Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 00-10572
__________________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

GARY LANDON DAVENPORT,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
___________________________________________________
March 14, 2002
Before POLITZ, STEWART, and CLEMENT, Circuit Judges.
CLEMENT, Circuit Judge:
Gary Landon Davenport appeals his sentence for securities
fraud and using a post office box in furtherance of a scheme to
defraud. He argues that the district court made an improper upward
departure in sentencing him to twenty years imprisonment and that
the government breached his plea agreement. Finding no error, we
affirm.
I.
On January 21, 2000, Gary Davenport pled guilty to devising a
fraudulent estate planning service targeted at elderly victims.
The scheme, which began in October 1992, involved inducing senior
citizens to liquidate legitimate investments and put their life

savings in Davenport's sham company, Southwest Family Trust Service
("Southwest"). In June 1996, the Texas State Bar obtained an
injunction shutting down Southwest for engaging in the unauthorized
practice of law; but rather than cease his activities, Davenport
changed the name of his business to Liberty Marketing Service and
continued swindling investors for more than two years. Davenport
admitted that he cheated at least 65 elderly individuals out of
more than $2 million.
In connection with Davenport's plea agreement, the government
stipulated that a guideline range of 87 to 108 months imprisonment
would sufficiently penalize Davenport's conduct. After reviewing
the pre-sentence investigation report ("PSR") prepared by the
probation office, the district court concluded that the appropriate
guideline range was 70 to 87 months. However, finding that the
guidelines did not fully recognize the gravity of Davenport's
offense, the court determined that an upward departure was
appropriate and imposed consecutive sentences of 60 months on Count
1 and 180 months on Count 2, for a total of 240 months
imprisonment. The court also imposed a three year term of
supervised release and ordered restitution in the amount of
$2,605,936.00.
II.
Davenport appeals his sentence, urging that the district court
failed to notify him of its intent to depart upward, that the court
lacked proper grounds for departure, that the departure was
2

excessive, and that the government breached his plea agreement by
failing to recommend a shorter sentence. We find these objections
without merit and affirm.
Federal Rule of Criminal Procedure 32 gives the defendant and
the government an opportunity to comment on the probation officer's
determinations and other matters at sentencing. See FED. R. CRIM.
P. 32(C)(West 2002). In Burns v. United States, 501 U.S. 129, 138
(1991), the Supreme Court construed Rule 32 to require a district
court, before sentencing, to notify the defendant of its intent to
depart upward and to identify the grounds for the possible
departure. Davenport argues that the district court failed to
comply with either of these requirements. Because he neither
objected to the lack of notice at sentencing nor moved for a
continuance, we review for plain error. See United States v.
Milton, 147 F.3d 414, 420 (5th Cir. 1998).
The notice requirement of Rule 32 may be met by information
contained in the PSR. See United States v. Doucette, 979 F.2d
1042, 1047 n.4 (5th Cir. 1992). Davenport's PSR clearly stated
that the court "may want to consider an upward departure," and we
find that each of the district court's grounds for departure is
reflected in the report. First, the court stated that an upward
departure is "more than appropriate" because Davenport deliberately
targeted numerous elderly and vulnerable victims. These reasons
were expressly set forth in the PSR, which recommended an upward
3

departure because Davenport's offense "involved the targeting of a
large number of vulnerable victims." Next, the court found that
"the amount of dollar loss does not even begin to address the
losses and the suffering of the victims in the case and their
mental and their emotional strain." This factor was also noted in
the PSR, which stated that an upward departure may be warranted
when the financial loss "underestimates the harm" due to "severe
emotional trauma."
Finally, Davenport argues that he was "blindsided" by the use
of the injunction against his company as a ground for departure.
Specifically, the district court found that Davenport deserved an
increased sentence for "continuing to prey on numerous elderly
victims who lost their life savings by trusting [him] with their
assets" despite the injunction. Although the PSR does not
explicitly mention the injunction, the court's reasoning parallels
the probation officer's detailed discussion of United States v.
Smith, 133 F.3d 777 (10th Cir. 1997), which affirmed an upward
departure for a defendant who exhibited "an extra measure of
criminal depravity" and "particularly predatory" criminal conduct.
Similarly, the instant departure is partially based on Davenport's
unrelenting predatory criminal activity in spite of the Texas Bar's
efforts to stop him. Since the PSR's commentary on Smith adverted
to comparable behavior, the district court sufficiently informed
Davenport that it was contemplating an upward departure due to his
continued predatory conduct. Moreover, even if Davenport were not
4

properly notified of the court's final basis for departure, lack of
notice on that single factor does not constitute plain error
sufficient to affect the fairness, integrity or public reputation
of the proceedings. See Johnson v. United States, 520 U.S. 461,
466-67 (1997).
In addition to challenging notice, Davenport disputes the
propriety of the district court's grounds for departing upward. A
district court may depart from a guideline sentencing range when it
finds that "there exists an aggravating or mitigating circumstance
of a kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines that
should result in a sentence different from that described." 18
U.S.C. � 3553(b). This court reviews a district court's upward
departure for abuse of discretion. See United States v. Arce, 118
F.3d 335, 339 (5th Cir. 1997). There is no abuse of discretion if
the district court provides acceptable justification for the
departure and the degree of departure is reasonable. See United
States v. Nevels, 160 F.3d 226, 229-30 (5th Cir. 1998).
In the case at bar, Davenport claims that each of the district
court's grounds for departure was already covered by the
guidelines. We disagree. The district court's first two bases for
departure are Davenport's targeting elderly victims and the large
number of victims. The PSR correctly noted that those factors were
not considered in the 1997 guidelines, which were used in
5

calculating Davenport's sentence. Accordingly, we find Davenport's
objection to these factors is without merit
The court also based its departure on the victims' emotional
strain caused by their monetary losses. Although dollar loss is
specifically accounted for in � 2F1.1 of the Sentencing Guidelines,
the commentary to that section provides that where "the loss
determined under subsection (b)(1) does not fully capture the
harmfulness and seriousness of the conduct, an upward departure may
be warranted." � 2F1.1, comment. (n.10). At Davenport's
sentencing, the district court heard testimony from several victims
and found that "the amount of dollar loss does not even begin to
address the losses and the suffering of the victims in the case and
their mental and their emotional strain." Since the guidelines
provide for an upward departure in precisely such a situation, we
do not find that the district court abused its discretion by basing
its departure on the victims' financial devastation.
Finally, the district court departed due to Davenport's
continued criminal activity in defiance of the injunction obtained
by the Texas State Bar. Although the guidelines provide a two-
level increase for disregarding an injunction, Davenport did more
than simply ignore a court order. He intentionally frustrated the
injunction's purpose by changing the name of his business, and
through this contrivance was able to continue his scheme for more
than two years. We agree with the district court that the
6

guidelines did not adequately penalize Davenport's calculated
criminal conduct.
Davenport next argues that the extent of the departure was
unreasonable. The district court added approximately 13 years to
Davenport's seven-year guideline sentence. Although this is a
large increase, it is less than other departures that have been
affirmed by this court. See, e.g., United States v. Geiger, 891
F.2d 512 (5th Cir. 1989)(affirming sentence more than four times
greater than guideline maximum); United States v. Roberson, 872
F.2d 597, 606 (5th Cir. 1989)(three times); United States v.
Juarez-Ortega, 866 F.2d 747 (5th Cir. 1989)(more than four times).
Moreover, Davenport's twenty-year sentence does not exceed the
statutory maximum. See United States v. Rogers, 917 F.2d 165, 169
(5th Cir. 1990)("Because Rogers' sentence does not exceed the
maximum sentence provided by statute, he may not challenge the
additional term the district court applied after its point of
departure."). These considerations lead us to conclude that the
district court's upward departure in sentencing Davenport was not
unreasonable.
Finally, Davenport argues that the government breached his
plea agreement by failing to recommend that he be sentenced within
the guideline range of 70 to 87 months. This argument is
foreclosed by United States v. Reeves, 255 F.3d 208, 210 (5th Cir.
2001), in which we held that the government did not breach a plea
7

agreement by remaining silent at the sentencing hearing when its
recommendation had been incorporated into the PSR. As in Reeves,
Davenport's PSR includes the government's stipulated range.
Furthermore, the plea agreement clearly stated that "[t]he sentence
in this case will be imposed by the Court," not the government.
Accordingly, we do not find that the government breached the
agreement.
III.
For the foregoing reasons, Davenport's sentence is AFFIRMED.
8