Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1226 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Thomas J. WHITMARSH, Defendant-Appellant.

No. 89-50100.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 1989.Decided April 4, 1990.

Before GOODWIN, Chief Judge, SCHROEDER and O'SCANNLAIN, Circuit Judges.


MEMORANDUM* 

Thomas Whitmarsh appeals from the sentence imposed upon him after he was convicted of two counts of bank robbery under 18 U.S.C. § 2113(a). He contends that the district court impermissibly departed from the Sentencing Guidelines and erroneously sentenced him to a term of probation for the second count.

* On August 29, 1988, Whitmarsh was arrested for robbing the California First Bank in San Diego, California. After his arrest, Whitmarsh was interviewed by the FBI. In addition to admitting the robbery of the California First Bank, he admitted that he had committed four other bank robberies and the robbery of a drugstore.

On September 7, 1988, a federal grand jury for the Southern District of California returned a criminal indictment charging Whitmarsh with one count of bank robbery, in violation of 18 U.S.C. § 2113(a). Pursuant to a plea agreement filed with the court on October 17, 1988, Whitmarsh pleaded guilty to the indictment and to an information charging him with a second count of bank robbery. The plea agreement provided that, in return for Whitmarsh's guilty plea to both the indictment and the information, the United States would not prosecute him for two other bank robberies which were named in the plea bargain. The plea bargain did not mention one of the bank robberies and the robbery of the drugstore.

During the presentence interview, Whitmarsh accepted full responsibility for the robberies to which he pled guilty, as well as for the robbery of the drugstore, but he denied any other robberies. A probation officer then computed the total offense level to be nineteen, added four criminal offense points, and using the Sentencing table, found the appropriate Guideline range to be thirty-seven to forty-six months. Nevertheless, based upon a review of evidence and other presentence reports, the probation officer recommended a sentence of seventy-two months.

Whitmarsh filed objections to the Guideline calculations in the presentence report. At sentencing, Whitmarsh agreed with the probation officer's calculations of his total offense level, but argued that the parole officer's recommended departure was unwarranted and that in fact a downward departure was warranted.

On February 6, 1989, the district court adopted the findings of the parole officer and sentenced Whitmarsh to a term of fifty-four months imprisonment to be followed by a three-year period of supervised release and a $50 special assessment on the first count. Whitmarsh was sentenced on the second count to a five-year period of probation and ordered to pay an additional $50 assessment. Whitmarsh timely filed his notice of appeal.

II

We review departures from the Sentencing Guidelines according to a five-step process:

(1) whether the district court judge adequately identified the "aggravating or mitigating circumstance";

(2) whether the identified circumstance actually existed;

(3) whether the circumstance was adequately taken into consideration by the Sentencing Commission;

(4) if not, whether the circumstance should result in departure; and

(5) 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).

III

Whitmarsh alleges that the district court erred by not adequately specifying the aggravating circumstance requiring departure from the Guidelines. See id. (step one in review of departure from Guidelines requires determination of whether district court adequately identified aggravating or mitigating circumstance).

A sentencing court may impose a sentence that departs from the Guidelines, but the Guidelines "are a comprehensive set of rules that are designed to limit the sentencing court's discretion," and contemplate departure "only in the unusual case." United States v. Lucatero, 889 F.2d 916, 917 (9th Cir. 1989) (citing United States v. Nuno-Para, 877 F.2d 1409, 1412 (9th Cir. 1989)). A sentencing judge may depart from the Guidelines in three situations: (1) where the offense committed falls between two different forms of enhancement; (2) where the Guidelines provide specific guidance for departure by analogy or by other suggestions; and (3) where grounds have not been adequately considered by the Commission. Guidelines, Ch. 1, Part A, Sec. 4(b).

However, the sentencing court must offer more than a mere conclusory statement of reasons for its departure. United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989). At the time of sentencing, a district judge must state in open court the specific reasons for imposing a sentence different from that described in the Guidelines to ensure meaningful review by this court. 18 U.S.C.A. Sec. 3553(c) (West Supp.1989); Mistretta v. United States, 109 S. Ct. 647, 652 (1989); United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir. 1989) (per curiam); United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989) (per curiam); United States v. Nuno-Huizar, 863 F.2d 36, 37 (9th Cir. 1988). A defendant's criminal history may be a ground for departure, but only in the limited circumstances where the defendant's record is "significantly more serious" than that of other defendants in the same category. Hernandez-Vasquez, 884 F.2d at 1316.

In sentencing Whitmarsh, the district court stated:

Mr. Whitmarsh, I don't think I could give you just a two year term for four bank robberies. I think I am entitled to consider those. And your counsel has asked [me] to adhere to the Guidelines, the 37 to 46 months. I think that's too low. I think that if you committed four robberies, you have to pay a price for them, and that's why prison is in order.

Actually, something like this before the Guidelines--that was 15 to 20 years, with no questions asked.

So I think I am being pretty lenient. I'm going to give you 54 months. I think I'm being pretty lenient here.

In United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989) we held that a departure by the district court could not be sustained by the following explanation:

The court concludes that the defendant's criminal history category significantly under-represents the seriousness of the defendant's criminal history, and the seriousness of the defendant's criminal history category more closely resembles that of defendants of a category IV criminal history.

Id. at 1232. We held that this statement by the district court was inadequate because it did not specify the events in the defendant's criminal history that the court found were inadequately represented by the criminal history category indicated by the Guidelines. Id. at 1232-1233; see also Michel, 876 F.2d at 786.

In the case before us, the district court apparently based its departure on the fact that Whitmarsh had committed "four robberies." The district court did not, however, discuss which criminal history category adequately reflected Whitmarsh's past criminal conduct. Nor did it specify which events in the defendant's criminal history were inadequately represented by the criminal history category of the Guidelines. Moreover, the district court's statement that the sentence under the Guidelines was "too low" because Whitmarsh had committed "four robberies" constitutes a general recitation that the defendant's criminal history underrepresents the defendant's criminal record. Such a recitation is not sufficiently specific to allow for meaningful appellate review. See id.

We hold that the district court did not adequately state or justify its reasons for departure. We therefore vacate the sentence and remand for resentencing.1 

IV

We must also conclude that the district court erred by imposing a split sentence upon the defendant. The district court imposed a 54-month sentence on Whitmarsh, to be followed by a three-year period of supervised release for the first count of bank robbery, and a period of straight probation for the second count of bank robbery. The use of split sentences was ended by enactment of 18 U.S.C.A. Sec. 3561(a) (3) (West Supp.1989).2  Furthermore, because the Guidelines increase the available sentencing range on the basis of multiple convictions, sentences on multiple counts "shall run concurrently." Guidelines Sec. 5G1.2(c). The imposition of straight probation as to the second count was error. We therefore vacate the sentence of probation as to the second count of bank robbery. Since the district court undoubtedly sentenced the defendant with both counts in mind, however, we remand to the district court for resentencing on the second count. See United States v. Hagler, 709 F.2d 578, 579 (9th Cir.), cert. denied, 464 U.S. 917 (1983).3 

VACATED and REMANDED.

 *

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

 1

Because we hold that the district court departed without adequate explanation, we need not reach the further steps of review set out in Lira-Barraza, No. 88-5161, slip op. at 2411. Moreover, we do not reach Whitmarsh's further claims that the district court considered improper factors in determining his sentence or that the sentence imposed on him was unreasonable

 2

"A defendant who has been found guilty of an offense may be sentenced to probation unless ... (3) the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense." 18 U.S.C.A. Sec. 3561(a) (West Supp.1989)

 3

Whitmarsh contends that the district court erred by staying the imposition of the $50 assessments against him pending the final outcome of United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). We disagree and affirm the order staying the imposition of the special assessments