United States of America v. Lamar Outlaw

United States Court of Appeals
For the Eighth Circuit
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No. 12-3577
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Lamar Outlaw
lllllllllllllllllllll Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Iowa - Ft. Dodge
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Submitted: April 9, 2013
Filed: July 29, 2013
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Before LOKEN and GRUENDER, Circuit Judges, and PHILLIPS, District Judge.1
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PHILLIPS, District Judge.
Lamar Outlaw pleaded guilty to being a felon in possession of a firearm. At
sentencing, the Government moved for an upward departure pursuant to United States
The Honorable Beth Phillips, United States District Judge for the Western1
District of Missouri, sitting by designation.

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Sentencing Guideline § 4A1.3(a). The district court granted the motion and2
increased Outlaw’s total offense level by two levels. The district court then sentenced
him to 293 months’ imprisonment.
Outlaw now appeals. He contends the district court erred in granting the
upward departure. He also contends the district court erred in failing to state in
writing the reasons for this departure. We affirm.
I.
A grand jury charged Outlaw with one count of possessing and aiding and
abetting the possession of a firearm after having been convicted of a felony. 18
U.S.C. §§ 2, 922(g)(1), and 924(a)(2). Outlaw pleaded guilty.
The district court held a sentencing hearing. After hearing evidence and
argument, the court made initial findings under the Sentencing Guidelines. First, the
court determined Outlaw’s total offense level was 31. Second, the court assessed 23
points for Outlaw’s prior criminal history, resulting in a criminal history category of
VI. Based on these findings, Outlaw’s initial guideline range was 188-235 months.
The district court then took up the Government’s motion for an upward
departure pursuant to U.S.S.G. § 4A1.3(a). The Government argued that category VI
did not adequately represent the extent of Outlaw’s criminal history. This history
spanned a ten-year period between 1993 and 2003, and it included a total of 20
criminal offenses. Thirteen of those offenses related to an assault. More specifically,
ten offenses arose from an assault upon a female, and an additional two offenses arose
from an assault upon a police officer. Only three of Outlaw’s offenses – interference
The Honorable Mark W. Bennett, United States District Judge for the2
Northern District of Iowa.
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with official acts, voluntary absence from a community correctional facility, and
disorderly conduct – were assessed no criminal history points.
After reviewing Outlaw’s criminal history, the district court stated, “I don’t
think I’ve ever seen this many assault convictions[.]” The court also remarked that
Outlaw’s criminal history contained an “incredible history of violence” and was “one
of the worst criminal histories I’ve ever seen in terms of assault.” Ultimately, the
court concluded that based on Outlaw’s “23 criminal history points, I just feel I
absolutely have to increase this sentence.” The court emphasized that this increase
was based on a need to protect the public.
The district court granted the Government’s motion and increased Outlaw’s
offense level by two levels. As a result, Outlaw’s total offense level was 33, his
criminal history category was VI, and his sentencing range was 235-293 months. The
court sentenced Outlaw to 293 months’ imprisonment. In an accompanying written
order, the court noted it had departed upward two levels for under-represented
criminal history, but it did not elaborate further.
II.
Outlaw now appeals his sentence. “We review the court’s decision to depart
upward for an abuse of discretion.” United States v. Johnson, 648 F.3d 940, 942 (8th
Cir. 2011) (citation omitted).
Outlaw raises two issues. First, Outlaw contends the district court erred in
granting the upward departure under U.S.S.G. § 4A1.3(a). Specifically, Outlaw
argues the court erred because: (1) his prior assault offenses are dissimilar from his
instant firearms offense; (2) his 23-point criminal history score adequately accounts
for his criminal history, because only a few of his prior offenses were assigned no
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points; and (3) he was not on probation or parole when he committed the instant
offense.
Section 4A1.3 permits a district court to grant an upward departure if “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(a)(1). Section 4A1.3 expressly sets forth five
factors the court may consider when deciding whether to depart. Id. § 4A1.3(a)(2).
However, the court is not limited to considering only these factors. United States v.
Porter, 439 F.3d 845, 849-50 (8th Cir. 2006). Instead, the court may consider a wide
variety of other information. Id. For instance, the court may consider “the substantial
likelihood a defendant will commit future crimes or his capacity for future violence.”
Id. at 849. The court may also consider a defendant’s prior serious criminal offenses,
even if those offenses are different in kind from the instant offense. Id.; Johnson, 648
F.3d at 943. To depart from the highest possible criminal history category – category
VI – the court incrementally increases the defendant’s offense level until reaching an
appropriate sentencing range. U.S.S.G. § 4A1.3(a)(4)(B); see Johnson, 648 F.3d at
943-44.
In light of this law, Outlaw’s arguments against the upward departure fail. As
an initial matter, the district court found that a category VI criminal history
under-represented Outlaw’s criminal history. Category VI requires a minimum of 13
criminal history points. Outlaw’s 23 points far exceeded this minimum.
The district court also properly considered Outlaw’s long history of committing
assaults. Of his 20 criminal offenses, 13 related to an assault. Outlaw assaulted a
police officer on two occasions. He assaulted his current or former girlfriend on three
occasions. And he assaulted a 13-year-old girl on a separate occasion. These crimes
show a pattern of violent conduct and recidivism, and they suggest Outlaw would
commit additional violent crimes. The court could consider these offenses, even
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though they are dissimilar from his instant firearms offense. Likewise, the court
could also consider Outlaw’s three prior offenses that were assigned no criminal
history points. The Sentencing Guidelines expressly permit a court to consider an
un-scored offense. U.S.S.G. § 4A1.3(a)(2)(A). In addition, one of Outlaw’s
un-scored offenses – for disorderly conduct – arose from a violent assault. In light
of this criminal history, the fact Outlaw was not on either probation or parole is of no
consequence. The district court did not err in granting a two-level upward departure
under § 4A1.3(a). See United States v. King, 627 F.3d 321, 322 (8th Cir. 2010)
(affirming one-level upward departure under § 4A1.3(a), where defendant’s 34-point
criminal history was based on a “longstanding pattern of violence”); United States v.
Jones, 596 F.3d 881, 883 (8th Cir. 2010) (affirming two-level upward departure under
§ 4A1.3(a), where defendant’s 19-point criminal history was based on an “extensive”
criminal history).
In his second issue, Outlaw challenges the district court’s failure to
memorialize in writing the reasons for granting the upward departure. Although
Outlaw concedes the court discussed these reasons in open court, he argues the court
erred by failing to also state them in writing.
“When a district court departs outside the recommended range of the
guidelines, it must state in open court and in the written order of judgment and
commitment the reasons for that particular sentence.” United States v. Paz, 411 F.3d
906, 910-11 (8th Cir. 2005) (citing 18 U.S.C. § 3553(c)(2)); see also U.S.S.G. §
4A1.3(c)(1) (stating that when a court departs upward, it shall specify in writing why
the defendant’s criminal history category under-represents the seriousness of his
criminal history or the likelihood he will commit additional crimes). The purpose of
requiring written reasons is to inform the parties, facilitate appellate review, and
assist in administrative data collection. Paz, 411 F.3d at 911. However, a failure to
provide written reasons does not automatically require reversal. Id. Instead, any
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prejudice from this failure is “nullified when the district court stated with great
specificity in open court the reasons for its decision to depart upward.” Id.
Here, the district court indicated in the written statement of reasons that it
departed upward two levels for under-representation of criminal history, but it did not
elaborate further. However, the court did so only after holding a comprehensive
sentencing hearing, in which it explained at length the reasons for the departure.
Therefore, even if the court’s written explanation is somewhat lacking, its thorough
explanation during the sentencing hearing negated any prejudice and fulfilled the
purposes of the written-reasons requirement. The district court did not commit
reversible error.
III.
The district court is affirmed.
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