Unpublished Disposition, 896 F.2d 556 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Carlos Joseph Wells was convicted of conspiring to sell, and selling, stolen United States Savings Bonds. Departing from the recommendation of the presentence report, the district judge sentenced appellant at the upper edge of the Guidelines. Appellant contends that this decision was based in part on erroneous information in violation of his due process rights. We disagree and affirm the sentence of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

On December 9, 1988, appellant was convicted in a jury trial of conspiracy to sell stolen United States Savings Bonds and the unlawful sale of those same bonds which had a face value of $67,000. The presentence report indicated a sentencing range of 21 to 27 months and two to three years supervised release under the Guidelines. The probation officer recommended 24 months incarceration and three years of supervised release noting that appellant's "lengthy past involvement in criminal activities ... mandates the maximum term of supervision."

The district judge departed from the recommendation offered by the probation officer and sentenced appellant to 27 months of incarceration, the maximum permitted under the Guidelines. At the sentencing hearing, the judge commented that she decided to impose the harsher sentence since the instant crime(s) occurred while appellant was on bail for a similar offense for which he was awaiting sentencing in state court:

I think what aggravates this particular case and why I think the upper edge of the guidelines is appropriate, is because of the fact you were on bail for receiving stolen property, the credit cards, when this offense occurred and of course it's a similar offense in that it involved stolen property while he [sic] was on bail from the L.A. case.

Judge Keep then commented: "As the probation officer notes, there are ways that actually [appellant's] record is worse than the point system [indicates] and I could go upward. I'm not going to do that." Appellant claims that this statement misconstrues the presentence report by relying upon "a nonexistent recommendation that the court could depart based upon inadequacy of criminal history." Wells contends that this reliance on erroneous information violates his due process rights and accordingly asks that his sentence be vacated.

DISCUSSION

Sentencing which falls within statutory limits will not be vacated absent an abuse of discretion. United States v. Rachels, 820 F.2d 325, 328 (9th Cir. 1987).

In challenging, on due process grounds, information used in sentencing appellant must show (1) that the information was false or unreliable and (2) that the sentencing judge relied, at least in part, on this information. Id. at 327 (citing Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (en banc)). Appellant has failed to carry this burden. Judge Keep's comments do not indicate, as Wells suggests, that the probation officer felt that appellant's point total was inaccurate or that an upward departure was warranted. She appears instead to have stated that Wells' extensive criminal history and repeated incarceration, which were noted by the probation officer in the presentence report,¹  were not fully reflected in the point system and would justify an upward departure. There is nothing false or unreliable about that statement.

Even if the district court were to have misconstrued the report, appellant could not prevail since the judge's comments indicate that the decision to sentence at the upper end of the Guidelines was not based on any such misapprehension. As noted above, Judge Keep expressly indicated that it was the pendency of appellant's sentencing for a similar crime in state court which was dispositive in this regard.

For the foregoing reasons, appellant's due process claim is without merit and the decision of the lower court is affirmed.

AFFIRMED.