Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1990)

MEMORANDUM^* 

Defendant, Jorge Valdivia-Ramirez, appeals from the criminal sentence he received under the Sentencing Guidelines ("Guidelines"). He alleges that the district court failed to resolve controverted matters in his Pre-Sentence Report ("PSR"), failed to give notice of an intent to depart from the Guidelines, failed to state specific reasons for departing from the Guidelines, and improperly relied on his alienage status in departing. He also argues that the district court could not impose a term of supervised release when it had already sentenced him to the statutory maximum term of imprisonment. We reject most of these contentions, but because we find that the district court failed to give adequate notice of intent to depart and also failed to state adequate reasons for the extent of its departure, we vacate the sentence and remand for resentencing.

FACTS

On March 15, 1989, a one-count indictment was filed alleging that Valdivia-Ramirez was a previously deported alien unlawfully present in the United States. 8 U.S.C. § 1326. Valdivia-Ramirez pleaded guilty to the charge.

On May 26, 1989, a Pre-Sentence Report ("PSR") was filed. The PSR listed forty-eight aliases, thirteen dates of birth, and three social security numbers used by the defendant. The PSR calculated the sentence under the Guidelines. Eight points were initially assessed as the base offense level. Guideline Sec. 2L1.2(a). The score was then adjusted two points downward for acceptance of responsibility. Guideline Sec. 3E1.1(a). The net offense level was six.¹ 

The PSR calculated twenty-five points for criminal history. Most of that history concerned property offenses, although three offenses involved narcotic drugs. Valdivia-Ramirez' twenty-five point score placed him in a criminal history category of VI. A defendant qualifies for that category with a score as low as thirteen points.

Valdivia-Ramirez' criminal history score included three points awarded for offenses committed when he was a juvenile. The score did not include arrests for being under the influence of a controlled substance on February 2, 1983 and March 15, 1983, an arrest for possession of marijuana for sale on March 25, 1986, and undated arrests for burglary and receiving stolen property.

The applicable Guideline range for an offense level of six and a criminal history category of VI is twelve to eighteen months. The PSR recommended a sentence of eighteen months, but stated that, "The Court may wish to depart upward in light of the other criminal conduct reported in this defendant's case which was not counted in the criminal record computation. Additionally, four convictions were not counted as the guidelines dictate that a maximum of four points may be counted for offenses which fall under [Guideline] 4A1.1(c)."

On June 23, 1989, Valdivia-Ramirez filed objections to the PSR. He argued that he should not have been awarded three criminal history points for juvenile offenses. He also stated that he could not recall the convictions prior to 1986 for which nine points had been assessed.

At the sentencing hearing, defense counsel repeated these contentions. Counsel observed, however, that even if the criminal history calculation did not include the three juvenile offenses, the criminal history score would still exceed thirteen points, and Valdivia-Ramirez would remain in criminal history category VI.

The Government responded that defendant had seventeen prior convictions since he was seventeen years of age and had many other legal problems. It observed that, " [A]n upward departure is appropriate based on the fact that his criminal history category in a number of convictions does not accurately reflect his contact with law enforcement" and recommended a sentence of imprisonment of twenty-four months. In rebuttal, defendant argued that none of the circumstances permitting departure under Guideline Sec. 4A1.3 were present and that the court should not depart.

The court then imposed a term of imprisonment of twenty-four months and a term of supervised release of one year. The court based its departure on the failure of the criminal history category to reflect the seriousness of the defendant's past criminal conduct or the likelihood that he would commit other crimes. The court cited Section 4A1.3 of the Guidelines. The court concluded that:

[T]his Defendant is unable to conduct himself--unable to stay out of this country, and when he's in this country illegally, he's unable to refrain from preying upon the citizens, and the other residents, legal and illegal, in this country, and the Court regards him as a career criminal and likely to return to his former conduct.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 18 U.S.C. § 3742. We review the legality of a sentence de novo. United States v.Cervantes-Lucatero, 889 F.2d 916, 917 (9th Cir. 1989). We also determine if the sentence is outside the applicable guidelines range and if the sentence is unreasonable. 18 U.S.C. § 3742(e) (3).

Due regard is to be given to the district court's ability to judge credibility of witnesses. Findings of fact are to be accepted unless clearly erroneous and "due deference" is to be given to the district court's application of the Guidelines to the facts. 18 U.S.C. § 3742(e).

As to departures, we review de novo the question of whether a ground was adequately taken into account by the Sentencing Commission, and we review the question of whether the facts justify the decision to depart for clear error or abuse of discretion. See United States v. Gayou, No. 89-30096, slip op. 3747, 3750-51 (9th Cir. Apr. 13, 1990).

DISCUSSION

I. Supervised Release.

Valdivia-Ramirez contends that because he had already been sentenced to a term of twenty-four months' imprisonment, the district court exceeded its authority in imposing a term of supervised release consecutive to the term of imprisonment. In United States v. Montenegro-Rojo, No. 89-50134, slip op. 3695, 3710 (9th Cir. Apr. 12, 1990), we held that the sentencing court has "the option to tack a period of supervised release onto any term of imprisonment authorized by a substantive criminal statute, even a term near or at the maximum." See also United States v. Robertson, No. 89-30129, slip op. 3527, 3531 (9th Cir. Apr. 10, 1990). Therefore, we reject defendant's contention.

II. Resolution of Disputed Matters under Fed. R. Crim. P. 32(a) (1).

Although Valdivia-Ramirez argues that the sentencing court never resolved matters in the PSR that he controverted, he never actually objected to any factual matter. Defendant challenged the imposition of three points for juvenile convictions. He relied upon the application note to Guideline Sec. 4A1.1(c), which excludes from computation sentences imposed before the defendant's eighteenth birthday which were not within five years of the instant offense.

In general, a district court must resolve disputed factual issues, and we will remand for resentencing when it fails to do so, since strict compliance with Fed. R. Crim. P. 32(c) (3) (D) is required. United States v. Fernandez-Angulo, No. 87-3068, slip op. 2731, 2735 (9th Cir. Mar. 13, 1990) (en banc). See also United States v. Turner, No. 89-30036, slip op. 2657, 2663 (9th Cir. Mar. 12, 1990) (Sentencing Guidelines case; " [s]trict compliance with Rule 32(c) (3) (D) is required and failure to comply will result in the case being remanded"). However, the juvenile point issue is not a factual issue and defendant never objected to the factual basis of those convictions. In any event, because of the large number of prior convictions, defendant would remain in the same criminal history category with or without these juvenile convictions. Moreover, the district court was not entirely precluded from considering them for departure purposes. They were a part of defendant's continuing stream of criminal activity. Again, we emphasize that there was no dispute about the fact of these convictions. The only issue was their use.

Defendant also discussed nine prior convictions before 1986, in the most general and even obtuse manner. At the sentencing hearing, defense counsel only noted that defendant could not recall "each and every" offense. Defendant asked the court to consider the difficulty in verifying the prior arrests and convictions in determining their reliability. In his written objections, defendant did not deduct these points from the criminal history score. His failure to do so suggests that he did not object to their inclusion, or, at least, that he was not asking the court to resolve a factual issue. If he wanted to have a factual issue resolved he should have made that known in a manner that alerted the district court to his desire. At the sentencing hearing, defendant conceded that there was not "any value in having to prove up those records." No objection was made. See United States v. Rewald, 889 F.2d 836, 869 (9th Cir. 1989).

III. Notice of Intent to Depart.

A defendant must be given notice of an intent to depart, and that notice must identify the activity that will be used as a basis for the departure. The notice must either be in the PSR or be explicitly given by the court at the sentencing hearing. See United States v. Acosta, 895 F.2d 597, 600-01 (9th Cir. 1990); United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir. 1989). In Nuno-Para, we said that either "the presentence report or the court must inform the defendant of factors that they consider to constitute grounds for departure." 877 F.2d at 1415. It is not enough simply to include the information in the report. If notice is to come from the report, the "information ... must be identified as a basis for departure" in that report. Id. Similarly, in Acosta, we stated that the report must identify factors "possibly warranting departure from the guidelines." 895 F.2d at 601.

In the case at hand, the PSR did give notice that some unidentified criminal conduct may be a proper ground for departure. The district court gave no notice whatsoever.

We are troubled by the nature of the notice in the PSR. It is quite vague as to the specific criminal conduct that was to be used as the basis for departure. Furthermore while the PSR does refer to the fact that departure may be warranted, it, unlike the report in Acosta, 895 F.2d at 601, does not recommend a departure. Moreover, the district court went beyond factors mentioned in even that generalized notice and spoke to defendant's aliases, his different birthdates, and his repeated earlier entries into this country (one of which was the very crime in question here). The district court also relied upon the entire body of defendant's criminal history as the basis for departure, even though the most liberal reading of the notice of the PSR permitted reliance on only those convictions for which no criminal history points were assigned.

The vagueness of the notice and the fact that the PSR contained no positive recommendation of departure make that report insufficient to support the determination in this case. We recognize that defendant did address the departure issue before he was sentenced, but that was not even in his opening remarks. It was after the Government made its argument for an upward departure. The timing of defendant's remarks further suggests that the notice did not convey the court's intention to defendant.

III. Adequate Reasons for Departure.

Defendant contends that there was an inadequate statement of reasons for departure. It is without dispute that the district court based the decision to depart upward on criminal history, and items that were related to that history. There was an adequate statement by the district court that criminal history was the basis of its departure. The findings concerning the individual episodes of criminal conduct were not clearly erroneous.

The district court properly based its decision to depart upward upon criminal history. The Sentencing Commission recognized in Guideline Sec. 4A1.3 that departure would be warranted on the basis of criminal history if the criminal history category did not adequately reflect the extent of criminal conduct. Furthermore, the sentencing court based its decision to depart on defendant's lengthy criminal history, repeated failures to comply with deportation orders, commission of offenses while serving sentences, and prior adult criminal conduct not resulting in a criminal conviction. All of these factors justify an upward departure under the Guidelines. Guideline Sec. 4A1.3(c)-(e).

Once we find departure to be permissible, we next determine whether the amount of that departure is unreasonable. 18 U.S.C. § 3742(e) (3). United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989). In this case, however, we cannot do so, because we do not have an adequate explanation of the extent of the departure. The district court did not explain how it arrived at the twenty-four month imprisonment term. It simply recited defendant's criminal history and then chose the maximum term permitted by law for the offense. It did not reflect upon the Guideline scheme itself. While the amount of departure was rather moderate in terms of months--twenty-four rather than the eighteen month maximum under the Guidelines--it was substantial in terms of percentage. A specific explanation of the reasons for the amount of the departure was required. See Gayou, slip op. at 3755; Cervantes-Lucatero, 889 F.2d at 919.

IV. Alienage Status.

Valdivia-Ramirez contends that the sentencing court relied upon his undocumented alien status in departing. Alienage cannot be a basis for departure here, since it is already factored into the calculation of the base offense level under Guideline Sec. 2L1.2(a). See United States v. Rios, 876 F.2d 24, 26 (5th Cir. 1989) (per curiam). The district court did not rely upon defendant's alienage status in departing. While the court observed that Valdivia-Ramirez was unable to stay out of this country, the district court's focus remained upon his activities while in this country. At most, it relied upon defendant's numerous deportations. Repeated failures to comply with deportation orders may be a basis for departure. Guideline Sec. 4A1.3(c).

CONCLUSION

The district court erred when it failed to explain how it reached the term of imprisonment it imposed. It should have explained how it arrived at the twenty-four month term of imprisonment. It also erred in failing to give defendant proper notice of intent to depart.

On the other hand, we hold that the district court did not err in imposing a term of supervised release that resulted in an overall term of custody in excess of the authorized term of imprisonment. We also hold that no proper objection was made to factual matters in the PSR, and that the district court did not use alienage status as a basis for departure.

VACATED and REMANDED for resentencing.