Unpublished Disposition, 908 F.2d 978 (9th Cir. 1990)

MEMORANDUM^* 

Nancy Jean Miller appeals her thirty-month sentence imposed upon her guilty plea to possession of stolen mail. She contends that the district court erred in departing upward from the guidelines range of six to twelve months. We vacate the sentence and remand for resentencing.

The district court explained its decision to depart upward as follows:

Well, on this matter, I'm going to depart from the guidelines, and I'm going to sentence Ms. Miller to the custody of the Attorney General for a period of 30 months.

I feel that the upward departure is justified for the following reasons: first of all, the fact that the involvement in this is ... more extensive than what is charged ... in fact, ... Ms. Miller does admit that on several occasions she, in fact, did, ... steal the mail.

Also, it appears that the credit cards were used far more extensively than may ever be known. I note, for example, they went to Chino to visit her [gentleman friend] in prison--is that the scope of this offense is so vast, and much vaster than the guidelines take into account.

To the extent that with this kind of offense, they basically calculate, essentially, on the amount of usage that there was, or as I did, the potential act of the Treasury checks, to that, that there were.

But when you look at the fact that the probation officer notes that the defendant possessed, jointly or severally, in the car or in her bedroom--in her house--63 access device numbers, credit cards, Treasury checks, several hundred blank and completed checks found in corporate mail.

The potential loss was extraordinary, and it was a very calculated, as I noted, offense, to the extent that to commence all of this took a great deal of time. It was cataloged, it was put in little files, so it could be readily used. And I find that the vastness of the scope justifies it.

The district court may impose a sentence above the guidelines range where "the court finds that there exists an aggravating ... circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines...." 18 U.S.C. § 3553(b) (West Supp.1990). We review such an upward departure according to a five-step process. We consider

(1) whether the district court adequately identified the aggravating circumstance;

(2) if so, whether the identified circumstance existed;

(3) if so, whether the Sentencing Commission took the circumstance adequately into consideration;

(4) if not, whether the circumstance should result in departure;

(5) if so, whether the extent of the departure was unreasonable.

United States v. Gomez, 901 F.2d 728, 729 (9th Cir. 1990), citing United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir. 1990).

We review de novo the first and third steps, the second step for clear error, and the fourth and fifth steps for an abuse of discretion. Gomez, 901 F.2d at 729, citing Lira-Barraza, 897 F.2d at 983-86.

First, the district court adequately identified the aggravating circumstances warranting departure; namely, Miller's admission that she had participated in several mail thefts, the vastness of the potential loss, the organization of credit cards and checks into file boxes.

Second, Miller admitted to the mail thefts, and it was not clearly erroneous for the district court to conclude that Miller organized the credit cards and checks into file boxes and possessed the file boxes.

The third step, however, has not been met. Miller's organization of credit cards and checks into file boxes was already taken into consideration in establishing Miller's offense level of eight. Two points were added to the base offense level for possession of stolen mail because the offense involved "more than minimal planning." See U.S.S.G. Sec. 2B1.2(b) (3) (B). A factor already calculated into the sentence under the guidelines is not an appropriate basis for departure. United States v. Nuno-Para, 877 F.2d 1409, 1413-14 (9th Cir. 1989). Where, as here, the district court departs upward because of a factor already accounted for by the guidelines, we must remand for resentencing. Id. at 1414.

In light of the remand, it is unnecessary for us to reach steps four and five or to consider Miller's other allegations of error. However, because resentencing in any event will be necessary, we note that the district court failed to give specific reasons for the extent of its departure from the guidelines range of six to twelve months. On remand, the district court should explain the reasons for the extent of any departure. See United States v. Gayou, 901 F.2d 746, 749-50 (9th Cir. 1990).

SENTENCE VACATED; REMANDED FOR RESENTENCING.