Court Vacates Upward Departure Based on Dissimilar Conduct

US v. Nixon: Nixon pleaded guilty to being a felon in possession of a firearm. While awaiting sentencing he “committed several acts of violence, including multiple stabbings” in custody. Nixon’s attorney procured an evaluation from a psychiatrist who detailed Nixon’s mental health issues and how they helped explain his conduct while in custody. The Government sought an upward departure from the 41-51 month Guideline range to the statutory maximum of 120 months to account for his “criminal history,” which included the incidents that occurred prior to sentencing. The district court granted the motion, jumping directly from a Criminal History Category III to VI and an elevated offense level to produce a Guideline range of 100-120 months, then imposed a sentence of 114 months. In doing so, the district court rejected Nixon’s expert opinion, concluding “I don’t need to hear from her. I read her report. I don’t find it credible.”

On appeal, a divided Fourth Circuit vacated Nixon’s sentence, for multiple reasons. First, the court concluded that the district court erred by relying on Nixon’s conduct while awaiting sentencing as a basis for the departure, as it was not based on “prior similar adult criminal conduct” to either conduct at issue in his offense or conviction or criminal history. The court stressed that the Government could have prosecuted Nixon separately for that conduct but, having decided not to, could not use the same conduct to enhance Nixon’s sentence. Second, the district court procedurally erred in its departure, failing to do the step-by-step analysis required, going up one Criminal History Category at a time (although it recognized such a requirement was necessary). Finally, the court held that the district court erred by disregarding Nixon’s expert report given that it was uncontested by the Government, leading to a clearly erroneous finding that Nixon’s conduct was not impacted by it.

Judge Harris, dissented, arguing that the limitation in the Guidelines related to the departure was not so narrow, that the district court both recognized the need for a step-by-step process and said it did so, and there was no clear error in the treatment of the expert report. Finally, Judge Harris argued that any error was harmless, as the district court said it would impose the same sentence regardless of the departure.