Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

MEMORANDUM^* 

Stephen Barrett pled guilty to the charge of ex-felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The presentence report identified the applicable sentencing guideline range at two to eight months based on Barrett's offense level of seven and his criminal history category of two. The district court found that Barrett's criminal history category did not adequately reflect the seriousness of his past criminal conduct. As a result, the district judge departed upward to fourteen months, the term of imprisonment recommended for a defendant with an offense level of seven and a criminal history score of four. We vacate Barrett's sentence and remand.

Initially, we note that Barrett's appeal is not moot even though he has served his sentence because the collateral consequences of Barrett's sentence persist. See Armant v. Marquez, 772 F.2d 552, 555 (9th Cir. 1985). Because Barrett was sentenced to fourteen months, if he is ever again sentenced under the Guidelines, his criminal history score will be increased by three points. If he had been sentenced in the original guideline range of two to eight months, his criminal history score would only have been increased by two points because of this conviction. Sentencing Guidelines Sec. 4A1.1. Therefore, Barrett's appeal is not moot.

The district court departed from the recommended guideline range in this case. The district court explained its decision to depart at the sentencing hearing.

Well, I am inclined to think I would agree in part with Ms. Browning but only in part and I rule as follows: I find that [Barrett's] criminal history category does not adequately represent the seriousness of his past criminal conduct. I depart upwards two categories to category four and that gives a guideline range of 8 to 14 months. I impose a sentence of 14 months, the upper end of the guidelines.

[RT, p. 19]

In its finding of fact order, the district court stated:

1. The criminal history catagory [sic] does not adequately reflect the seriousness of defendants past criminal conduct or the likelihood that defendant will commit other crimes. Section 4A1.3.

2. The guidelines range for this offense does not adequately address the deterrent effect of a sentence on defendant.

The Court finds that the criminal history does not adequately represent the seriousness of his past criminal conduct and the Court departs upward two catagories [sic] to criminal history catatory [sic] 4, which produces a guideline range of 8-14 months.

[ER p. 008] The district court never explained why the defendant's criminal history score did not adequately represent the seriousness of defendant's past criminal conduct.

A general statement that the offense level under-represents the seriousness of a defendant's past criminal conduct does not satisfy the Sentencing Guidelines requirement that a sentencing court must state "the specified reason for the imposition of a sentence different from that described [in the guidelines]." 18 U.S.C. § 3553(c) (West Supp.1989). United States v. Cervantes-Lucatero, 889 F.2d 916, 918-19 (9th Cir. 1989); United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989). We held in Wells that " [t]he district court must set forth the specific aspects of the defendant's criminal history or of the charged offense that the district court believes have not been adequately represented in the recommended sentence." Wells, 878 F.2d at 1233.

The district court failed to specify why the defendant's criminal history score under represented his past criminal conduct as required by Wells. Therefore, we vacate Barrett's sentence and remand to the district court for resentencing.

VACATED AND REMANDED.