Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1990)

MEMORANDUM^** 

Saul Avila, aka Sergio Rios Bustamante, appeals his sentence imposed under the United States Sentencing Guidelines ("Guidelines"), following his guilty plea to being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. Avila argues that the district court erred by failing to state specific facts warranting an upward departure from the Guidelines sentencing range. Avila also contends that the Guidelines violate due process because the criminal history category considers the defendant's likelihood of recidivism. We have jurisdiction under 28 U.S.C. § 1291 and affirm the sentence.

This court reviews de novo the district court's application of the Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990).

The district court may depart from the Guideline range when the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes. U.S.S.G. Sec. 4A1.3. The district court must identify and articulate specific reasons for departing from the Guidelines. 18 U.S.C. §§ 3553(b), (c) and 3742(e) (3); see United States v. Montenegro-Rojo, 908 F.2d 425, 427 (9th Cir. 1990).

Avila contends that the district court "did not state in what particular manner Mr. Avila's record was under-represented nor did it point to specific facts which were not considered in the guidelines calculations...." Appellant's Brief at 6. Nevertheless, the district court expressly adopted the presentence report's ("PSR") reasons supporting its recommendation for an upward departure under U.S.S.G. Sec. 4A1.3. The PSR explained in detail Avila's criminal history and concluded that the criminal history category did not adequately reflect Avila's past criminal conduct.¹  The district court added,

Mr. Rios, it's incredible the amount of record you have acquired at the age of 26, the number of aliases you use, the birth dates, the criminal record, the contact with the criminal justice system, the prisons. The whole thing, as set out in this report, is one of the most significant criminal records I have come across in 18 years.

(RT 7/9/90 at 7).

With support from the PSR, the district court adequately identified its reasons for concluding that Avila's criminal history category was under-represented. See Montenegro-Rojo, 908 F.2d at 428.

Avila contends further that the district court erred by accepting and relying on the PSR's statements concerning recidivism. He argues that "speculation by the Court of an individuals [sic] likelihood to commit a crime which is used as a justification for an upward departure is unconstitutional and a denial of due process." Appellant's Brief at 8.

We decline to address this issue because Avila did not raise it before the district court or in his written objections to the PSR. See United States v. State of Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985). In any event, the district court clearly stated that its departure was based on the under-representation of Avila's criminal history, and not on recidivism.

AFFIRMED.