Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^** 

Defendant Jose James Antone appeals the district court's decision to depart upward from the sentencing guidelines. We agree with defendant that the district court relied on impermissible grounds when it choose to depart and that it failed to articulate any reason for the degree and extent of departure. Accordingly, we vacate the sentence and remand for resentencing.

DISCUSSION

The district court indicated that departure from the sentencing guidelines was warranted in this case because the crime involved the use of a firearm, death resulted, the defendant had a history of assaultive conduct, and because " [w]e tend to minimize crimes on the reservation." ER 7. The first justification is permissible under the guidelines. See U.S.S.G. Sec. 5K2.6 (1990) (allowing sentencing court to depart when the offense involves the use of a weapon). Whether a court may depart upward because death resulted is dependent upon, among other things, whether the underlying offense was one for which base offense levels do not reflect an allowance for the risk of personal injury. U.S.S.G. Sec. 5K2.1 (1990). It goes without saying that the base offense level for manslaughter necessarily takes into account the fact that the victim died. Consequently, upward departure pursuant to section 5K2.1 is improper in this case.

We interpret the third justification to be a possible permissible ground under U.S.S.G. Sec. 4A1.3 (1990), which allows for departure when a court determines that a defendant's criminal history does not adequately reflect "the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes...." U.S.S.G. Sec. 4A1.3. We are unable to discern any lawful basis for departure under the fourth justification offered by the court concerning its perception of crime on the reservation.

Because in this case the district court offered both valid and invalid grounds for its departure, we must vacate the sentence and remand for resentencing. See United States v. Singleton, 917 F.2d 411, 412 (9th Cir. 1990). Moreover, even if departure had been based solely on valid grounds, remand is necessary because the district court failed to explain adequately the degree of its departure. See United States v. Perez-Magana, 929 F.2d 518, 523 (9th Cir. 1991). If on remand the court again chooses to depart, it must explain its extent of departure. If departure is made on the basis that defendant's true criminal history is not reflected by his criminal history category, the court should analogize to the appropriate criminal history category, stating the reasons for the analogy. See United States v. Ward, 914 F.2d 1340, 1348 (9th Cir. 1990. If departure is based on any of the grounds listed in U.S.S.G. Sec. 5K2, the court must "express its reasons for the extent of the departure." United States v. Todd, 909 F.2d 395, 399 (9th Cir. 1990).

Finally, we reject the government's argument that defendant was required as a condition of preserving his right of review to object prior to sentencing to the presentence report's observation that departure was permissible under U.S.S.G. Sec. 5K2. The court ultimately added additional grounds for departure not mentioned in the presentence report and not otherwise made known to defendant prior to the sentencing hearing. See United States v. Brady, 928 F.2d 844, 847 (9th Cir. 1991) (district court is required to notify defendant before sentencing of its intent to depart on grounds not included in the presentence report). There is no basis for the government's contention that defendant waived his right to appeal the basis for departure.

VACATED and REMANDED for resentencing.