Unpublished Disposition, 909 F.2d 1490 (9th Cir. 1990)

MEMORANDUM^* 

Jose Antonio Rubalcaba-Diaz, a citizen of Mexico, pled guilty to illegal entry into the United States in violation of 8 U.S.C. § 1326. The sentencing judge made an upward departure from the Sentencing Guidelines based upon the inadequacy of the appropriate Guidelines' criminal history category to reflect the seriousness of Rubalcaba-Diaz's criminal history. Rubalcaba-Diaz now appeals.

The Presentence Report indicated that under the Sentencing Guidelines, Rubalcaba-Diaz's base offense level was eight, with a two-level increase for obstructing justice (furnishing false information) and a two-level reduction for acceptance of responsibility, so that the total offense level was eight. The Report, which included Rubalcaba-Diaz's criminal history, placed him in category III. Based on the offense level of eight and a criminal history of III, the Guidelines set an imprisonment range of 6-12 months. The sentencing judge, however, made an upward departure from the Guidelines and sentenced Rubalcaba-Diaz to 24 months of imprisonment.

The district court explained its decision to depart from the Guidelines as follows:

Reliable information presented in the criminal history section of the presentence report indicates a criminal history category [that] does not adequately reflect the seriousness of the defendant's past criminal conduct, or the likelihood that the defendant--and the likelihood should be that the defendant will commit additional crimes. The Court is going to impose a commitment to the Attorney General of the United States for a period of 24 months, and the Court in imposing the 24-month custody is taking note of the defendant's extensive criminal history, four prior deportations by the U.S. Immigration and Naturalization Service that are prior similar criminal conduct to the instant crime. Th [at] according to 4 A-1.3 of the sentencing guidelines, the Court, after a review of all relevant information, I do conclude that the defendant's criminal history was significantly more serious than most defendants in the same criminal history category, and, therefore, believe an upward departure within the guidelines is warranted.

Excerpt of Record ("E.R.") at 28-29.

This statement is the only explanation that the district court gives for its upward departure from the Guidelines. In reviewing the district court's decision to depart from the Guidelines, we only "consider the reasons for departure actually articulated by the sentencing court." United States v. Montenegro-Rojo, 900 F.2d 1376, 1378 (9th Cir. 1990). The district court did not explain how it arrived at a sentence that would place Rubalcaba-Diaz in a criminal history category of VI, or why it did not consider any intermediate categories. See United States v. Gayou, 901 F.2d 746, 749 (9th Cir. 1990) ("court failed to indicate how it arrived at the sentence that it imposed"); U.S.S.G. Sec. 4A1.3 (court should analogize to the category that most closely resembles the defendant's criminal history).

The conclusory statement by the district court does not provide an adequate explanation for its upward departure. See United States v. Wells, 878 F.2d 1232 (9th Cir. 1989) (per curiam); United States v. Michel, 876 F.2d 784 (9th Cir. 1989). It is not enough for the district court merely to recite that in its view defendant's criminal history category does not adequately reflect his record or the seriousness of the charged offense. As the Wells court stated:

The district court did not specify the events in Wells' criminal history that the court found inadequately represented by a category IV rating. Nor did the court indicate why it chose to place Wells in Category IV (the highest criminal history category) as opposed to Category V, an intermediate category. The court simply stated that Wells' criminal history rating underrepresented his true criminal history.

In our opinion, this conclusory statement by the district court is inadequate to permit meaningful appellate review of the district court's departure from the Guidelines.

Id. at 1232-33.

For the reasons stated above, we VACATE the sentence imposed and REMAND to the district court for the court to set forth the specific reasons for its departure from the Sentencing Guidelines.