Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1990)

MEMORANDUM

Hurtado appeals from his sentence imposed following a guilty plea for attempted escape, in violation of 18 U.S.C. § 751(a). Under the Sentencing Guidelines, his adjusted offense level was 11 and his total criminal history score was 6. Hurtado is in criminal history category III. The sentencing guideline range is from 12 to 18 months' imprisonment. Hurtado was sentenced to 40 months. Hurtado argues that the district court erred in sentencing him outside of the guideline range.

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm.

Hurtado argues that the district court could not depart based on the physical injury suffered by the federal officers trying to stop his escape from custody because this factor was considered adequately by the Sentencing Commission when it formulated the Guidelines. A court can impose a sentence outside the Guidelines if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines...." United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989), quoting 18 U.S.C. § 3553(b). Such departures are reviewed according to a five-step process:

1. we first inspect whether the district court stated its reasons for departing from the Guidelines by adequately identifying the "aggravating or mitigating circumstance" (circumstance);

2. if it did, we then review for clear error whether the identified circumstance actually existed;

3. if it did, we then review de novo whether the circumstance was of a kind adequately taken into consideration by the Sentencing Commission;

4. if, and only if, it was not, we review for an abuse of discretion the district court's decision whether that unconsidered circumstance should result in departure; and,

5. if the circumstance warrants departure, we review for an abuse of discretion whether the extent or degree of departure was unreasonable. United States v. Lira-Barraza, 897 F.2d 981, 983-86 (9th Cir. 1990).

The district court held that the beating and injury suffered by federal officers in attempting to stop Hurtado's escape attempt as the circumstance that warranted departure. This circumstance was identified by the district court at the sentencing hearing. The existence of this factor has not been disputed.

We must next determine whether this circumstance was adequately considered by the Commission. Id. The infliction of physical injury was not considered by the Sentencing Commission for the offense under which Hurtado was sentenced. United States Sentencing Commission, Guidelines Manual Sec. 2P1.1 (Nov.1989) (U.S.S.G.) (provides that a defendant convicted of escape, instigation, or assisting escape be given a base offense level of 13 and an additional 5 points can be added for the use or threat of force during the offense). The use of force against any person is considered in this provision, but the provision does not consider whether actual harm was inflicted. U.S.S.G. Sec. 2P1.1(b) (1). Furthermore, the commentary to this section advises departure under section 5K if bodily injury did occur. U.S.S.G. Sec. 2P1.1 comment. (n. 4).

Because the Guidelines did not consider the circumstance, we must next determine whether the district court abused its discretion by departing from the guideline range based on this unconsidered circumstance. We conclude it did not. The Guidelines themselves recognize physical injury resulting from the offense as an aggravating circumstance that warrants departure. See U.S.S.G. Sec. 5K2.2 ("If significant physical injury resulted, the court may increase the sentence above the authorized guideline range.").

Because the district court did not abuse its discretion in concluding that this aggravating circumstance warranted departure, we must decide whether the departure was reasonable in direction and degree. Lira-Barraza, 897 F.2d at 986. Under the facts of this case, we cannot say that an additional 22 months was unreasonable.

AFFIRMED.