Unpublished Disposition, 898 F.2d 157 (9th Cir. 1990)

MEMORANDUM

Chalifoux appeals from his sentence imposed following a guilty plea for aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153 and 2241, and kidnapping, in violation of 18 U.S.C. §§ 1153 and 1201. Under the Sentencing Guidelines, his adjusted offense level was 39 and his total criminal history score was 0. Chalifoux is in criminal history category 1. The sentencing guideline range is from 262 to 327 months' imprisonment. Chalifoux was sentenced to 360 months. Chalifoux argues that the district court erred in sentencing outside of the guideline range.

The district court had jurisdiction under 18 U.S.C. §§ 1153, 1201, and 2241. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm.

Chalifoux argues that the district court could not depart based on the victim's death and on Chalifoux's foreign juvenile criminal history because these factors were considered adequately by the Sentencing Commission when it formulated the Guidelines. A court can impose a sentence outside the Guidelines if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines...." United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989), quoting 18 U.S.C. § 3553(b). Such departures are reviewed according to a five-step process:

1. we first inspect whether the district court stated its reasons for departing from the Guidelines by adequately identifying the "aggravating or mitigating circumstance" (hereinafter circumstance);

2. if it did, we then review for clear error whether the identified circumstance actually existed;

3. if it did, we then review de novo whether the circumstance was of a kind adequately taken into consideration by the Sentencing Commission;

4. if, and only if, it was not, we review for an abuse of discretion the district court's decision whether that unconsidered circumstance should result in departure; and,

5. if the circumstance warrants departure, we review for an abuse of discretion whether the extent or degree of departure was unreasonable. United States v. Lira-Barraza, No. 88-5161, slip op. 2407, 2411 (9th Cir. Feb. 28, 1990).

The district court indicated two factors that warranted upward departure: the death of the victim and Chalifoux's extensive foreign juvenile criminal history. These factors were identified by the district court at the sentencing hearing. The existence of these factors has not been disputed.

We must next determine whether either circumstance was adequately considered by the Commission. Id. Neither factor was taken into consideration by the Sentencing Commission for the offense under which Chalifoux was sentenced. United States Sentencing Commission, Guidelines Manual, Sec. 2A3.1 (Nov. 1989) (U.S.S.G.). The factors that were considered for adjustments to Chalifoux's sentence also do not consider the circumstances. U.S.S.G. Secs. 2A3.1(b) (1); (b) (2) (B); (b) (5); and 3A1.1.

Because the Guidelines did not consider the circumstances, we must next determine whether the district court abused its discretion by departing from the guideline range based on these unconsidered circumstances. We conclude it did not. The Guidelines themselves recognize death of the victim and foreign juvenile criminal history as aggravating circumstances that warrant departure. See U.S.S.G. Sec. 5K2.1 ("If death resulted, the court may increase the sentence above the authorized guideline range."); see also U.S.S.G. Sec. 4A1.2(h) (providing that sentences resulting from foreign convictions are not counted, but may be considered under section 4A1.3). Section 4A1.3 allows the court to depart from the guideline range when reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past conduct.

Because the district court did not abuse its discretion in concluding that these aggravating circumstances warranted departure, we must decide whether the departure was reasonable in direction and degree. Lira-Barraza, slip op. at 2416. We cannot say that an additional 33 months was unreasonable, especially given the substantial increase warranted for the death of the victim under section 5K2.1.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.