Unpublished Disposition, 902 F.2d 42 (9th Cir. 1989)

MEMORANDUM

Terpening pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (1). Pursuant to the Sentencing Guidelines, the district court sentenced him to 60 months in prison, and Terpening appeals this sentence. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part and vacate and remand in part.

* Terpening first argues that the district court erred in enhancing his offense level on the basis his offense was part of a pattern of criminal conduct from which Terpening derived his livelihood. We review the district court's interpretation of the Guidelines de novo and review factual findings for clear error. United States v. Munster-Ramirez, 888 F.2d 1267, 1269 (9th Cir. 1989) (Munster-Ramirez) .

At the time of Terpening's sentencing, section 4B1.3 of the Guidelines provided for an enhancement of a defendant's offense level " [i]f the defendant committed an offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income." Terpening argues first that his offense was not an income-producing offense, and that therefore section 4B1.3 is inapplicable. Terpening was convicted of being a felon in possession of a firearm, which is not itself an income-producing offense. However, nothing in the Guidelines limits the application of section 4B1.3 to activities which, standing alone, directly generate income. To the contrary, section 4B1.3 speaks to activities which are "part of a pattern of criminal conduct" which produces income. Here, the district court found that Terpening was involved in a pattern of burglary and auto theft--clearly criminal conduct which is income-producing. Further, the district court found that Terpening carried the firearm in question in connection with these activities. These findings are not clearly erroneous. Holding that the possession of the firearm qualified as an offense constituting part of a pattern of income producing activity under such circumstances is consistent with the provisions of section 4B1.3.

Terpening next argues that he did not derive a "substantial portion of his income" from the illegal activities. In Munster-Ramirez, we concluded that section 4B1.3 envisions a subjective test: "the sentencing court must determine a defendant's income and then determine what percentage or proportion of his income is derived from criminal activity." Munster-Ramirez, 888 F.2d at 1270. Here, the district court properly applied this test. The court concluded that in light of Terpening's negligible employment history and substantial record of recent burglaries and thefts, the illegal income must comprise a substantial proportion of Terpening's total income. These findings are not clearly erroneous. See id. at 1272.

Terpening invites us to reconsider Munster-Ramirez in light of recent amendments to the Guidelines which require that an absolute minimum dollar amount must be derived from criminal activity before section 4B1.3 can be invoked. See Guidelines Sec. 4B1.3, commentary, note 2 (as amended Nov. 1, 1989). These amendments were not in effect at the time of Terpening's sentencing. Terpening argues that they are persuasive because they were intended to clarify rather than change existing law.

We are not bound by the Commission's opinion as to whether an amendment changes or clarifies existing law. The amendments cited by Terpening plainly change the law as interpreted by Munster-Ramirez, which we are bound to follow. See Munster-Ramirez, 888 F.2d at 1275 (Nelson, dissenting) (arguing that the majority erred in not requiring an absolute minimum amount). Thus, we conclude that the amendments are not evidence of the law prior to November 1, 1989. Since Terpening is governed by Munster- Ramirez, not by the amendments, the district court properly did not require a showing of an absolute minimum dollar amount accruing from Terpening's illegal activities before invoking section 4B1.3.

We therefore conclude that the district court did not err in ehancing Terpening's offense level under section 4B1.3.

II

Terpening next argues that the district court erred in departing upward from the sentence prescribed by the Guidelines. The district court sentenced Terpening to 60 months, although the Guidelines indicated a sentence of 27-33 months. The district judge justified this departure on two grounds: (1) because Terpening committed the offense while on conditional release, and (2) because of Terpening's prior criminal activity and likelihood of recidivism. Terpening argues that both justifications are in error.

The district court stated:

It's also my determination that the defendant was on conditional release at the time of this offense. He admitted that he violated his parole and was released conditionally ... to the probation officer ... when he had been ordered to report to his parole officer and he failed to do so.

Terpening concedes that he was on conditional release following a parole violation when he committed the offense in question. However, he contends that this is not a proper reason for upward departure under section 4A1.3, the authority relied upon by the district court.

Section 4A1.3 provides:

A departure under this provision is warranted when the criminal history category significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes. Examples might include the case of a defendant who ... committed the instant offense while on bail or pretrial release for another serious offense....

Terpening argues that, although he was on conditional release, he was not on pretrial conditional release, and therefore section 4A1.3 is inapplicable. But the examples listed as supporting upward departure under section 4A1.3 are not exhaustive. Violation of conditional release following a parole violation is similar to violation of a pretrial conditional release: in both instances the defendant was given his liberty on the understanding that he act lawfully, and in both cases the defendant violated this trust. Such a violation is indicative of recidivist tendencies. Moreover, like violation of pretrial conditional release, violation of conditional release following a parole violation is not otherwise reflected in a defendant's criminal history level. Thus, Terpening's violation of conditional release, though not specifically listed in the statute, is an indication that his "criminal history significantly under-represents ... the likelihood that [he] will commit further crimes" and consequently is a proper factor for upward departure under section 4A1.3.

Terpening next challenges the district court's conclusion that his past criminal history was not adequately represented in his prior history level under the Guidelines. Terpening argues that the district court did not make sufficiently specific findings to support this conclusion.

We apply an exacting standard in reviewing the sufficiency of a district court's findings under section 4A1.3. See United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989). In Michel, the district court found as follows:

Departure from the guidelines ... is justified ... because the guideline sentence does not adequately reflect defendant's criminal history. Since defendant is in the highest category by reason of several convictions, additional convictions which would otherwise be included in the calculation add nothing further. Defendant is very close to career criminal status. Other similar criminal conduct is not reflected. All of this reflects strong recidivist tendencies.

Id. at 786, quoting District Court Opinion. We found this "conclusory statement of reasons" to be inadequate, and remanded for the district court to "clearly identify the specific aggravating circumstances present in this case." Id.

Here, the district court stated:

The offenses in the past make it clear to me that there's every likelihood that [Terpening] will be involved in further criminal activity. And for that reason I am going to depart upward in this case pursuant to Guideline 4(A)1.3, based on the extensive prior criminal record and the fact that I do believe it's likely he will be involved in further criminal activity.

This finding is no less conclusory that the one held inadequate in Michel. Therefore, we conclude that the district judge failed to supply adequate reasons for his upward departure based upon Terpening's past criminal history.

If a sentencing court relies on both proper and improper factors in departing upward under section 4A1.3, the sentence must be vacated and the case remanded. United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir. 1989). Accordingly, we vacate Terpening's sentence and remand to the district court for a more specific statement of the reasons justifying an upward departure.

III

Finally, Terpening argues that his sentence exceeds the statutory maximum. Terpening failed to raise this issue to the district court. As a general rule, we will not consider issues raised for the first time on appeal, and we decline to do so here. United States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir.), cert. denied, 484 U.S. 832 (1987).

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.