Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1990)

MEMORANDUM

Hebert appeals from his sentence imposed following a guilty plea for armed bank robbery in violation of 18 U.S.C. §§ 2113(c) and (d). Under the Sentencing Guidelines, his adjusted offense level was 25 and his total criminal history score was 4. Hebert is in criminal history category III. The sentencing guideline range is from 70 to 87 months' imprisonment. Hebert was sentenced to 144 months. Hebert argues that the district court erred in sentencing him outside of the guideline range.

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We vacate and remand for resentencing.

Hebert argues that the district court could not depart based upon his criminal history not reflecting the seriousness of his past criminal conduct, the three robberies having been committed within a 30-day period, the effect on the victims, and his use of stolen vehicles in two of the offenses. He argues that 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" (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, 897 F.2d 981, 983-86 (9th Cir. 1990).

The district judge explained his decision to depart at the sentencing hearing:

I think the twelve years would be an appropriate sentence, and the court will state its reasons for departure upward.

The court will state, reason no. 1, the criminal history category does not accurately reflect the seriousness of his past criminal conduct, and also because of that conduct, the likelihood he may well commit other crimes in the near future.

In addition thereto, that his prior conduct is very serious. And to the degree of the number of robberies committed within the 30-day period, the court takes that into account also.

The court does not feel that the number of robberies within the 30-day span was accurately taken into consideration by the Sentencing Commission with reference to this type of sentencing.

Also, the court would find that the circumstances as to the effect on the victims in the crimes in this particular case in that 30-day period should be taken into consideration at the time of sentencing.

And there is also the factor that the defendant used stolen automobiles in at least two of the offenses.

For those reasons, the court feels departure would be proper, and [the] sentence will be 144 months.

The district court never explained why Hebert's criminal history score did not adequately represent the seriousness of defendant's past criminal conduct.

A general statement that the offense level underrepresents the seriousness of a defendant's past criminal conduct does not satisfy the Sentencing Guidelines requirement that a sentencing court must state "the specific reason for the imposition of a sentence different from that described [in the guidelines]." 18 U.S.C. § 3553(c); United States v. Mendoza, No. 89-10215, slip op. 2813, 2822 (9th Cir. Mar. 16, 1990); United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989).

Hebert challenges the district court's conclusion that his past criminal history was not adequately represented in his prior history level under the Guidelines. Hebert argues that the district court did not make sufficiently specific findings to support this conclusion. "The district court must set forth the specific aspects of the defendant's criminal history or of the charged offense that the district court believes have not been adequately represented in the recommended sentence." Wells, 878 F.2d at 1233. The district court failed to specify why Hebert's criminal history score underrepresented his past criminal conduct as required by Wells.

If a sentencing court relies on both proper and improper factors in departing upward under section 4A1.3 of the Guidelines, the sentence must be vacated and the case remanded. United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir. 1989). Therefore, it is unnecessary for us to consider other alleged errors. We vacate Hebert's sentence and remand to the district court for a more specific statement of the reasons justifying an upward departure, and any other changes the district court chooses to make.

SENTENCE VACATED; REMANDED FOR RESENTENCING.