Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1990)

MEMORANDUM^* 

Herbert M. Eychaner appeals the sentence imposed following his guilty plea to two counts of abusive sexual contact in violation of 18 U.S.C. § 2244(a) (1). The district court had jurisdiction under 18 U.S.C. §§ 1152 and 2244, and we have jurisdiction under 18 U.S.C. § 3742. We affirm.

The appellant argues that the sentencing judge's decision to increase the base offense level by four levels pursuant to a specific offense characteristic lacks a factual basis in the record. We review this factual finding for clear error. United States v. Gross, 897 F.2d 414, 416 (9th Cir. 1990). Because the judge's finding that a four-year-old girl is "incapable of appraising the nature of the conduct or physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act," U.S.S.G. Sec. 2A3.4(b) (2) and comment (n. 2), was not clearly erroneous, the four-level increase was proper.

Eychaner also argues that his sentence was based on an erroneous criminal history category. The sentencing judge found that Eychaner was sentenced to eighteen months probation for the North Dakota menacing conviction. RT 6-20-90 at 4-5. That finding was not clearly erroneous, and the one criminal history point counted for that conviction was therefore proper. Whether or not one point was properly added for the Montana theft convictions, the appellant still falls in criminal history category III, and so cannot demonstrate prejudice. United States v. Turner, 881 F.2d 684, 888-89 (9th Cir.), cert. denied, 110 S. Ct. 199 (1989).

The sentence is AFFIRMED.