Unpublished Disposition, 923 F.2d 864 (9th Cir. 1989)

No. 89-10632.

United States Court of Appeals, Ninth Circuit.

Before SKOPIL and KOZINSKI, Circuit Judges, and SINGLETON,^*  District Judge.

MEMORANDUM^** 

Christopher Valenzuela appeals the district court's imposition of a twenty year sentence of imprisonment for the crime of second degree murder. He contends that the district court erred by (1) not allowing him to cross-examine a witness at sentencing; and (2) choosing to depart upward from the sentence that would have been imposed under the Sentencing Guidelines. We conclude that the district court failed to give adequate and specific reasons to justify its departure. Accordingly, we vacate the sentence and remand for resentencing.

* On April 8, 1989, on the Tohonom O'odham Indian Reservation in Arizona, Valenzuela stabbed a friend with a knife. The victim died the next day. Valenzuela pleaded guilty to the offense of second degree murder pursuant to a plea agreement that provided that his sentence would not exceed 135 months.

At a sentencing hearing, Valenzuela objected to the recommendation of the presentence report that the district court depart from the sentencing guideline range of 121-151 months' incarceration. He also objected to the court's decision to allow the victim's father to make a statement in court. Valenzuela's request to cross-examine the witness was denied.

The district court advised Valenzuela that an upward departure from the sentencing guidelines would be made. Valenzuela was given the opportunity to withdraw from the plea agreement. When Valenzuela later reaffirmed his plea, the court sentenced him to 240 months' imprisonment and five years' supervised release. The judge explained that it appeared to him that Indians on the reservation "seem to have no reluctance to use violence--knives, weapons, firearms, and so forth--in situations where there has been drinking going on most of the time...." Hearing Transcript, p. 13. The judge reasoned that in prior cases he had "tried to impose a sentence that the defendant would have received if he were being sentenced in the State Court, and the crime had not been committed on the reservation." Id.

The judge also filed a statement of reasons for imposing a sentence outside the sentencing guidelines. CR 38. In that written statement, the court noted that the sentencing guidelines range was 121-151 months but that an upward departure was warranted because of defendant's " [h]istory, propensity to use deadly weapons, and prior murder charge under very similar conditions...." Id.

II

We find no error in the district court's refusal to allow Valenzuela to cross-examine a witness at sentencing. We have held that a sentencing judge may rely on testimony of witnesses that the defendant was not permitted to cross-examine or confront. United States v. Notrangelo, 909 F.2d 363, 365 (9th Cir. 1990). We reasoned that " [t]he procedural safeguards and evidentiary limitations afforded defendants in criminal trials are not required at sentencings." Id. at 366. See also United States v. Beauliea, 893 F.2d 1177, 1180 (10th Cir.) (constitutional rights to confrontation and cross-examination do not apply at non-capital sentencing proceedings), cert. denied, 110 S. Ct. 3302 (1990); United States v. Giltner, 889 F.2d 1004, 1008 (11th Cir. 1989) (defendant may constitutionally be denied the opportunity to call and cross-examine witnesses at sentencing); United States v. Carmona, 873 F.2d 569, 574 (2d Cir. 1989) (sentencing judge may rely on evidence given by witnesses whom the defendant could neither confront nor cross-examine).

III

We agree with Valenzuela that the district court failed to adequately justify its decision to depart or to explain the degree of departure. The court departed from the sentencing guidelines apparently on the basis of Valenzuela's criminal history. "The Guidelines permit a court to depart if it finds that a defendant's criminal history category does not adequately reflect the defendant's 'past criminal conduct or the likelihood that the defendant will commit other crimes....' " United States v. Singleton, 917 F.2d 411, 412 (9th Cir. 1990) (quoting Guideline Sec. 4A1.3). Since the guidelines have already accounted for criminal history, however, "a court should depart based on inadequate criminal history only in those limited cases when a defendant's record is 'significantly more serious' than that of other defendants in the same criminal history category." Id. (quoting United States v. Gayou, 901 F.2d 746, 748 (9th Cir. 1990)).

Here, the court justified its departure on the grounds of " [h]istory, propensity to use deadly weapons, and prior murder charge under very similar conditions...." CR 38. The mere mention of the word "history" is clearly inadequate. See United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989) (conclusory statement that defendant's criminal history category significantly underrepresents the seriousness of the defendant's criminal history is inadequate to permit meaningful appellate review). The other two grounds--the propensity to use weapons and the similarity of the prior offenses and the current offense--both might support a departure from the guidelines. See Singleton, 917 F.2d at 413 (propensity); United States v. Chavez-Botello, 905 F.2d 279, 281 (9th Cir. 1990) (similarity of offenses). The district court, however, failed to "specify the particular facts of [the] defendant's history that illustrate why the defendant is unlike other defendants in the same category." Singleton, 917 F.2d at 412 (emphasis added). A sentence is not reviewable when the sentencing court fails to articulate adequately the grounds for departure. United States v. Ward, 914 F.2d 1340, 1348 (9th Cir. 1990).

The court also should have justified its degree of departure by "analogizing to the criminal history category in the Sentencing Guidelines in which the defendant's 'true history' places him, stating its reasons for the analogy." Id. It was clearly "inappropriate for the district judge to refer to his pre-guidelines sentencing habits in setting the amount of departure." United States v. Pearson, 911 F.2d 186, 190 (9th Cir. 1990). Moreover, the court's reference to state sentencing practices to justify its extent of departure was error. See United States v. Rodriquez-Castro, 908 F.2d 438, 442 (9th Cir. 1990) (rejecting contention that there be proportionality between federal guideline sentences and state sentences for the same types of offenses). A remand is required when the sentencing court fails to adequately explain its degree of departure. United States v. Todd, 909 F.2d 395, 396 (9th Cir. 1990). Accordingly, we vacate Valenzuela's sentence and remand to allow the district court to resentence Valenzuela.

VACATED and REMANDED for resentencing.