Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1991)

MEMORANDUM^** 

The presentence report, incorporated by reference into the district court's statement of reasons, SER 10, recommended departure because Long's criminal history category did not adequately reflect the seriousness of his prior conduct. PSR 15. The first reason given, that three of Long's adult criminal convictions were excluded as being too remote in time, see Sentencing Guideline Sec. 4A1.2(e), was not an appropriate basis for departure. A court may not depart because convictions were excluded under section 4A1.2(e) unless the prior conduct was similar to the charged offense or the defendant received a substantial portion of his livelihood from the offense. United States v. Notrangelo, 909 F.2d 363, 366-67 (9th Cir. 1990); Sentencing Guideline Sec. 4A1.2 application note 8. Neither circumstance was present here.

The second reason given, that Long exhibits a tendency toward violence not reflected in his criminal history category, is a permissible basis for departure. However, the district court may not consider the criminal history category inadequate simply because violent convictions were excluded under section 4A1.2(e); section 4A1.2(e) excludes all stale convictions from consideration, not just nonviolent ones. The district court may depart only if it finds that certain crimes--whether excluded under 4A1.2(e) or not--were so unusually violent that they indicate an unaccounted for propensity for violence. We cannot tell whether the district court departed because the defendant's violent crimes were excluded under section 4A1.2(e) or because it believed they were exceptionally violent. We must therefore remand. If the district court chooses to depart again, it must make detailed findings that the defendant's past acts were so unusually violent that they warrant departure.

In addition, the sentence imposed was unreasonable. When the inadequacy of the criminal history category is the basis for departure, the district court must "justify the extent of its departure by analogy to the guideline sentences of defendants in a higher criminal history category." United States v. Rodriguez-Castro, 908 F.2d 438, 443 (9th Cir. 1990); see Sentencing Guidelines Sec. 4A1.3. Here, the district court did not state the criminal history category to which it referred. The sentence it imposed falls at the high end of the range for category VI. The court did not justify why such a sentence was appropriate for a defendant in category I.

Because Long has already served a term in excess of the guidelines range for his criminal history category, the mandate shall issue forthwith and the case is remanded to the district court for immediate resentencing.

VACATED AND REMANDED.