Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1991)

MEMORANDUM^* 

Defendant-Appellant Farmer was charged in a nine-count indictment with three counts of burglary in violation of 18 U.S.C. § 13 and various Hawaiian statutes, three counts of theft and one count of receiving stolen property in violation of 18 U.S.C. § 641, and two counts of making a false statement in violation of 18 U.S.C. § 1001.

Farmer brought a motion to sever the different counts which was denied. He was convicted on several counts. In sentencing Farmer, the district court departed from the applicable guideline range of 41-51 months and sentenced Farmer to 144 months incarceration, three years supervised release and $5,701.74 in restitution. Farmer appeals the district court's denial of his severance motion, as well as his sentence. We affirm.

Farmer contends the district court erred in failing to grant his pretrial motion to sever the indictment counts and conduct separate trials. He maintains that the joinder of the burglary, theft, and receipt of stolen property offenses, which occurred on separate occasions, was an impermissible attempt to cumulate evidence of several offenses to obtain a conviction on one offense.

Because Farmer failed to renew his motion for severance at the close of evidence, he failed to preserve the issue for appeal, and thereby waived it. See United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir. 1989); United States v. Loya, 807 F.2d 1483, 1494 (9th Cir. 1987). We will therefore not consider this issue.

Farmer contends that the district court erred in departing upward from 41-51 months to 144 months because the circumstances the court relied upon were already taken into account by the Sentencing Commission, and because the sentence is unreasonable. Farmer maintains the district court improperly relied on four different factors in its departure, including (1) his four prior convictions; (2) his prior arrests; (3) the fact he maintained his innocence in connection with the crimes charged here; (4) his alcohol abuse; and (5) his eight misdemeanor convictions.

The Government urges us to apply the five-step process for reviewing upward departures from the Guidelines first laid out in United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir. 1990), reh'g en banc granted, 909 F.2d 1370 (9th Cir. 1990).¹  However, because Lira-Barraza will be reheard en banc to consider the standard of review for the various steps established in that case, we will apply the two-step review process utilized in United States v. Ward, 914 F.2d 1340, 1347 (9th Cir. 1990) (as amended).

Under that test, we first determine "whether a departure is permissible on the grounds stated by the sentencing court." Ward at 1347, citing United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989). If the reasons articulated for the departure are proper, the panel must then determine whether the sentence is unreasonable. Id.

(1) Prior felony convictions

Farmer alleges that the district court improperly considered his four prior felony convictions in departing upwards because those convictions were already taken into consideration in formulating Farmer's criminal history under Sec. 4A1.2(e).

We find no merit in Farmer's contention. Although the district court acknowledged Farmer's prior convictions during the sentencing hearing, there is no evidence the district court actually relied on the convictions in departing upward.

(2) Prior arrests

Farmer maintains that the district court erred in considering his numerous prior arrests in its upward departure. Although a court may not consider "a prior arrest record itself" in departing from the applicable guideline range, see United States v. Cota-Guerrero, 907 F.2d 87, 90 (9th Cir. 1990), the district court here was not relying solely on the fact that Farmer had been previously arrested as a basis for departure.

Rather, the court was relying on the fact that the arrests all involved similar conduct--namely, theft. A prior arrest which amounts to "prior similar adult criminal conduct not resulting in criminal conviction" can properly serve as a basis for an upward departure. See United States v. Montenegro-Rojo, 908 F.2d 425, 430 (9th Cir. 1990) (as amended). Moreover here, unlike in Cota-Guerrero, the district court did not rely on mere arrest records; it relied on detailed descriptions of the conduct contained in the presentence report. The district court's consideration of Farmer's prior arrests was therefore proper.

(3) Failure to admit guilt

Farmer maintains that the district court erred in considering his failure to admit guilt for the thefts in upwardly departing because the Commission adequately considered that issue in formulating the guideline provision for acceptance of responsibility.

The record, however, indicates that the district court's remarks regarding Farmer's refusal to admit guilt reflected its concern with the defendant's continued recidivism. The court worried that Farmer's "pattern of recidivism, parole violation, and disregard for court orders indicate that prior rehabilitative and punitive measures of sentences up to five years have not persuaded [him] to obey the law."

A upward departure in sentencing is permissible on the basis of recidivism when a similarity exists between the prior and current offenses. See United States v. Chavez-Botello, 905 F.2d 279, 281 (9th Cir. 1990). Where a defendant's relapse into the same criminal behavior suggests that he is likely to repeat the offense, a district court's departure on the basis of recidivism is proper. Id. The sentencing court's consideration of Farmer's failure to admit guilt, which was part of its broader concern regarding his recidivism, was not erroneous.

(4) Alcohol abuse

We find no basis for Farmer's assertion that the district court erred in relying on his history of alcohol abuse as a basis for upward departure. The district court did not consider Farmer's alcoholism itself as a basis for departure; it based the departure on the threat Farmer posed to public safety by his continued practice of driving while intoxicated. Departure based on a defendant's continued threat to public safety is proper. See United States v. Rodriguez-Castro, 908 F.2d 438, 441 (9th Cir. 1990).

(5) Prior misdemeanor convictions

Farmer argues that his eight misdemeanor convictions (three for driving under the influence, and five for criminal contempt of court) were are not proper grounds for departure because they were already considered by the Commission in formulating the guidelines.

Under U.S.S.G. Sec. 4A1.3(a), a sentencing court may consider prior sentences not used in computing the criminal history category in departing from the guideline range. Thus, the district court properly considered Farmer's eight misdemeanor convictions.

We find no evidence that the district court based its upward departure on any improper factors. Moreover, given the threat to public safety posed by Farmer's driving while intoxicated and his pattern of recidivism, we cannot say that the departure imposed by the district court was unreasonable. The sentence is therefore

AFFIRMED.