Unpublished Disposition, 931 F.2d 899 (9th Cir. 1991)

No. 90-50202.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING, D.W. NELSON and REINHARDT, Circuit Judges

MEMORANDUM^* 

Blaine Yoakam appeals the district court's upward departure from the prescribed sentencing range under the Sentencing Guidelines, imposing a 60-month sentence for unarmed bank robbery. From an offense level of 17 and a criminal history category of II, the district court calculated Yoakam's guideline sentencing range at between 27 and 33 months. The district court then asked the prosecutor to list every conviction Yoakam had ever had, regardless of age or type. The court reasoned that if all the prior convictions had been counted, Yoakam would have been placed in a criminal history category of VI. Based on an offense level of 17 and a criminal history category of 51 and 63 months. The district court used this rationale to justify an upward departure to 60 months. Yoakam argues that the district court erroneously based its departure upon convictions both too old to be calculated and involving misconduct dissimilar to the charged offense. We agree.

THE REQUIREMENT OF SIMILAR MISCONDUCT

The Sentencing Guidelines establish specific limitations for those remote offenses eligible for consideration. Section 4A1.2(e), titled "Applicable Time Period," reads in pertinent part as follows:

(1) Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.

(2) Any other prior sentence that was imposed within ten years of the defendant's commencement of the instant offense is counted.

(3) Any prior sentence not within the time periods specified above is not counted.

Application note 8 to Sec. 4A1.2 explains when a court may go outside those limitations. It states in pertinent part:

If the government is able to show that a sentence imposed outside this time period is evidence of similar misconduct or the defendant's receipt of a substantial portion of income from criminal livelihood, the court may consider this information in determining whether to depart and sentence above the applicable guidelines range.

(Emphasis added). In United States v. Leake, 908 F.2d 550 (9th Cir. 1990), this court noted that "the Guidelines reject the possibility that an upward departure could be based on remote convictions having no similarity to the offense for which the defendant is being sentenced." Id. at 554.

The district court, without the benefit of the Leake court's analysis, apparently believed that note 8 did not apply to the use of prior convictions in departing upwards, stating:

It should be noted that [Section] 4A1.2 application note 8 dealing with the applicable time period applies specifically to the preceding [Section] 4A1.1 criminal history category. There is no indication in the Guidelines that the [Section] 4A1.3 adequacy of criminal history category is subject to the same time limitations.

The court merely relied upon a laundry list of Yoakam's past convictions, acting as if a departure was warranted by each and every one of those convictions.

In United States v. Notrangelo, 909 F.2d 363 (9th Cir. 1990), this court stated:

Although it was proper for the sentencing court to look to Notrangelo's prior sentences as "reliable information" indicating that the criminal history category did not reflect the seriousness of his past conduct, it should not have automatically taken all of the prior convictions into account without considering their similarity to the charged offense or their impact on the defendant's livelihood.

Id. at 367. Therefore, by aggregating all of Yoakam's prior convictions to justify an upward departure, without a consideration consistent with Notrangelo and Sec. 4A1.2, the district court was in error.

WHAT CONSTITUTES SIMILAR MISCONDUCT

Our analysis may end here; we feel compelled, however, to address the government's argument that Yoakam's prior misconduct was similar to the charged offense.

There was a dispute in the district court over the facts of two of Yoakam's prior sex offenses. Yoakam objected to a characterization of physical force with regards to the Ventura County conviction and the use of a knife in the Yolo County conviction. The district court originally indicated it would not consider these issues, yet later indicated that it was unsure whether it might need to consider them. The district court cannot consider the similarity of these offenses to the charged offense without a resolution of these factual disputes.

Furthermore, the government argues that, in concert, the two misdemeanor convictions involved in the 1978 Reno offense would have supported a conviction for robbery under California law. However, a departure based on these offenses would only be permissible if the government could "show that a sentence imposed outside" the allowed time period was relevant. U.S.S.G. Sec. 4A1.2, comment. (n. 8) (emphasis added). That is, the Guidelines require the government to show an imposed, not a conjectured, sentence.

Therefore, on remand, if it decides to depart upward, the district court must consider the similarity of Yoakam's misconduct to his charged offense, after resolving any factual disputes, in a manner consistent with the law of this circuit.

CONCLUSION

Accordingly, we VACATE the sentence and REMAND for resentencing.