Unpublished Disposition, 923 F.2d 864 (9th Cir. 1991)

MEMORANDUM^** 

Donald Kent Taylor appeals his sentence of 108 months incarceration to be followed by four years of supervised release, imposed after he pled guilty to distribution of 986.7 grams of cocaine in violation of 21 U.S.C. § 841(a) (1). Taylor contends the district court erroneously departed upward from the Sentencing Guidelines on the ground that his criminal history category did not adequately reflect the seriousness of his past criminal conduct. "When reviewing departures from the sentencing guidelines, this court must determine first whether departure is permissible, and then whether the sentence imposed is unreasonable." United States v. Chavez-Botello, 905 F.2d 279, 280 (9th Cir. 1990) (per curiam). We affirm.

Pursuant to Sec. 4A1.3 of the Guidelines, the sentencing court may depart from the applicable guideline range " [i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct...." Taylor's criminal history category as calculated under the Guidelines failed to take into account his 1975 conviction for second degree robbery because the district court found Taylor's nolo contendere plea constitutionally infirm. See U.S.S.G. Sec. 4A1.2, comment. n. 6. Yet the commentary that excludes invalidated convictions from the criminal history score also explicitly permits their consideration in determining whether to depart under Sec. 4A1.3. Id. Thus, the district court did not err in considering the 1975 robbery conviction as a basis for departure. See United States v. Cota-Guerrero, 907 F.2d 87, 90 (9th Cir. 1990) (court did not err in considering reversed conviction in deciding adequacy of criminal history category under Sec. 4A1.3).¹ 

In considering an upward departure based on the inadequacy of the defendant's criminal history score, "the court [should] use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable." Chavez-Botello, 905 F.2d at 281 (quoting U.S.S.G. Sec. 4A1.3); United States v. Cervantes Lucatero, 889 F.2d 916, 919 (9th Cir. 1989). Moreover, in order to facilitate this court's review of a sentence, the district court must indicate which criminal history category it used or how it arrived at a particular sentence. Chavez-Botello, 905 F.2d at 281; Cervantes Lucatero, 889 F.2d at 919.

We find no error in the district court's application of U.S.S.G. Sec. 4A1.3. Based on reliable information indicating that Taylor's criminal history category was inadequate, the district court applied criminal history category V rather than category IV and selected a sentence within the corresponding guideline range (92 to 115 months). The district court properly referred to and applied a criminal history category that more accurately represented Taylor's past criminal conduct and imposed a reasonable sentence.

AFFIRMED.