United States of America, Plaintiff-appellee, v. Reinaldo Santos, Defendant-appellant, 93 F.3d 761 (11th Cir. 1996)

Reinaldo Santos appeals his sentence for possession of ammunition and possession of a firearm by a convicted felon. The District Court enhanced his sentence under the Armed Career Criminal Act and in addition departed upward from the applicable sentencing guidelines range in order to more accurately reflect Santos' criminal history. The District Court also ordered restitution. Santos argues that his criminal history was already taken into account by the Armed Career Criminal Act enhancement, and that the court ordered restitution for a crime Santos was not convicted of. We affirm the length of the sentence but reverse the order of restitution.

Mr. Santos was convicted of violating 18 U.S.C. § 922(g), which prohibits a convicted felon from possessing a firearm and from possessing ammunition. Santos' offense level under the sentencing guidelines was increased from 28 to 34 because he was an armed career criminal under 18 U.S.C. § 924(e). That section requires an increase in the offense level for defendants convicted under 18 U.S.C. § 922(g) who have three prior convictions for violent felonies or serious drug offenses. In addition, Santos had a criminal history score of 21, which resulted in a Criminal History Category VI. With a guideline base offense level of 34 and a Criminal History Category VI, the guidelines called for imprisonment for 262 to 327 months. However, the court made an upward departure under U.S.S.G. § 4A1.3, increasing the offense level to 36 with a guideline range of 324 to 405 months.

The court sentenced Santos to 360 months imprisonment. In addition, the court ordered Santos to pay restitution for a robbery that the prosecution contends Santos committed just before he was arrested with the firearm. Santos appealed.

Following the recent Supreme Court pronouncement in United States v. Koon, --- U.S. ----, ----, 116 S. Ct. 2035, 2047, 135 L. Ed. 2d 392 (1996), this Court now applies the abuse of discretion standard of review to a district court's decision to depart from the sentencing guidelines. See United States v. Bernal, 90 F.3d 465, 467 (11th Cir. 1996); United States v. Taylor, 88 F.3d 938, 945 (11th Cir. 1996).

Section 4A1.3 of the Sentencing Guidelines allows a departure from the sentencing range where

reliable information indicates that 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.

U.S.S.G. § 4A1.3. However, the Supreme Court has held that

it is an incorrect application of the Guidelines for a district court to depart from an applicable sentencing range based on a factor that the Commission has already fully considered in establishing the guideline range.

Williams v. United States, 503 U.S. 193, 200, 112 S. Ct. 1112, 1119, 117 L. Ed. 2d 341 (1992).

Santos argues that the increase in the offense level under the Armed Career Criminal Act precludes an upward departure under U.S.S.G. § 4A1.3 because the factors that can enhance the sentence under § 4A1.3 were already considered by the Sentencing Commission under the Armed Career Criminal Act.

It is true that the Armed Career Criminal Act increases the offense level from 28 to 36. An offense level of 36 with a Criminal History Category VI (as opposed to a defendant with no criminal history who had illegal possession of a firearm) results in an enormous increase in the term of imprisonment based solely on the defendant's past criminal behavior. See U.S. v. Ford, 996 F.2d 83, 87 (5th Cir. 1993).

However, Santos' 21 criminal history points far exceeded the 13 points needed for a Criminal History Category VI. In addition, Santos' criminal history score did not reflect several other prior convictions or conduct, including a burglary and conduct in connection with an aggravated battery. Nor were those other crimes needed to sentence Santos as an armed career criminal under 18 U.S.C. § 924(e). Thus the upward departure under U.S.S.G. § 4A1.3 was not "based on a factor that the Commission ha [d] already fully considered in establishing the guideline range," Williams, 503 U.S. at 200, 112 S. Ct. at 1119, and "reliable information indicate [d] that the criminal history category [did] not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." U.S.S.G. § 4A1.3. Based on the specific circumstances of this case, the departure was within the District Court's discretion.

Santos was not convicted of the crime of robbery, yet the District Court ordered him to pay $2000 in restitution, equal to the amount taken in the robbery. A court can order restitution for offenses which the defendant has been convicted of, for harm due to the defendant's criminal conduct in the course of a conspiracy or pattern of criminal activity, and to the extent agreed on in a plea agreement. 18 U.S.C. § 3663. The United States concedes that none of the grounds for restitution apply in the instant case, and that Santos' conviction for possession of a firearm and ammunition by a felon does not support the order of restitution.

We conclude that the District Court was within its discretion when it departed from the sentencing guidelines, but that the court had no authority to order restitution. The term of imprisonment is AFFIRMED, while the order of restitution is REVERSED.