Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

MEMORANDUM^** 

Richard Alan Chandler appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his guilty plea to two counts of unarmed bank robbery and to one count of armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (d). Chandler contends that the district court's decision to depart upward and sentence him to 120 months was unlawful because the district court used pending, out-of-district cases to support its finding that the criminal history category under U.S.S.G. Sec. 4A1.1 did not adequately reflect the seriousness of Chandler's past criminal conduct, and because the district court purportedly failed to justify the extent of the departure. We have jurisdiction under 28 U.S.C. § 1291. We vacate the sentence and remand for resentencing.

A sentencing court may use pending charges as a basis for upward departure. United States v. Gayou, 901 F.2d 746, 749 (9th Cir. 1990). Meaningful appellate review of the reasonableness of a sentence requires that the sentencing court articulate with sufficient specificity the reasons for any departure from the recommended sentence under the Guidelines. See 18 U.S.C. § 3553(c) (2); Gayou, 901 F.2d at 749. Where a district court fails to give specific reasons for a sentence outside the Guidelines, the sentence should be vacated and the case remanded for resentencing. See id. at 750.

Chandler's contention that the pending out-of-district cases were an improper basis for departure is without merit. The 18 unindicted robberies constitute specific aggravating circumstances not adequately considered by the Sentencing Commission in drafting the Guidelines and can justify an upward departure. See id. at 749.

The presentence report found that Chandler had admitted to robbing at least 22 banks at about the time of his arrest. However, the indictment here charged Chandler with only four counts of bank robbery. Under the Guidelines, the three counts to which Chandler pleaded guilty resulted in a recommended range of 57 to 71 months incarceration. The presentence report concluded that, due to the 18 unindicted robberies, the recommended range significantly under-represented the seriousness of Chandler's criminal history. To compensate, the report recommended an upward departure to 87 months. The report arrived at this figure by determining what Chandler's offense level would have been if the indictment had charged him on all 22 admitted robberies.

Chandler also contends that the district court failed to give sufficient reasons for the departure from the recommendation of the presentence report. This contention has merit. The district court departed to 120 months without articulating specific reasons for the extent of this departure. Although reasons for a departure to 87 months were provided in the presentence report, the district court must explain the additional departure to 120 months. See Gayou, 901 F.2d at 749-50. It did not do so. Without the benefit of clear and specific reasons for the extent of the district court's departure we are unable to review the reasonableness of the 120 month sentence. See id.; United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989).

Thus, although the district court correctly determined that departure was proper in this case, the court's failure to give specific reasons for departing to the extent it did requires us to vacate the sentence and remand the matter for resentencing. See Gayou, 901 F.2d at 749-50.

VACATED AND REMANDED.