Unpublished Disposition, 923 F.2d 863 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 923 F.2d 863 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Samuel Earl BROOKS, Defendant-Appellant.

No. 89-50298.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 7, 1990.Decided Jan. 23, 1991.

Before JAMES R. BROWNING, PREGERSON and LEAVY, Circuit Judges.


MEMORANDUM* 

Samuel Brooks was indicted on fourteen counts of bank fraud in violation of 18 U.S.C. § 1344, and two counts of credit card fraud in violation of 18 U.S.C. § 1029. Brooks pleaded guilty to three counts of bank fraud and both counts of credit card fraud. Under the circumstances, the Sentencing Guidelines call for a sentence of 27 to 33 months. Brooks was sentenced to 41 months. He appeals his sentence, alleging several errors. We reject each contention and affirm.

* Brooks first contends the district court erred in departing upward from the Sentencing Guidelines. In reviewing an upward departure from the Guidelines this court must consider: (1) whether the district judge adequately identified the aggravating circumstances; (2) whether the identified circumstances actually existed; (3) whether the circumstances were adequately taken into consideration by the Sentencing Commission; (4) if not, whether the district court erred in electing to depart based on the identified circumstances; and (5) whether the extent or degree of departure was unreasonable. United States v. Pearson, 911 F.2d 186, 188-89 (9th Cir. 1990); United States v. Montenegro-Rojo, 908 F.2d 425, 427 (9th Cir. 1990). We find no error.

1. The sentencing judge stated as reasons for departing upward the defendant's substantial criminal history, the large number of credit cards used by the defendant in committing his crimes, and the recency and similarity of two of Brooks' prior convictions. R.T. II at 13-14. These reasons are sufficiently specific to provide an adequate basis for meaningful review. See United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989) (requiring specificity sufficient to permit meaningful review).

2. Brooks challenges the existence of only one of the circumstances identified by the district court, claiming the sentencing judge erroneously calculated Brooks' criminal history points. Brooks asserts that under Sections 4A1.1(a) & (b) of the Guidelines, only two points, not three points, should have been added to his criminal history for his prior convictions for grand theft auto, wire fraud, and possession of a controlled substance, because each resulted in a sentence of imprisonment of less than one year and a month. Since Brooks raises this claim for the first time in his Reply Brief we may regard it as waived. Eberle v. City of Anaheim, 901 F.2d 814, 817-18 (9th Cir. 1990). In any event it is without merit.

Brooks' grand theft auto conviction resulted in one year in jail plus three years' probation; probation was revoked almost immediately and Brooks served another six months in jail. When an original term of imprisonment is supplemented with an additional term imposed upon revocation of probation, the two terms should be added together. Guidelines Sec. 4A1.2(k). Similarly, Brooks was sentenced to six months in jail and four years probation for wire fraud. When he violated the conditions of probation by failing to report, probation was revoked and Brooks was remanded to custody. Presentence Report at 13. Finally, Brooks' conviction for possession of a controlled substance led to a sentence of 80 days in jail and three years' probation; when the probation was revoked, he was sentenced to 16 months in state prison.

3. The Guidelines did not adequately take into account the circumstances relied upon by the district court. The Guidelines contemplate that an "egregious, serious criminal record" may warrant an upward departure. Guidelines Sec. 4A1.3 (Policy Statement) at 4.10. Brooks' record of 24 criminal history points meets this description. See United States v. Bernhardt, 905 F.2d 343, 345 (10th Cir. 1990) (defendant's 25 criminal history points were representative of an egregious, serious criminal record, and were sufficient reason to depart upward from the Guidelines). The Guidelines provide that enhancement of a sentence may be appropriate where the offense involves more than 15 credit cards. Guidelines, Commentary to Sec. 2F1.1, p 11. The parties agree Brooks possessed at least 27. Finally, the similarity between prior offenses and the current offenses, and their closeness in time, are indicators of recidivism not adequately accounted for by the Guidelines and are therefore proper grounds for departure. United States v. Chavez-Botello, 905 F.2d 279, 281 (9th Cir. 1990).

4. The district court did not err in electing to depart upward based upon these circumstances. Each of the court's reasons for departing are appropriate under the Guidelines themselves or recent Ninth Circuit case law. Brooks has offered no reason why it was improper to depart upward and none is apparent on the record.

5. The extent of the departure was not unreasonable. The district court departed eight months from the maximum sentence permissible under the Guidelines. Brooks has asserted no basis for finding this unreasonable and none is apparent on the record.

II

Brooks argues the district court miscalculated the loss attributable to his crimes, resulting in an erroneous increase in the offense level. The district court calculated the total loss at $86,376.12. Because the loss exceeded $70,000, Brooks' offense level was increased by six points. Section 2F1.1(b) (1) (G). Brooks alleges the loss was in fact between $20,000 and $40,000, and his offense level should have been increased by only four points. See Section 2F1.1(b) (1) (E).

This issue was not properly raised below and is therefore waived unless the appellant shows "exceptional circumstances why the issue was not raised below." International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985) (internal quotations omitted). There has been no such showing here. Moreover, the issue was first raised in the appellant's reply brief. Again, Brooks' untimeliness constitutes a waiver. Eberle v. City of Anaheim, 901 F.2d 814, 817-18 (9th Cir. 1990).

III

Brooks argues that his rights under Federal Rule of Criminal Procedure 32(a) (1), 18 U.S.C. § 3552(d), and the due process clause were violated because he was provided the Presentence Report only three days before sentencing. Since Rule 32(a) (1) was not effective until December 1, 1989, nearly six months after Brooks was sentenced, it has no relevance to this case. Section 3552(d) does require the defendant be provided the Presentence Report ten days prior to sentencing, but Brooks expressly waived any objection to the tardiness at the sentencing hearing. R.T. II at 3. Brooks' consent to the belated receipt of the Presentence Report also obviated any due process violation.

IV

Brooks contends he received ineffective assistance of counsel below. Because factual determinations are necessary to determine the merits of this claim, it can be raised only in collateral proceedings. United States v. Birges, 723 F.2d 666, 670 (9th Cir. 1984).

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3