Unpublished Disposition, 940 F.2d 1537 (9th Cir. 1991)

MEMORANDUM^* 

Randall Bruce Turner appeals the sentence imposed after pleading guilty to six counts of unarmed bank robbery. He argues that the district court erred in counting a period of civil commitment as a "sentence of imprisonment" for purposes of calculating his criminal history category.

We find it unnecessary to reach the merits of this argument. The appellant's total offense level is 22. If the three points are included in his criminal history, he falls in category VI, and the guideline range is 84-105 months. If the points are not counted, then his criminal history category is V, and the guideline range is 77-96 months. The 90-month sentence imposed by the sentencing judge thus falls within both potentially applicable ranges, and indeed, the sentence falls right in the middle of the overlap between the two ranges (i.e. the median of the overlap period, 84-96 months, is 90 months). Moreover, the record indicates that the district court considered the 90-month sentence to be appropriate regardless of which range actually applies. Under these circumstances, the appellant cannot demonstrate prejudice, and we will not reach the merits of his argument. United States v. Turner, 881 F.2d 684, 688-89 (9th Cir.), cert. denied, 110 S. Ct. 199 (1989); United States v. Munster-Ramirez, 888 F.2d 1267, 1273 (9th Cir. 1989).

AFFIRMED.