purity. The appellate court also noted the sentencing court's failure to provide prior notice to the defendant of its intent to make an upward departure — the defendant found out at the sentencing hearing.
We observe finally that Judge Mills took particular note of the two state bench warrants that were outstanding against Miller when he committed the federal offense. If bench warrants are properly viewed as a prelude to a finding of contempt of the local court's notice to appear, it may be necessary to consider section 4A1.2(C)(1) of the Guidelines. That section excludes consideration of certain prior or similar offenses, for the purpose of computing criminal history, unless there was a sentence of at least 30 days or probation for at least one year. Contempt of court is the first example listed under the section. On the other hand, the Guidelines distinguish between information that can be considered in determining a defendant's guideline range, and information that may be considered when setting a sentence within a range or in deciding to depart from the range. See Guidelines § 1B1.4 & commentary at 1.20.
Many questions can be expected to arise under the Guidelines, but hopefully they will diminish as all parties gain familiarity with the Guidelines' procedures. It is not for us to determine the appropriate sentence here even with the use of the Guidelines. See 18 U.S.C. § 3742(f)(2). That must be left to the trial judge's exercise of discretion within the Guidelines, with a record explanation of how and why the sentence was enhanced. See generally Miller, Guidelines are not Enough: The Need for Written Sentencing Opinions, 7.1 Behavioral Sciences and the Law 3 (1989). If it were not for the need to follow the Guidelines, we would find no fault with Miller's sentence.
Insofar as the sentence imposed exceeds 37 months, it is vacated and the case remanded to the district court for reconsideration in accordance with this opinion and the requirements of the Guidelines. Circuit Rule 36 shall not apply.