Unpublished Disposition, 912 F.2d 470 (9th Cir. 1990)

MEMORANDUM

Laughing was indicted for one count of sexual abuse, in violation of 18 U.S.C. § 2242(1), and three counts of abusive sexual contact, in violation of 18 U.S.C. § 2244(a). The indictment alleged that on June 4, 1988, Laughing attempted to engage a juvenile in a sexual act, and that on June 11, September 10, and October 22, 1988, Laughing caused sexual contact with the juvenile. Pursuant to a plea bargain, Laughing entered a plea of guilty to one count of abusive sexual conduct in violation of 18 U.S.C. § 2244(a) (1).

The sentencing guideline range applicable to Laughing's case pursuant to the Sentencing Reform Act of 1984 was zero to six months of incarceration. The district court made an upward departure and sentenced Laughing to twelve months. As reasons for the upward departure, the district court found that the conduct was not consensual, that the victim was in the custody of Laughing and under the age of sixteen, and that the criminal offense was the culmination of a pattern of conduct.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

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 specifically identified the unconvicted molestation counts as a reason for departure. In addition, there is no contention that these instances of molestation actually existed or that the extent of the departure was unreasonable. Thus, only steps three and four are contended and at issue in this case.

In this case, the task of determining whether the Sentencing Commission adequately considered the possibility of unconvicted counts is not difficult. Not only does the guideline for Laughing's offense of conviction not mention unconvicted counts of molestation, but section 1B1.4 provides that the court may consider "any information concerning the background, character and conduct of the defendant." United States Sentencing Commission, Guidelines Manual, Sec. 1B1.4 (Nov. 1989). The Guidelines provide:

A court is not precluded from considering information that the Guidelines do not take into account. For example, if the defendant committed two robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery that was not taken into account by the Guidelines would provide a reason for sentencing at the top of the Guidelines range. In addition, information that does not enter into the determination of the applicable Guideline sentencing range may be considered in determining whether and to what extent to depart from the Guidelines.

Id. Sec. 1B1.4 comment. (backg'd). This latter point evidences that the Sentencing Commission was well aware that Laughing's conduct (i.e., unconvicted but admitted counts of molestation) was a circumstance that was not always reflected in the different offense levels under the Guidelines. Therefore, we conclude that the district court correctly determined that the unconvicted counts of molestation were a factor not adequately taken into consideration by the Sentencing Commission.

Proceeding to step four, we next address whether the unconvicted counts of molestation warrant departure. As stated above, section 1B1.4 recognizes that such unconvicted conduct warrants departure. Therefore, we conclude that the district court did not abuse its discretion by concluding that the unconvicted counts of molestation were a circumstance that should result in an upward departure.

Laughing cites United States v. Restrepo, 883 F.2d 781 (9th Cir. 1989), for the proposition that only prior criminal conduct resulting in a conviction can be used in departing from the Guidelines range. Yet, that opinion was withdrawn and a rehearing was granted on March 2, 1990, United States v. Restrepo, 896 F.2d 1228 (9th Cir. 1990). A new opinion in Restrepo was issued on May 8, 1990. United States v. Restrepo, 903 F.2d 648 (9th Cir. 1990). The new opinion does not support Laughing's contention. See id. at 651-56 (holding that the Guidelines allow the district court to consider conduct of which the defendant was not convicted in determining his base offense level). Therefore, Laughing's reliance on Restrepo is misplaced.

AFFIRMED.