Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^** 

Carole A. Rasco appeals her sentence, imposed under the United States Sentencing Guidelines (Guidelines), following her conviction on a guilty plea for tax evasion, in violation of 26 U.S.C. § 7201, and frauds and swindles, in violation of 18 U.S.C. § 1341. Rasco claims the district court erred by departing upward eleven months from the upper limit of the range established by the Guidelines, and by failing adequately to notify her of the possibility of departure. We have jurisdiction under 28 U.S.C. § 1291 and we vacate the sentence and remand for resentencing.

A district court may depart from the Guidelines where it discerns circumstances not adequately considered by the Sentencing Commission. United States v. Montenegro-Rojo, 908 F.2d 425, 427 (9th Cir. 1990); United States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1989). This determination "must be based on the guidelines themselves, or policy statements in the Commission's commentary." Borrayo, 898 F.2d at 94. We review de novo the district court's decision that the Commission did not adequately consider the factors it deemed to warrant departure. Montenegro-Rojo, 908 F.2d at 427. When a sentencing court relies on improper factors to depart, the sentence must be vacated. United States v. Cota-Guerrero, 907 F.2d 87, 91 (9th Cir. 1990).

U.S.S.G. Sec. 2F1.1(b) (1) establishes nineteen possible adjustments to a defendant's base offense level depending on the amount of money he procured through fraud or deceit. U.S.S.G. Sec. 3A1.1 expressly authorizes a two-level adjustment in cases where the defendant preyed on victims who, "due to age [or] physical or mental condition," were particularly susceptible to the criminal conduct. Notice that a sentencing court may depart from the Guidelines is adequate where the presentence report mentions factors that may warrant departure. United States v. Acosta, 895 F.2d 597, 601 (9th Cir. 1990).

Here, Rasco was convicted of selling fraudulent insurance policies to elderly buyers, some of whom were her close friends. It was undisputed that, through these transactions, many victims lost their entire life savings. The presentence report found the vulnerable victim adjustment unwarranted, but recommended an upward departure based on "the extensive nature of th [e] offense," the victims' age, and the magnitude of the losses they suffered. Accordingly, the district court declined to apply the vulnerable victim adjustment, and expressly determined that Rasco's base offense level was 19 and the appropriate sentencing range 30 to 37 months. The court then departed upward 11 months due to "the extensive fraudulent activity of the defendant over the number of years, and the types of people who [sic] she defrauded, people who were her friends, her supporters, and in many instances, loved ones, and people really totally dependent on her" (Sentencing Transcript at 32).

In our view, the presentence report gave Rasco adequate notice of the factors the court might consider to warrant departure. See Acosta, 895 F.2d at 601. Nonetheless, we hold that the adjustments authorized by U.S.S.G. Secs. 2F1.1(b) (1) and 3A1.1 encompass the circumstances articulated by the district court. Thus, we conclude the district court's reasons for departing were adequately considered by the Commission, and not appropriate grounds for departure.¹  See Borrayo, 898 F.2d at 94.

VACATED AND REMANDED FOR RESENTENCING.