Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1990)

MEMORANDUM^** 

William F. Lynch appeals his sentence under the Federal Sentencing Guidelines (the "guidelines"). Lynch contends that the district court (1) erred in departing upward from the guidelines, (2) violated his constitutional right against double jeopardy by allegedly sentencing him twice for the same act, and (3) violated his due process rights by admitting hearsay evidence at the sentencing hearing. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

FACTS

On May 8, 1989, Lynch pled guilty to possession of fifteen or more unauthorized access devices (credit cards) with intent to defraud in violation of 18 U.S.C. § 1029(a) (3). After this plea, Lynch was released on bond pending sentencing. The district court imposed several conditions on his release, the cumulative effect of which was to place Lynch under virtual house arrest.

On September 6, 1989, Lynch failed to appear for his sentencing hearing. On September 19, 1989, Lynch was apprehended in San Francisco by federal authorities. It soon became apparent that during the course of his flight from Hawaii Lynch utilized unauthorized access devices. Further, at the time of his arrest, Lynch had in his possession a fully completed and a partially completed fraudulent credit application. Lynch was returned to Hawaii for sentencing.

At Lynch's sentencing hearing, the district court determined that his base offense level was 12 and that a two-level increase for obstruction of justice as a result of his flight from the jurisdiction was warranted. Thus, Lynch's total offense level was 14. Lynch's criminal history category was III. The guideline sentencing range for this category is 21-27 months. The district court, however, determined that this criminal history category seriously under-represented Lynch's true criminal history and the likelihood of recidivism. Indeed, the district court determined that Lynch "more closely resembles a defendant whose criminal history category is beyond that which is represented by Category six." Reporter's Transcript of Proceedings, February 2, 1990, at 61-62 (sentencing hearing) [hereinafter Reporter's Transcript]. Thus, the district court chose to depart upward and imposed a 60-month sentence. This sentence was analogous to that of a hypothetical criminal history category of IX--three categories beyond category VI.

DISCUSSION

Under the Federal Sentencing Reform Act, a district court may depart from the guidelines "if there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission [ (the "commission") ] in formulating the Guidelines." 18 U.S.C. § 3553(b). Specifically, the guidelines anticipate that such a circumstance might arise when a defendant's criminal history category fails to capture his true criminal history and risk of recidivism. U.S.S.G. Sec. 4A1.3, p.s. Should a district court be faced with this situation, the commission offered the following guidance:

In considering a departure [for inadequate criminal history] ..., the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable. For example, if the court concludes that the defendant's criminal history category of III significantly under-represents the seriousness of the defendant's criminal history, and that the seriousness of the defendant's criminal history most closely resembles that of most defendants with a Category IV criminal history, the court should look to the guideline range specified for a defendant with a Category IV criminal history to guide its departure. The Commission contemplates that there may, on occasion, be a case of an egregious, serious criminal record in which even the guideline range for a Category VI criminal history is not adequate to reflect the seriousness of the defendant's criminal history. In such a case, a decision above the guideline range for a defendant with a Category VI criminal history may be warranted.

Id. (emphasis added).

Thus, it is plain that the commission anticipated situations in which a departure beyond category VI would be justified. Such a departure is not a per se violation of a defendant's due process rights. Further, we believe there was "a sufficient weight of evidence [here] to convince a reasonable person of the probable existence of the enhancing factor [s]" (United States v. Restrepo, 903 F.2d 648, 654-55 (9th Cir.), reh'g en banc granted, 912 F.2d 1568 (1990))¹  and that the district court's use of those factors and the extent of its departure from the guidelines were reasonable. The six past convictions for similar offenses not counted toward Lynch's criminal history category, Lynch's resumption of a pattern of credit card fraud, his violation of the district court's conditions for pretrial release, and his attempts to misportray his health were all properly established and served as an appropriate basis for a recidivism departure.

Lynch asserts that the sentence he received violated his constitutional protection against double jeopardy because it punished him twice for his flight from the jurisdiction--once through the two-point increase of his offense level for obstruction of justice and again by the upward departure from his criminal history category. This argument lacks merit. It is abundantly clear that the basis for the increase for obstruction of justice was different from the upward departure from the criminal history category. The district court increased Lynch's offense level by two for obstruction of justice based on his flight. The district court then stated that "because the Court has assigned two points for obstruction of justice as a result of defendant's flight from the jurisdiction, the Court notes that it is not otherwise considering that aspect of defendant's action in determining the proper sentence it should impose." Reporter's Transcript at 63. The district court subsequently cited Lynch's continued use of improperly obtained credit cards and, indeed, his attempts to apply for additional such cards while a fugitive as supporting its decision to depart upward from the recommended sentencing range. The use of the additional, similar criminal conduct of Lynch as a basis for departing upward did not violate double jeopardy. The flight itself is wholly distinct from Lynch's continued fraudulent acts and it was appropriate for the district court to consider both in sentencing Lynch.

Lynch contends that the district court's reliance on hearsay statements during his sentencing violated his due process rights. We disagree. "Federal law is clear that a judge may consider hearsay information in sentencing a defendant.... Only when the hearsay is so inadequately supported that 'the factual basis for believing [it is] almost nil' can it be argued that the evidence should not have been considered." United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988) (quoting United States v. Wondurak, 578 F.2d 808, 809 (9th Cir. 1978)). Neither the hearsay testimony of the probation officer regarding the thirty-year-old outstanding warrant nor the hearsay testimony of the federal agent regarding the details of Lynch's flight from justice and the evidence seized from him upon his arrest required exclusion. Therefore, the district court properly considered the testimony.

AFFIRMED.