Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1989)

MEMORANDUM^** 

We vacate Franklin Antone's sentence and remand for resentencing because the district court failed to state clearly and with specificity the basis for its departure. On remand, the district court should apply the guidelines in effect at the time of Antone's offense. Antone's remaining contentions are without merit.

* We review a district court's departure from the sentencing guidelines according to the five-step procedure outlined in United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir.), reh'g granted, 909 F.2d 1370 (1990). In the first step of that process, "we require the district court to identify the specific aggravating ... circumstance present in the case, and to make a clear finding that the Commission did not adequately consider that circumstance." Id. (citations omitted).

The district judge explained at sentencing that he was "departing upward based on the defendant's relevant conduct, the extensive conduct that he had involving all these children and which he has admitted under the plea agreement." In his written Statement of Reasons for Imposing Sentence, the district judge stated that he departed upward "based on [defendant's] extensive criminal conduct." Because there are various instances of conduct to which the court could have been referring, we must remand for a more explicit articulation. "The district court must set forth the specific aspects of the defendant's criminal history or of the charged offense that the district court believes have not been adequately represented in the recommended sentence." United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989) (per curiam).

Nor was there a finding that the Sentencing Commission failed to consider adequately whatever the aggravating circumstance was. See id. (assertion that "criminal history category significantly underrepresents the seriousness of the defendant's criminal history" held to be insufficient explanation of reasons for departure); United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989) (sentence vacated where court's statement of reasons was "conclusory" and court failed to find that Sentencing Commission inadequately considered circumstances at issue); cf. United States v. Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir. 1990) (example of district court's detailed rationale for departing from guidelines).¹ 

The district court also did not explain its reasons for the degree of departure. Lira-Barraza, 897 F.2d at 986. When a district court departs from the guidelines on the basis of criminal history, it "is to 'use, as a reference, the guideline range for a defendant with a higher ... criminal history category.' " United States v. Cervantes Lucatero, 889 F.2d 916, 919 (9th Cir. 1989) (quoting U.S.S.G. Sec. 4A1.3). Thus, the court should indicate which criminal history category it is using by analogy or how it arrives at a particular sentence. Id.; see also Montenegro-Rojo, 908 F.2d at 431. If the departure is consistent with a criminal history category two or more categories greater than defendant's actual criminal history category, the district court should explain why the intermediate categories did not adequately reflect defendant's criminal history. See Wells, 878 F.2d at 1233. In any event, a departure that would result in a sentence that would exceed the permissible range for the highest criminal history could be justified, if at all, only for the most compelling and specifically articulated reasons.

II

On remand, the district court should apply the guidelines in effect at the time of Antone's offense, August 24, 1989.²  Sentencing Guideline Sec. 2A3.4 was amended effective November 1, 1989, which was between the time of Antone's offense and the time of his sentencing. U.S.S.G.App.C., p 95 (Nov. 1989). That amendment disadvantages Antone. Where a changed criminal law disadvantages a defendant and the government seeks to apply it to him retroactively, the application violates the ex post facto clause of the United States Constitution. United States v. Restrepo, 903 F.2d 648, 655 (9th Cir.), reh'g granted, 912 F.2d 1568 (1990). Therefore, the district court on remand should not apply the amended guidelines.

III

There is no merit to Antone's remaining contentions. There was no impermissible double counting of his victims' ages because they are specific offense characteristics used once to enhance the base offense level in Sec. 2A3.4, which encompasses offenses not involving such young victims.

The district court did not err in declining to factor in Antone's background. Such information is ordinarily not relevant to sentencing. SeeU.S.S.G. Secs. 5H1.1, p.s. (age), 5H1.2, p.s. (education), 5H1.4, p.s. (alcohol abuse), 5H1.5, p.s. (previous employment), 5H1.6, p.s. (community ties) & 5H1.10, p.s. (race and socio-economic status).

Antone waived his argument that he should have been credited with acceptance of responsibility because it is a question of fact not raised before the district court, there has been no change in the law germane to the appeal during its pendency and there are no exceptional circumstances to explain why it was not raised. United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990).

Antone's sentence is VACATED and REMANDED.