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U.S. v. Hickman

filed: April 16, 1993; As Corrected May 6, 1993. Second Correction August 5, 1993.

UNITED STATES OF AMERICA, APPELLEE
v.
CHRIS HICKMAN, APPELLANT



On Appeal From the District Court of the Virgin Islands. (Crim. No. 91-00018).

Before: Becker, Cowen, and Roth, Circuit Judges.

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

Chris Hickman, a building contractor, was convicted by a jury on five counts of mail fraud and sentenced to forty-eight months in prison. In committing the fraud, Hickman mailed letters, progress reports, and supposed photographs of a house on St. Croix to Robert and Deborah MacEwan of New York, who had paid Hickman $163,000 for the construction of that house. However, contrary to Hickman's representations, the house was never built.*fn1 In his appeal, Hickman raises a number of challenges to the conviction itself, none of which have merit or warrant Discussion.*fn2 We must, however, address Hickman's contention that he was improperly sentenced.

First, Hickman alleges that the district court erred in adjusting his offense level upward by two levels for use of "a special skill[] in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. § 3B1.3. In Hickman's submission, § 3B1.3's adjustment for use of a special skill does not apply to the facts of this case. We agree.

Second, Hickman contends that the court erred when, based on its Conclusion that Hickman's criminal history category under-represented the seriousness of his past criminal conduct, it made an upward departure from his Guidelines sentencing range without engaging in the "ratcheting" methodology required by U.S.S.G. § 4A1.3. Under § 4A1.3, the court must look to each succeeding level of criminal history for an appropriate "fit," and then look to the guideline range specified for that criminal history category. We agree that the district court failed to follow the procedure required by § 4A1.3. Accordingly, while we affirm the conviction, we will, for both reasons mentioned above, vacate the sentence and remand for resentencing.

I.

Section 3B1.3 of the Sentencing Guidelines provides:

If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels. This adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic. If this adjustment is based upon an abuse of a position of trust, it may be employed in addition to an adjustment under § 3B1.1 (Aggravating Role); if this adjustment is based solely on the use of a special skill, it may not be employed in addition to an adjustment under § 3B1.1 (Aggravating Role).

U.S.S.G. § 3B1.3. The relevant Application Note provides:

"Special skill" refers to a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.

U.S.S.G. § 3B1.3, Application Note 2.

The district court concluded that Hickman should receive the two points for use of a special skill because:

based upon his license as a contractor, his special expertise, these persons trusted him. It was his training and that license, I'm persuaded, that enabled him to perpetrate this scheme. He just didn't go out and find somebody to perpetrate this scheme. [They] just didn't go out and find somebody to do a few things for them. They gave him the total responsibility for the construction of a home. And, he held out his special skill and his license, assuring them that he was qualified and responsible and would do so.

Without that, I don't think that any of this would have happened. And, he would, based on my research, be an individual that was explained within the guidelines. And, we must ...


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