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October 21, 1995


The opinion of the court was delivered by: SPATT

 The petitioner pro se Jeffrey Shore ("Shore") moves the Court for an order vacating or setting aside his sentence pursuant to 28 U.S.C. § 2255. Shore advances the following three arguments in support of his motion: (1) the Court abused its discretion by upwardly departing from the sentencing guideline range; (2) the Court's upward departure was a denial of Shore's right to equal protection; and (3) the Court's upward departure was improper because it was based on a foreign conviction that Shore alleges was constitutionally infirm.

 On May 22, 1992 Shore pleaded guilty to one count of causing stolen goods to be transported interstate in violation of 18 U.S.C. § 2314. Based on the presentence report and the evidence presented at three presentence hearings, Shore's offense level was calculated at twelve. According to the presentence report, Shore had a criminal history category of III. An offense level of twelve and a criminal history category of III placed Shore within a sentencing range of 15 to 21 months. The Court found, after the three presentence hearings, that the criminal history category of III did not adequately reflect Shore's past criminal conduct or the likelihood that he would commit other crimes. Accordingly, the Court exercised its discretion, pursuant to 4A1.3, to move horizontally to the next criminal history category, category IV. With an offense level of twelve and a criminal history category of VI, Shore's guidelines range was twenty-one to twenty-seven months.

 Shore was sentenced by this Court on December 29, 1992 to a twenty-seven month term of incarceration to be followed by a period of three years supervised release and a fine of $ 30,000.00 to paid on an installment basis over a period of five years following his release from incarceration. The Court also ordered Shore to participate in psychiatric counselling as a special condition of both incarceration and supervised release.

 The presentence hearings

 Three hearings were held by the Court prior to imposition of Shore's sentence. On November 20, 1992, the Court heard argument on whether Federal Sentencing Guideline § 4A1.3, which permits an upward departure where the sentence does not adequately reflect the seriousness of a defendant's past criminal history or the likelihood that the defendant would commit other crimes, would permit the Court to consider two offenses by Shore that occurred more than twenty years earlier. The Court initially declined to depart upwardly based on those offenses because a disorderly conduct was relatively minor and the other, a foreign conviction, involved only 6,000 grams of marijuana, an amount that would support only a misdemeanor conviction in New York. Transcript of November 20, 1992 Hearing at p. 35-36. At the end of the hearing the Court stated that "I have not abandoned the application for an upward departure because I consider the 21 months top charge ludicrous for this man's history and what he has done while he has been before me." Id. at p. 47.

 The second pre-sentence hearing took place on December 11, 1992. At that hearing the Court noted the Second Circuit's decision in United States v. Diaz-Collado, which was rendered several days earlier on December 7, 1992. See United States v. Diaz-Collado, 981 F.2d 640 (2d Cir. 1992), cert. denied, U.S. , 124 L. Ed. 2d 684, 113 S. Ct. 2934 (1993). In that opinion the Second Circuit stated that a judge's decision to increase a federal defendant's sentence because of crimes committed before the fifteen year period is permissible if avoiding a sentence enhancement would lead to a distorted image of the defendant's criminal past. See id. The Court advised the parties that it had erred with respect to the view expressed at the November 20, 1992 hearing that nonsimilar outdated convictions could not support an upward departure. Transcript of December 11, 1992 Hearing at pp. 18-21. The hearing was adjourned for the Court to consider, among other things, whether Shore's 1969 Lebanese conviction was a factor to be considered in determining whether an upward departure was justified on the grounds that the defendant's history was not fully considered and his capacity or the possibility of committing other crimes was not fully considered. Id. at 26. The Court did not consider Shore's 1971 disorderly conduct conviction to be a proper factor in determining whether an upward departure was appropriate. Id.

 On December 29, 1992, the Court held the final hearing prior to imposing sentence. With regard to Shore's 1971 Lebanese conviction, the Court stated that

In the case of United States against Diaz-Collado, decided by the Second Circuit approximately two weeks ago on December 7, 1992, slip onion at page 302, Section 4A1.2(e)(1) provides that quote, any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted, end quote. In Diaz-Collado the Court of Appeals quoted that departure on the basis of, quote, similarly outdated convictions is specifically authorized by the guidelines in comment note 8.
The Court noted that even if the conviction is not a similar one it could be considered in an upward departure. Quote, for the purposes of this appeal we assume that under certain circumstances non-similar outdated convictions may be used as a basis for departing from the guidelines, end quote.
And Judge Feinberg wrote, that, quote, this case illustrates how ignoring non-similar out-dated convictions can sometimes generate a distorted image of a defendant's criminal past, end quote.j
It is clear then that this Court has the power to upwardly depart because of an old, more than 15 year old crime.
. . . .
We are told in United States against Kim, 896 F.2d 678, Second Circuit 1990 that when a criminal history category is deemed inadequate, and a judge is contemplating a 4A departure, by moving horizontally across the sentencing table to a more serious category, the Judge must next consider the next higher category to determine if it would be adequately reflect the seriousness of the defendant's criminal history.
The Court finds the government has established that there exists an aggravating circumstances [sic] of a kind or to a degree not adequately taken into consideration by the sentencing commission in formulating the guidelines.
In respect to a July 30th, 1969 smuggling narcotics conviction in Beirut, Lebanon, in which the defendant was sentenced to three years hard labor followed by deported [sic] on February 13, 1970. According to Interpol, the defendant was arrested in Lebanon for attempting to smuggle 6,000 grams of hashish outside the country.
Looking at the sentencing table, the history, the criminal history category of three, with the offense level of 12, results in 15 to 21 months.
Moving along laterally into the criminal history we get to roman numeral four, four point seven, eight and nine, which leads to 21 to 27 months. And the Court is ...

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