Unpublished Disposition, 904 F.2d 711 (9th Cir. 1990)

MEMORANDUM

Brion and Spell appeal their sentences imposed following guilty pleas for bank robbery and aiding and abetting in violation of 18 U.S.C. §§ 2 & 2113(a). Spell also pleaded guilty to armed bank robbery in violation of 18 U.S.C. § 2113(d). Under the Sentencing Guidelines, Brion's adjusted offense level was 20 and his total criminal history score was 9. Brion is in criminal history category IV. The sentencing guideline range is from 51 to 63 months' imprisonment. Brion was sentenced to 120 months. Under the Sentencing Guidelines, Spell's adjusted offense level was 24 and his total criminal history score was 11. Spell is in criminal history category V. The sentencing guideline range is from 92 to 115 months' imprisonment. Spell was sentenced to 180 months. Brion and Spell argue that the district court erred in sentencing them 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 vacate and remand for resentencing.

In imposing Brion and Spell's sentences, the district court departed upward from the Guidelines' recommended sentencing range. The district court cited four factors: (1) their parole status when they committed the robbery, (2) their use of weapons, (3) the bank robbery occurred so soon after they were released from prison, and (4) their criminal history score did not adequately reflect the serious of their past criminal conduct or the likelihood that they would commit more crimes in the future. In this appeal, Brion and Spell contend that these factors were adequately taken into account by the Sentencing Commission when it formulated the Guidelines and that therefore they cannot be used as a basis for departure.

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).

Initially, we address Brion and Spell's contention that the district court erred by departing based upon its conclusion that Brion and Spell's criminal history score underrepresented the seriousness of their past criminal behavior. Guidelines section 4A1.3 provides that a court may depart from the Guidelines' recommended sentencing range " [i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." United States Sentencing Commission, Guidelines Manual, Sec. 4A1.3 (Nov.1989) (U.S.S.G.). When a district court chooses to depart on the basis of a defendant's criminal history, however, our law is clear that a general statement that a defendant's criminal history score underrepresents the seriousness of a defendant's past criminal conduct "is inadequate to permit meaningful appellate review of the district court's departure from the Guidelines." United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989) (Wells) . The district court must state "the specific reason for the imposition of a sentence different from that described" in the Guidelines. 18 U.S.C. § 3553(c).

Here, the district court failed to give specific reasons why Brion and Spell's criminal history scores so greatly underrepresented the seriousness of their past criminal conduct. Although at one point the sentencing transcript indicates that the district court, in a dialogue with Spell's attorney, suggested that Spell's prior uncharged robberies were part of the reason for his departure, the sentencing transcript contains no indication that this was the sole or primary reason the district judge concluded that Brion and Spell's criminal history scores underrepresented the seriousness of their past criminal conduct. Indeed, the district court specifically declined to give specific reasons stating:

You can go on and on and pick out isolated factors and say, yes, this is covered here and yes this is covered here, but the point of fact, it's the court's duty to look at the total picture of these two individual and to see that based on the past record, based on the present conduct, the Court can make a provision that without substantial periods of incarceration, these two individuals have shown us every likelihood that they're going to go right back out there and behave in the way they've behaved every time they've been on the streets.

While we may sympathize with the district court's viewpoint, we must follow the clear dictates of the statute and our precedent which requires the district court to isolate and identify specific elements of a defendant's criminal history that have not adequately been considered by the Guidelines. See Wells, 878 F.2d at 1233; 18 U.S.C. § 3553(c).

In addition to the district court's failure to delineate what specific factors of Brion and Spell's criminal history were underrepresented by the Guidelines, the district court also failed to indicate why it chose the actual sentence it did. If the district court concludes that a defendant's "criminal history category is under-representative of the defendant's past criminal conduct, the district court should 'use, as a reference, the guideline range for a defendant with a higher ... criminal history category.' " United States v. Cota-Guerrero, No. 89-30082, slip op. 4613, 4619 (9th Cir. May 10, 1990), quoting U.S.S.G. Sec. 4A1.3; Wells, 878 F.2d at 1233 (concluding that the district court's statement of its reasons for departure was inadequate because the court did not "indicate why it chose to place Wells in category VI (the highest criminal history category) as opposed to category V, an intermediate category"); United States v. Gayou, No. 89-30096, slip op. 3747, 3753-55 (9th Cir. Apr. 13, 1990) (Gayou) .

Here, the district court failed to offer any explanation as to which higher criminal history category was appropriate. Indeed, the court's departure decision was apparently made without reference to the proper criminal history category. Brion's Guidelines offense level was 20 and his criminal history category was IV, yielding a sentencing range between 51 and 63 months. See U.S.S.G. Sec. 5A (sentencing table). Rather than departing upward to criminal history category V or VI, which would have yielded sentencing ranges of 63-78 months and 70-87 months respectively, id., the district court sentenced Brion to 120 months, which is a sentence near the top of the guideline range for a defendant at offense level 24 with a criminal history category of VI. Id. Spell's sentence is similar. His adjusted offense level was 24 and his criminal history category was V, yielding a sentencing range of 92-115 months. Again, rather than departing upward to criminal history category VI, the highest category, and imposing a sentence within the 100-125 month range, the district court sentenced him to 180 months, which amounts to a sentence near the top of the range for a criminal history score of 29 and a criminal history category of VI. Id. The district court's failure to offer any explanation for these leaps to what amounts to both a higher criminal history score and a higher offense level leaves us unable to perform any meaningful review of the propriety of the departure. Wells, 878 F.2d at 1233. Indeed, the district court's failure to explain the sentence here is no different than the district court's sentence in Gayou, of which we stated:

the district court's sentence was almost double the sentence allowed by the highest criminal history category for Gayou's offense level. Yet the court failed to indicate how it arrived at the sentence that it imposed. It did not refer at all to the Guideline ranges set for criminal histories that resulted in categories just above the category applicable to Gayou. The court's silence makes it impossible for us to review the reasonableness of the departure.

Gayou, slip op. at 3755.

We therefore vacate Brion and Spell's sentences and remand to the district court so that it may articulate the reasons for its departure decision with reference to specific aspects of Brion and Spell's criminal history that it believes are insufficiently represented by the Guidelines and with reference to the criminal history categories already established by the Sentencing Commission.

We do not address Brion and Spell's contentions that the other reasons stated by the district court to justify its departure decision were already adequately considered in the Guidelines. See United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir. 1989) (holding that if a sentencing court relies on both proper and improper factors in departing under section 4A1.3, the sentence must be vacated and remanded).

VACATED AND REMANDED FOR RESENTENCING.

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.