Guideline Sentencing: An Outline of Appellate Case Law on ...

Section VI: Departures
b. Remote convictions
Convictions too old to include in the criminal history calculation may provide a
basis for departure if they are “evidence <strong>of</strong> similar, or serious dissimilar, criminal
conduct.” USSG §4A1.2, comment. (n.8) (1992). See also U.S. v. Wyne, 41 F.3d
1405, 1408–09 (10th Cir. 1994) (remanding departure because remote convictions
did not make up “serious dissimilar” criminal conduct: “little, if any, weight should
have been given to the eight misdemeanor convictions which occurred more than
30 years prior to defendant’s arrest in the instant case,” and there was insufficient
evidence that conduct in other remote convictions was, in fact, serious; burden <strong>of</strong>
pro<strong>of</strong> is on government to demonstrate seriousness) [7#6]; U.S. v. Gentry, 31 F.3d
1039, 1041 (10th Cir. 1994) (remanded because “district court failed to specifically
find that Defendant’s ten uncounted [remote] convictions were evidence <strong>of</strong> ‘similar’
or ‘serious dissimilar’ criminal conduct”); U.S. v. Eve, 984 F.2d 701, 704–05
(6th Cir. 1993) (remanding departure based in part on remote conviction because
they did not fit in the “very narrow exception to the exclusion <strong>of</strong> old sentences” in
Note 8); U.S. v. Leake, 908 F.2d 550, 554 (9th Cir. 1990) (before 1992 amendment,
may only use similar convictions). See also U.S. v. Smallwood, 35 F.3d 414, 417–18
& n.8 (9th Cir. 1994) (remanded: change to Note 8 allowing consideration <strong>of</strong> dissimilar
conduct may not be applied retroactively—amendment was not simply clarifying
but “changes the substantive law and the meaning and effect <strong>of</strong> the guidelines
in this circuit”). Cf. U.S. v. Brown, 51 F.3d 233, 234 (11th Cir. 1995) (affirmed:
although remote fraud <strong>of</strong>fenses were not similar to instant escape <strong>of</strong>fense, departure
warranted where district court concluded that prior convictions were serious
because “what you find is a pattern which as a whole seems very serious to me because
it continued over such a long period <strong>of</strong> time” (emphasis added by appellate court)).
The Ninth Circuit has indicated that whether previous convictions involved similar
criminal conduct is determined by the general characteristics <strong>of</strong> the <strong>of</strong>fenses—e.g.,
fraud, theft, violence—not the particular facts surrounding each crime. Thus, a
defendant’s prior remote convictions for child molestation were not similar to the
instant <strong>of</strong>fense <strong>of</strong> falsifying a passport application, even if the latter was motivated
by a desire to escape an investigation into new child molestation charges. U.S. v.
Donaghe, 50 F.3d 608, 612 (9th Cir. 1994) (replacing withdrawn opinion at 37 F.3d
477).
Before Note 8 was amended Nov. 1, 1992, most circuits had allowed the use <strong>of</strong>
dissimilar conduct in limited situations. See, e.g., U.S. v. Diaz-Collado, 981 F.2d
640, 643–44 (2d Cir. 1992) (assuming dissimilar, outdated convictions can be
grounds for departure, affirmed upward departure based on frequency <strong>of</strong> and lenient
sentences for outdated convictions); U.S. v. Rusher, 966 F.2d 868, 881–82 (4th
Cir. 1992) (dissimilar old convictions may be used as “reliable information” to depart);
U.S. v. Aymelek, 926 F.2d 64, 73 (1st Cir. 1991) (may use dissimilar remote
convictions only if they are evidence <strong>of</strong> an “unusual penchant for serious criminality”)
[3#20]; U.S. v. Williams, 910 F.2d 1574, 1578–79 (7th Cir. 1990) (in “appropriate
circumstances,” remote convictions may be considered as part <strong>of</strong> “overall
assessment” <strong>of</strong> whether criminal history score adequately reflects defendant’s past)
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