Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

MEMORANDUM^** 

Appellant David Hamilton appeals the district court's decision to depart upward from the Sentencing Guidelines in imposing his sentence after he was found guilty of having violated 18 U.S.C. § 922(g) (1). The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

* Appellant challenges the district court's decision to increase his base offense level for obstruction of justice. See U.S.S.G. Sec. 3C1.1. We find that the court's decision was not clearly erroneous. Contrary to appellant's argument, the court was not required to make detailed findings about which aspect of his testimony it found to be perjurious. United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.), cert. denied, 111 S. Ct. 394 (1990). As to the second ground given by the district court, appellant's misstatements about his financial status were material and thus provided an alternate basis for applying the two-level adjustment. See United States v. Beard, 913 F.2d 193, 199 (5th Cir. 1990).

II

The district court concluded that an upward departure from the guideline range of 24-30 months was warranted because appellant's Criminal History Category inadequately reflected his past conduct and the likelihood that he will commit further crimes. See U.S.S.G. Sec. 4A1.3. Of the reasons given by the district court, appellant challenges only the court's reliance on his parole and probation revocations as grounds for departure under section 4A1.3.¹ 

Appellant argues that the court was barred from considering his multiple revocations since parole revocations are accounted for by the guidelines under section 4A1.2(k). The application note to that section explains its operation as follows:

Section 4A1.2(k) covers revocations of probation and other conditional sentences where the original term of imprisonment imposed, if any, did not exceed one year and one month. Rather than count the original sentence and the resentence after revocation as separate sentences, the sentence given upon revocation should be added to the original sentence of imprisonment, if any, and the total should be counted as if it were one sentence. By this approach, no more than three points will be assessed for a single conviction, even if probation or conditional release was subsequently revoked.

U.S.S.G. Sec. 4A1.2(k), comment. (n. 11) (emphasis added).

Section 4A1.2(k) unquestionably limits the degree to which probation revocations may be used to calculate the criminal history score for a single conviction. Section 4A1.3, however, provides that a sentencing court may depart from the guidelines range if the defendant's overall criminal history category "significantly under-represents ... the likelihood that the defendant will commit further crimes." U.S.S.G. Sec. 4A1.3, p.s. Among the factors the court may consider in making that determination is the defendant's failure to comply with administrative orders. U.S.S.G. Sec. 4A1.3(c). We have previously held that probation revocations evidence a failure to comply with administrative orders and warrant a departure under section 4A1.3. United States v. Gayou, 901 F.2d 746, 748 (9th Cir. 1990). We hold that the district court was justified in relying on appellant's recurrent revocations in finding that his criminal history score significantly under-represented his propensity to commit additional crimes.

III

When a district court departs from the guidelines because a defendant's criminal history is under-represented, it must provide explicit reasons for the degree of departure. United States v. Perez-Magana, 929 F.2d 518, ----, No. 90-50107, slip op. at 4197, 4206 (9th Cir. April 1, 1991) (citing cases). Where applicable, it should "use, as a reference, the guideline range for a defendant with a higher or lower criminal history category...." U.S.S.G. Sec. 4A1.3, p.s.; see also Gayou, 901 F.2d at 749.

Appellant's prior criminal conduct placed him in Criminal History Category V, which, in combination with a base offense level of 11, produced a guidelines range of 24-30 months. In departing from that range, the court imposed a sentence of 60 months, the statutory maximum. Appellant argues that the degree of departure was unreasonable. Specifically, he contends that the court should have looked to the next highest Criminal History Category, Category VI, which would have produced a sentencing range of 27-33 months. We disagree.

The court properly identified a number of factors that warranted departure under section 4A1.3. In addition to appellant's recurrent parole revocations, the court noted that at the time of his sentencing, appellant was awaiting trial on pending state charges for possession of rock cocaine for sale. See U.S.S.G. Sec. 4A1.3(d) (pending sentence is factor justifying departure). The court also considered the frequency with which appellant has engaged in criminal acts, in that all but one of the offenses he has committed since the age of eighteen was committed within two years of a previous offense. Appellant's criminal history score reflected only the most recent offense, see U.S.S.G. Sec. 4A1.1(e), but failed to account for his propensity for future criminal conduct. This, too, was an appropriate basis for departure. See United States v. Roberson, 872 F.2d 597, 606 & n. 8 (5th Cir.) (" [P]ropensity to commit future crimes, based on such factors as being frequently incarcerated and failing to complete parole, [is] a legitimate reason for departure."), cert. denied, 110 S. Ct. 93.

We agree with the court that Category VI inadequately represented appellant's criminal history and that departure beyond that range was appropriate. We have refrained from developing "overly particularized rules for district courts to follow" in departing beyond Category VI. Perez-Magana, 929 F.2d at ----, slip op. at 4208. Rather, " ' [w]here valid grounds for departure are present, we will uphold the sentencing judge's resolution of the matter so long as the circumstances warranting the departure, and the departure's direction and extent, are in reasonable balance.' " Id. (quoting United States v. Ocasio, 914 F.2d 330, 337 (1st Cir. 1990)). Here, we cannot say that the court's imposition of the statutory maximum was unreasonable. While the sentence imposed is double that anticipated by the guidelines, we find it reasonable in proportion to appellant's amply demonstrated history of recidivism. See United States v. Ramirez Acosta, 895 F.2d 597, 602 (9th Cir. 1990) (sentence double guidelines range reasonable based on extensive criminal history, including parole violations, which suggests likelihood of continued criminal activity). We therefore AFFIRM.