JOSEPH J. CHRISTOPH, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-5535

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-7a) is reported
at 904 F.2d 1036.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 25, 1990.
The petition for a writ of certiorari was filed on August 23, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals erred in upholding as reasonable a
district court's departure from the Sentencing Guidelines, where it
found some of the reasons given by the district court impermissible
but concluded that other reasons were sufficient to justify the
departure.

                               STATEMENT

   Following a plea of guilty in the United States District Court for
the Northern District of Ohio, petitioner was convicted on two counts
of credit card fraud, in violation of 18 U.S.C. 1029(a)(1) and (a)(2).
 He was sentenced to 60 months' imprisonment, to be followed by three
years' supervised release.  He was also ordered to pay restitution to
the two victims, in the amount of $5,259.20.  The court of appeals
affirmed.  Pet. App. 1a-7a.

   1. The facts, which are summarized by the court of appeals, showed
that on April 16, 1988, a man identifying himself as Jeffrey Wells
reserved a room at the Radisson Hotel in Toledo, Ohio, for "Chris
Joseph";  Wells explained that both he and Joseph were associated with
Concierge International.  Pet. App. 2a.  Petitioner, using the name
Chris Joseph, arrived at the hotel and charged hotel room and
limousine services totalling $1,496.20 to an American Express credit
card number that he was not authorized to use.  During his stay at the
hotel, petitioner used a fictitious American Express credit card
number to purchase a $3,763 Rolex watch from a jewelry store.  Pet.
App. 2a-3a.

   2. Under the Sentencing Guidelines, the applicable sentencing range
for petitioner was 33 to 41 months' imprisonment, based on an offense
level of 13 and a criminal history category of VI.  The offense level
was based on the provision in Sentencing Guideline 4B1.3, which
establishes a minimum offense level of 13 for defendants who
"committed an offense as part of a pattern of criminal conduct from
which he derived a substantial portion of his income." Petitioner had
a criminal history score of 17 from past convictions over the previous
ten years that included several instances of credit card fraud.  Pet.
App. 3a.  In addition, the presentence report noted numerous instances
of past criminal conduct and 15 pending charges in several States that
did not enter into the criminal history computation.  Pet. App. 3a-4a.
 It also appeared that, while petitioner had been in jail on the
present charges, he had fraudulently charged clothing worth
approximately $5,000, using the same credit card numbers that had been
used recently in a similar scheme in New Orleans.  Pet. App. 3a.
Petitioner did not dispute any of the past or current conduct.  Pet.
App. 3a, 4a.  He claimed, however, that he had acted alone and was not
part of any organized ring;  and he said that he had found the credit
card numbers he used in the trash.  Pet. App. 3a.

   The district court imposed a sentence of 60 months' imprisonment
instead of one within the Guideline range of 33 to 41 months.  The
court explained that it was making an upward departure from the
Guideline sentence because petitioner's offenses had involved a good
deal of planning, he had devised a scheme to defraud more than one
victim, and because he had "a very, very lengthy criminal record." The
court concluded:  "In any case, it is extremely likely that whether in
or out, you are going to continue this course of conduct, and I can
only hope to make it more difficult for you, for a lengthier period of
time." Pet. App. 4a;  C.A. App. 31-32.

   3. The court of appeals upheld the departure as reasonable,
although it found that some of the factors the district court relied
upon did not justify a departure.  The government conceded on appeal
that because the offense level had already taken into account
petitioner's criminal livelihood, the district court was not justified
in basing a departure on the fact that the offenses involved more than
minimal planning and had multiple victims.  Pet. App. 6a.  The
government maintained, however, that the failure of petitioner's
criminal history score to reflect the seriousness of his extensive
past criminal conduct was reason enough to support the departure made
by the district court.  The court of appeals agreed.

   The court of appeals noted that much of petitioner's past criminal
conduct had not enhanced his criminal history score, and that the
score he did receive exceeded by four points the score necessary to
place him in the highest possible criminal history category.  Pet.
App. 6a-7a.  Finding it proper for the district court to have
considered "the likelihood of recidivism, prior similar adult conduct
not resulting in criminal convictions, and the need to isolate the
defendant from the community to prevent further crimes," the court of
appeals held the departure to be reasonable.  Pet. App. 7a.

                               ARGUMENT

   Petitioner's sole contention (Pet. 4-6) is that the court of
appeals erred in finding the sentencing departure in this case
reasonable when it was based on both permissible and impermissible
factors.

   Petitioner argues that the decision below conflicts with a decision
of the Ninth Circuit, United States v. Nuno-Para, 877 F.2d 1409,
1413-1414 (9th Cir. 1989), in which that court remanded for
resentencing after finding that in departing from the Guidelines
sentence, the district court had improperly relied on factors already
taken into account by the Guidelines.

   The difference in the outcome of the two cases does not indicate a
conflict in the legal interpretation of the Guidelines;  rather, it
reflects merely a difference in the extent to which the reviewing
court in each case was able to determine whether the departure was
justified by a legally permissible factor.

   In Nuno-Para, the district court had given several reasons for its
departure.  As to defendant Nuno, however, the district court
specifically stated that its primary reason for departing was the
defendant's role in the offense, a factor already taken into account
by the Sentencing Guidelines.  Another factor that the court mentioned
-- the money made from the offense -- was also not a proper basis for
departure.  877 F.2d at 1414.  As for the sentence imposed on the
co-defendant, Garcia, the Ninth Circuit found all the reasons
primarily relied upon by the district court to be improper bases for
departure.  877 F.2d at 1412, 1414.

   The Ninth Circuit determined that the district court's ruling in
Nuno-Para indicated "dissatisfaction with the guidelines rather than a
reasoned judgment that particular characteristics of the offense or
the offenses have not been accounted for." 877 F.2d at 1414.  The
court went on to conclude that, under the circumstances, it had "no
way to determine whether any portion of the sentence was based upon
consideration of the improper factors." Ibid.

   In this case, unlike in Nuno-Para, the court of appeals was able to
conclude, without the need for a remand, that the district court's
departure was amply justified by proper considerations, on which the
district court had expressly relied.  The court of appeals found that
petitioner's extensive criminal history alone justified the departure.
 The past convictions that were used to calculate petitioner's
criminal history score gave him a score well above the minimum score
necessary to place him in the highest criminal history category.  For
that reason, petitioner's criminal history score failed to take into
account many of petitioner's convictions, his criminal conduct that
did not result in convictions, numerous pending charges against him,
and even a fraud offense he committed in jail while this case was
pending.  In light of the severe underrepresentation of petitioner's
criminal history, the district court's assessment of his likely
recidivism, and the need to protect society from further fraudulent
activity, the court of appeals readily found an upward departure of 19
months to be justified.  While the court of appeals could have
remanded for resentencing under the broad authority granted by 28
U.S.C. 2106, the justification for the departure in this case was
clear enough that the court reasonably concluded that such a remand
would be pointless.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   KATHLEEN A. FELTON

      Attorney

   NOVEMBER 1990