Unpublished Disposition, 908 F.2d 977 (9th Cir. 1990)

MEMORANDUM^** 

Defendants, Albert Alva Annin and Robert John Meengs, appeal from their sentences, which were imposed under the Sentencing Guidelines ("Guidelines"). Annin challenges the district court's upward departure from the applicable Guidelines range. We vacate the sentence imposed and remand for resentencing. Meengs alleges that the district court did not give adequate reasons for the sentence imposed and that it imposed a sentence greater than necessary when it sentenced him as a career offender. He also asks this court to remand for resentencing pursuant to a recent amendment to the Guidelines. We dismiss his appeal in part and affirm in part.

FACTS

Annin and Meengs were involved in three bank robberies from December 1988 through January 1989. They were apprehended on January 9, 1989, at a Bakersfield hotel. When the officers sought to apprehend Annin, he shot at the officers. The officers returned fire. One officer suffered injury due to the recoil of his own shotgun. Annin was wounded and placed under arrest. Meengs was later arrested.

Annin pleaded guilty to being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Meengs pleaded guilty to one count of the indictment and a one-count information. Both counts charged Meengs with bank robbery and assault with a dangerous weapon in violation of 18 U.S.C. § 2113(a) and (d). Annin and Meengs were subject to sentencing under the Guidelines.

In his Pre-Sentence Report ("PSR"), Annin was assessed an adjusted offense level of thirty and was placed in a criminal history category of III. The applicable range was 121 to 151 months. The statutory minimum sentence for his offense, however, was fifteen years. 18 U.S.C. § 924(e) (1). Pursuant to U.S.S.G. Sec. 5G1.1(b), this latter sentence applied, and the PSR recommended a term of imprisonment of 180 months, before departure.

The PSR also recommended an upward departure. The PSR noted that all of Annin's criminal history category points were derived from a single conviction for eight counts of armed robbery and one count of attempted armed robbery. The PSR noted that the criminal history category did not include a state conviction for the attempted murder of a peace officer at the January 9, 1989 Bakersfield shootout. The PSR also noted three felony convictions which were not counted because they were not within fifteen years of Annin's involvement in the instant offense. The PSR recommended a departure to a criminal history category of VI and a sentence of 210 months. This term of imprisonment was the maximum sentence in the range for an offense level of thirty and a criminal history category of VI.

The district court agreed with the PSR's recommendation and stated that the Guideline recommendation "grossly under-represents the defendant's prior record." The court departed to a 210 month term of imprisonment. Judgment was filed on August 2, 1989. Annin filed a timely notice of appeal on August 4, 1989.

Meengs' PSR described his criminal history as "atrocious." He had been convicted in California for first degree robbery of a business and in Nevada for robbery of a residence. In 1984, Meengs was convicted for residential burglary and armed robbery. Both of these convictions stemmed from a burglary in which Meengs struck an elderly victim with the butt of his gun. He and a co-defendant then gagged and tied the victim. Meengs was paroled in July 1988, but absconded from parole. A warrant issued for his arrest. Meengs was placed in a criminal history category of VI.

The PSR stated that Meengs was a career offender because he was over eighteen years of age, he had committed a crime of violence, and he had two prior felony convictions for crimes of violence. As a career offender, Meengs received an offense level of thirty-four. U.S.S.G. Sec. 4B1.1. The resulting range was 262 to 327 months. The PSR recommended a sentence at 294 months. To justify the sentence, the PSR stated that Meengs' "present offense illustrates a continuation of his prior involvement in violent felonies. The defendant was out of prison no more than five months when he committed the first of the robberies to which he has pled." The PSR concluded that, "The defendant's extremely violent and repetitive criminal history would justify not recommending a sentence at the low point of the guideline range."

At the sentencing hearing, Meengs objected to sentencing under the career offender provision because the sentence would be greater than necessary to accomplish the objectives of the Guidelines. The district court responded, "Well, I suppose the same argument was made when they paroled him and it took him four days, and that was in July of 1988." The court then referred to Meengs' long career and noted that he "was a picture-window case of a career criminal...."

Counsel suggested that a sentence of ten years would be more suitable. The court responded:

Well, with the use of, you know, weapons, automatic weapons and reviewing the last state charge in '84 from which he was paroled where he was striking the victims in the heads with the butt of shotguns, then gagging and tying the victims, and the personal abuse upon people, the Court disagrees with you....

The court explicitly stated that it was sentencing Meengs at the upper end of the Guideline range. Judgment was filed on August 2, 1989. Meengs filed a timely notice of appeal on August 11, 1989.

JURISDICTION

The district court had jurisdiction under 18 U.S.C. § 3231. Meengs contends that the district court imposed a sentence "greater than necessary" to accomplish the purposes set forth in 18 U.S.C. § 3553(a) (2). Meengs does not contest the applicability of the career offender provisions. Instead, he in effect seeks a downward departure. We do not have jurisdiction over an appeal from a district court's discretionary refusal to depart downwards from the Guidelines. United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990). We therefore dismiss this portion of Meengs' appeal. Under 18 U.S.C. § 3742, we have jurisdiction over Annin's appeal and the other portions of Meengs' appeal.

STANDARD OF REVIEW

For departures, this court reviews de novo whether a ground was adequately taken into consideration by the Sentencing Commission. United States v. Nuno-Para, 877 F.2d 1409, 1413 (9th Cir. 1989). We review whether the facts justify the decision to depart for clear error or for abuse of discretion. United States v. Gayou, No. 89-30096, slip op. 3747, 3750-51 (9th Cir. Apr. 13, 1990).

This court reviews the scope of statutory requirements under 18 U.S.C. § 3553(c) de novo. See United States v. Munster-Ramirez, 888 F.2d 1267, 1269 (9th Cir. 1989), cert. denied, --- U.S. ----, --- S. Ct. ----, 109 L. Ed. 2d 313 (1990). As to whether the district court stated sufficient reasons for imposition of sentence, this court "shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e).

DISCUSSION

Annin contends that the district court erred in its upward departure from the applicable Guideline sentence. The district court relied on three factors in departing. First, it considered stale convictions which were not used in the criminal history calculation. U.S.S.G. Sec. 4A1.3(a). These convictions may be used for departure. They involved theft and drug offenses; the same sort of conduct which was involved here. U.S.S.G. Sec. 4A1.2, app. note 8. See United States v. Richison, No. 89-10080, slip op. 3345, 3351 (9th Cir. Apr. 20, 1990) (per curiam). See also United States v. Jackson, No. 89-6118 slip op. 1, 17 n. 7 (10th Cir. May 22, 1990).

Second, the district court relied on the eight counts of armed robbery and one count of attempted armed robbery which were consolidated for sentencing in 1982. Each count was for a separate robbery. The court construed this conviction to cover separate violent felonies. Departure on this basis was proper. See United States v. Dorsey, 888 F.2d 79, 81 (11th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 756, 107 L. Ed. 2d 772 (1990).

Third, the district court relied on Annin's state conviction for attempted murder of a police officer. This conviction was based on conduct for which offense level points were assessed. That is, Annin received a base offense level of twenty for assault with intent to commit murder. U.S.S.G. Sec. 2A2.1. He also received enhancements for discharge of a firearm, U.S.S.G. Sec. 2A2.1(b) (2), for bodily injury, U.S.S.G. Sec. 2A2.1(b) (3) (A), and for the victim's official status. U.S.S.G. Sec. 3A1.2.

It is true that the final Guideline recommendation was based on the mandatory minimum of 18 U.S.C. § 924(e) (1). This term applies, however, only after the 180 month term is compared with the otherwise applicable Guideline range of 121 to 151 months. U.S.S.G. Sec. 5G1.1. But for the mandatory minimum, Annin would have been subject to a lesser sentence. The state offense was considered in the Guideline calculation; and that calculation indicated what the Commission considered to be a proper offense level were it not for the statutory minimum.

Therefore, the state offense was not a valid basis for departure. Its use infects the decision to depart. When the district court considers valid and invalid reasons for departure, the case must be remanded for resentencing. Nuno-Para, 877 F.2d at 1414. We therefore vacate Annin's sentence and remand for resentencing.¹ 

Meengs makes two arguments on appeal. First, he argues that the district court did not state adequate reasons for the sentence imposed. Under 18 U.S.C. § 3553(c), if the Guideline range spans a period more than twenty-four months, the sentencing court must state "the reason for imposing a sentence at a particular point within the range." This requirement is not as exacting as the statement of a "specific reason" for a departure from the Guideline range. See United States v. Cervantes, 878 F.2d 50, 54 (2d Cir. 1989).

The district court here stated adequate reasons for sentencing Meengs at the top of the Guideline range. The district court, in response to Meengs' request to consider his advanced age, stated that he had committed a crime within four days of being released on parole. The court found that Meengs was a "picture-window case of a career criminal" and that a high sentence was required "solely for the protection of the public." When Meengs made a request for a ten-year term of imprisonment, the court described the circumstances of Meengs' 1984 convictions for residential burglary and armed robbery. These remarks support the court's imposition of a sentence at the maximum of the Guideline range.

Second, Meengs requests remand for resentencing because of a recent amendment to U.S.S.G. Sec. 4B1.1, which permits a downward adjustment in offense level for acceptance of responsibility by career offenders. Meengs argues that 18 U.S.C. § 3582(c) (2) permits this court to order resentencing. That provision allows the court to reduce the term of imprisonment if the applicable Guideline range has been lowered since the time of sentencing. The amendment in question, however, is not listed in U.S.S.G. Sec. 1B1.10(d). As such, the Guidelines provide that a reduction under 18 U.S.C. § 3582(c) (2) would be inappropriate. We, therefore, reject his request.

CONCLUSION

We VACATE Annin's sentence and REMAND his case for resentencing. We DISMISS that portion of Meengs' appeal which alleges a violation of 18 U.S.C. § 3553(a) (2). In all other respects, we AFFIRM the judgment of the district court as to Meengs.

SNEED, Circuit Judge, Concurring in Part, and Dissenting in Part:

I join in the court's disposition except as to the remand to permit the resentencing of Annin. The court holds that a specific state offense "was not a valid basis for departure." p. 7. The reason for this conclusion is that the specific state conviction for attempted murder of a police officer had previously been used in determining the applicable Guideline sentence and, as a consequence, could not be used to support an upward departure of the statutory minimum sentence that exceeded the applicable Guideline sentence.

I would readily agree were it true that the "upward departure effect" of the state attempted murder conviction had been used twice. I do not think that occurred. The court appears to think, figuratively speaking, that in fixing Annin's sentence, the district court used pitons and safety ropes over and over again to reach the summit (the proper sentence). Another image more accurately describes the action of the district court. After finding that one ladder did not enable it to reach a high shelf (the proper sentence), the district court joined that ladder to another longer ladder (the statutory minimum) to reach that high shelf.

The "short ladder" was effectively used only once. Previously its use was part of an experiment that failed. To treat that use as indistinguishable from its "effective use" is to ignore common experience. This becomes clear when another common situation is recalled. A piece of a jigsaw puzzle often is tentatively placed in one spot or another in the emerging picture only to find that it does not "fit." Sooner or later, however it does "fit." Was the piece used only once or many times? Most would say, I submit, only once.

United States v. Nuno-Para, 877 F.2d 1409 (9th Cir. 1990), is cited by the majority as requiring the result reached by it. The case is inapplicable to the facts of this case. In Nuno-Para an upward departure was based on a proper and improper factor with no indication of what the departure would have been without the improper factor. A remand to the district court for resentencing was necessary. In this case we know what role the alleged improper factor played. The only issue is whether it is an improper factor. Nuno-Para provides no help in resolving this issue. Its resolution turns solely on whether there has been a double use of the state conviction for attempted murder. There was no such use.