Revised December 10, 1998

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 97-20845

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SAMMIE LEE NEVELS,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas

November 9, 1998

Before SMITH, DUHÉ, and WIENER, Circuit Judges

DUHÉ, Circuit Judge:

Sammie Lee Nevels (“Nevels”) pleaded guilty to two counts of

possession of stolen mail for possession of a stolen social

security check and a stolen sweepstakes promotion. In computing

Nevels’ offense level under the United States Sentencing Guidelines

(“Guidelines”), the district court increased the base offense level

by two under §2B1.1(b)(2) based on theft from a person. Further,

the court departed above the Guidelines’ maximum range, because

Nevels’ behavior was egregious and Nevels had not disclosed his total involvement. Nevels appeals the increased base offense level

and the upward departure. We affirm.

I. Background

On January 3, 1997, an unidentified individual stole two

bundles of mail containing Social Security checks from a United

States Postal Service letter carrier at gunpoint. The bundles of

mail, minus the Social Security checks, were recovered about eight

blocks away approximately thirty minutes after the theft. Nevels’

fingerprints were on a sweepstakes promotion and Dimitris Simpson’s

fingerprints were on several pieces of mail in the recovered

bundles.

Three months later, an unidentified individual broke into a

Postal Service vehicle and stole a bundle of mail, including social

security checks. While the Postal Inspection Service was

investigating an attempt by Simpson to cash a check from the bundle

stolen from the Postal vehicle, a store owner provided

documentation that Nevels had cashed a Social Security check from

the bundles stolen in January. Nevels cashed a check for $653

payable to Johnie M. Ward on January 3, 1997, using identification

with Ward’s name but Nevels’ picture. Nevels admitted that he had

received and cashed a social security check payable to Johnie M.

Ward. Nevels stated that the same couple who gave him the check

helped him obtain the false identifications, and paid him 35% of

the check proceeds. Nevels also admitted that he had been cashing

2 checks for the couple since October 1996.

Nevels pleaded guilty to two counts of possession of stolen

mail. The Presentence Investigation Report (“Report”) calculated

a total offense level of seven, based on: (1) a base offense level

of four under 1997 U.S.S.G. § 2B1.1(a), which applies to the most

basic property offenses, see 1997 U.S.S.G. § 2B1.1(a) introductory

comment; (2) a one level increase under 1997 U.S.S.G. §

2B1.1(b)(1)(A) because the amount of the check exceeded $100; (3)

a two level increase under 1997 U.S.S.G. § 2B1.1(b)(2) because the

theft constituted relevant conduct and the theft was from a person;

(4) a two level increase under 1997 U.S.S.G. § 2B1.1(b)(4)(A)

because the crime required more than minimal planning; and (5) a

two level decrease under 1997 U.S.S.G. § 3E1.1(a) for acceptance of

responsibility. The Report also calculated Nevels’ criminal

history category as IV.1 The Report suggested use or possession of

a weapon during the commission of the offense as a possible ground

for upward departure under 1997 U.S.S.G. § 5K2.6. Nevels objected

to the two level increase based on theft from a person as relevant

conduct, and the upward departure based on use or possession of a

weapon.

At sentencing, the district judge overruled Nevels’ objections

and adopted the Report’s findings and recommendations. Further,

1 A total offense level of seven and a criminal history category of IV translated to a Sentencing Guidelines imprisonment range of 8 to 14 months.

3 the judge upwardly departed to a base level of 142 under 1997

U.S.S.G. § 5K2.0 because of the egregious nature of Nevels’

conduct3 and his lack of truthfulness. He sentenced Nevels to 33

months imprisonment, three years supervised release, and $653 in

restitution. Nevels appeals the two level upward adjustment for

theft from a person, and the seven level upward departure based on

egregious behavior and lack of truthfulness.

II. Two Level Increase in Nevels’ Base Level Based on Relevant Conduct

A. Standard of Review

The district court’s determination of what constitutes

relevant conduct for sentencing purposes is a factual finding. See

United States v. Peterson,

(5th Cir. 1996).

The trial judge’s factual findings must be supported by a

preponderance of the evidence. See United States v. Sotelo,

(5th Cir. 1996). We review factual findings for

sentencing purposes for clear error. See United States v. Narviz-

Guerra,

(5th Cir. 1998).

B. Analysis

2 A base level of 14 and a criminal history category of IV translate to a range of 27 to 33 months. 3 The judge comments at length on the Social Security recipients’ reliance on their checks for the necessities of life, and the stress and anxiety resulting when the checks are not promptly received.

4 The district judge increased Nevels’ base level by two for the

specific offense characteristic “theft from the person of another”

under § 2B1.1(b)(2). The Guidelines permit a judge to “hold a

defendant accountable for all relevant conduct.” United States v.

Maseratti,

(5th Cir. 1993), cert. denied,

(1994). A defendant who is part of a “jointly undertaken

criminal activity”4 is accountable for “all reasonably foreseeable

acts . . . of others in furtherance of the . . . activity.” 1997

U.S.S.G. § 1B1.3(a)(1)(B); 1997 U.S.S.G. § 1B1.3(a)(1)(B) comment

2. However, conduct occurring before a defendant joined the

criminal venture is not “reasonably foreseeable.” 1997 U.S.S.G. §

1B1.3(a)(1)(B) comment 2; see also United States v. Carreon,

(5th Cir. 1994).

Nevels agrees that the mail was stolen from the person of

another. However, he disputes that this theft from a person is

relevant conduct for his sentencing. He maintains that the

government has no evidence that he robbed the letter carrier.

Further, the government has no evidence that he was part of any

joint criminal activity before he cashed the check, thus theft from

the person of the letter carrier was not reasonably foreseeable.

The district judge’s determination that Nevels’ involvement in

the joint criminal activity preceded his cashing the check is not

4 Criminal activity includes “a criminal . . . scheme . . . undertaken by the defendant in concert with others, whether or not charged as a conspiracy . . . .” 1997 U.S.S.G. § 1B1.3(a)(1)(B) & comment 2.

5 clearly erroneous. First, Nevels admitted that he had been cashing

checks for the couple since October 1996. Second, fingerprints of

both Nevels and Simpson were on mail in the bundles recovered just

30 minutes after and about eight blocks from the scene of the

January robbery. Third, Nevels admitted that he received the check

from a couple who also provided his fake identifications, and

presumably to whom he gave the money from the cashed check, minus

his 35% share.

Further, the district judge’s determination that theft from

the person of another was reasonably foreseeable and furthered the

joint criminal activity is not clearly erroneous. A judge

determining the scope of a jointly undertaken criminal activity may

consider “any . . . implicit agreement fairly inferred from the

conduct of the defendant and others.” 1997 U.S.S.G. §

1B1.3(a)(1)(B) comment 2. The district judge could reasonably

infer from the scheme to cash stolen checks that Nevels should have

reasonably foreseen that checks might be stolen from the person of

a letter carrier.

Although the district judge did not explicitly state that

Nevels jointly undertook criminal activity, and that theft from the

person of another was reasonably foreseeable and in furtherance of

this joint activity, these conclusions are reasonably clear in the

district court’s findings. See United States v. Lghodaro,

(5th Cir. 1992).

6 III. Upward Departure

A. Standard of Review

We review the district judge’s departure from the Guidelines

for abuse of discretion. See Koon v. United States,

(1996); United States v. Arce,

(5th Cir.

1997). There is no abuse of discretion if the judge provides

acceptable reasons for departure and the degree of departure is

reasonable. See United States v. Clements,

(5th

Cir. 1996).

B. Analysis

The district judge upwardly departed from the Guidelines under

§ 5K2.0 although the Report did not recommend such a departure. He

boosted Nevels’ offense level from seven to 14 for behaving

egregiously and for not being truthful concerning his total

involvement in the scheme. Nevels asserts that the district judge

abused his discretion by upwardly departing on these bases, and

that the judge did not give adequate notice of his intent to

upwardly depart.

1. Upward departure based on Nevels’ egregious conduct and his untruthfulness about his total involvement

The Guidelines carve out a “‘heartland,’ a set of typical

cases embodying the conduct that each guideline describes.” 1997

U.S.S.G. ch. 1, pt. A, intro. comment 4(b). The district judge can

depart from the Guidelines based on factors “not adequately taken

7 into consideration by the Sentencing Commission in formulating the

guidelines,” with the exception of several factors that the

Guidelines explicitly exclude from consideration. 1997 U.S.S.G. §

5K2.0. The judge can consider acts and factors that are not

necessarily criminal or illegal when deciding whether or how much

to depart. See Arce,

-41 (citing specific

Guidelines provisions and comments to justify this finding).

The judge did not abuse his discretion in upwardly departing

based on Nevels’ egregious conduct. Section 2B1.1 covers the most

basic property offenses, and warrants an upward departure if the

monetary loss adjustment “does not fully capture the harmfulness of

the conduct.” 1997 U.S.S.G. § 2B1.1 commentary n.15. The judge

provided acceptable reasons for his departure, focusing on the fact

that Social Security checks are government securities; that

recipients rely on these checks for subsistence; that Nevels had

participated in this scheme for several months; that Nevels had

jointly participated with others; that Nevels had used fake

identifications. The degree of the departure is also reasonable,

since the ultimate sentencing range of 27-33 months is well within

the five year statutory maximum for possession of stolen mail.

We need not address whether the judge abused his discretion in

upwardly departing based on Nevels’ “untruthfulness.” Even if

Nevels’ “untruthfulness” were an invalid reason for departure, “the

district court would have imposed the same sentence absent reliance

8 on [this] invalid factor[].”5 Koon,

.

Nevels claims that the Guidelines account for both bases for

the judge’s upward departure. The Guidelines include a vulnerable

victim adjustment, permitting the judge to increase two levels from

the base level if the defendant “knew or should have known that a

victim of the offense was unusually vulnerable due to age, . . .

[or] was otherwise particularly susceptible.” 1997 U.S.S.G. §

3A1.1. The Guidelines also include a downward adjustment for

acceptance of responsibility. See 1997 U.S.S.G. § 3E1.1. Nevels

pled guilty to both counts of possession of stolen mail, admitted

to the elements of the crime, and expressed remorse, entitling him

to a downward adjustment. Nevels asserts that because refusal to

admit relevant conduct beyond the convicted offense will not

justify a denial of an adjustment for acceptance of responsibility,

such refusal can not provide the basis for an upward departure.

We need not resolve whether the Guidelines account for

“untruthfulness.” Even if the Guidelines explicitly include

adjustments for certain factors, the district judge has the

discretion to determine that the particular conduct at issue is

outside the “heartland,” because the conduct is of “a kind or to a

degree not adequately accounted for in the Guidelines.” See United

States v. Arce,

(5th Cir. 1997). The judge

determined Nevels’ unadjusted base level under 1997 U.S.S.G. §

5 See supra n.3 (noting that the judge repeatedly stressed the egregious nature of Nevels’ conduct).

9 2B1.1(a). Section 2B1.1(a) applies to the most basic property

offenses and warrants an upward departure if the monetary loss

adjustment “does not fully capture the harmfulness of the conduct.”

1997 U.S.S.G. § 2B1.1 commentary n.15. Nevels’ extensive

involvement as discussed above is “of a kind or degree not

adequately accounted for” by § 2B1.1(a). Therefore, his egregious

conduct constitutes an acceptable reason for the judge’s departure.

Further, the degree of the departure is reasonable, since the 33

month sentence is well below the five year statutory maximum. We

need not address the issue of Nevels’ “untruthfulness,” since “the

district court would have imposed the same sentence absent reliance

on [any] invalid factor[].”6 Koon,

.

2. The district judge’s failure to give notice of the upward departure

The judge must give the parties reasonable notice and

specifically identify the grounds for an upward departure if he

departs for reasons not included in the Sentencing Report or other

presentencing submissions by the parties. See Burns v. United

States,

(1991). We review Nevels’ lack of

notice claim for plain error because he did not object to this

aspect of departure in the district court on notice grounds. See

United States v. Milton,

(5th Cir. 1998).

Even assuming plain error, we reverse only if the error “affects

6 See supra n.3 (noting that the judge extensively commented on the egregiousness of Nevels’ conduct).

10 the substantial right of the defendant” or “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

United States v. McDowell,

(5th Cir. 1997). The

defendant has the burden of proving prejudice from the error. See

United States v. Olano,

(1993). Nevels has not

carried his burden of proving prejudicial error. He simply asserts

that if he had known the judge would view theft of a Social

Security check as egregious conduct because the theft would cause

the vulnerable recipient unusual despair, he could have directed

the judge to the vulnerable victim adjustment, which carries only

a two level adjustment. For the reasons stated above, the judge

would have had the discretion to upwardly depart from the

Guidelines by seven levels even if the vulnerable victim adjustment

applied to the circumstances of this case.

AFFIRMED.

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