Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 925 F.2d 1471 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Jimmy KLAIN, Defendant-Appellant.

No. 90-10032.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 1991.Decided Feb. 13, 1991.

Before SCHROEDER, PREGERSON and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM* 

PROCEDURAL AND FACTUAL BACKGROUND

On November 24, 1987, appellant Jimmy Klain, an Indian, killed his girlfriend and then went to Tuba City, Arizona, on the Navaho Indian Reservation. There he shot and seriously injured an employee of a trading post. He pleaded guilty to a charge of assault resulting in serious bodily injury.

At the time of sentencing in the federal district court, Klain had been sentenced to a life term by an Arizona state court for the murder of his girlfriend. At sentencing, the district court imposed a sentence of 51 months, to run consecutively to Klain's term on the state charges, for which he was then imprisoned in state facilities. Klain contends on appeal that the court below erred in not informing him prior to the sentencing hearing that a consecutive sentence was a possibility, and that the district court relied on improper information in imposing a consecutive sentence. We affirm.

DISCUSSION

The presentence report recommended a Sentencing Guidelines range of 41 to 51 months. A sentence consecutive to the state sentence was not recommended or mentioned in the presentence report. The presentence report noted that Mr. Klain had volunteered that he had been arrested in August, 1987, for striking his girlfriend. After his arrest, she dropped the charges. The presentence report also noted that Klain had been married in 1970 and that four children were born of the marriage, which ended in a permanent separation in 1980. It also noted that Klain entered a five year putative marriage in 1981 and that two children had been born of that relationship.

At the sentencing hearing, the district court discussed the question of consecutive or concurrent sentencing with counsel for the United States and for Klain. The court said:

And again, looking at the guidelines, they would seem to suggest that if, in fact, they are separate, isolated--or separate events, not a part of the immediate crime, that then the sentence should be consecutive.

Counsel for Klain later said:

Your Honor, my understanding is that the guidelines have changed, and that the court now has the authority to order that the sentence run concurrent with the state sentence, and order that the federal sentence be served at the state institution.

The court went on to say later:

I have looked at the presentence report, of course, and I know that, at least that Mr. Klain had assault--was said to have assaulted Ms. Klitso some short time before the homicide. And that charge was then dismissed, I think, because she seemingly didn't want to prosecute.

Mr. Klain, of course, has a fourth grade--or a high school education and certainly has a history of employment at various times before that.

I notice that he has four children by one woman and two children by another. And seemingly, has provided little, if any, support for those people during his lifetime--during their lifetime.

Seems to me that, certainly, Mr. Klain has a substantial sentence in the state court. On the other hand, if, in fact, the person that he assaulted here, if there is to be some punishment specifically for that crime, the only way it is going to happen is if he gets a consecutive sentence....

The court further said:

As statement of reasons for imposing sentence, I find that there are no controverted guideline relevant facts.

The court accepted the plea agreement and noted that he did not depart from the guidelines.

Klain contends on appeal that he was entitled to notice that the court was considering imposing a consecutive sentence, citing the case of U.S. v. Nuno-Para, 877 F.2d 1409 (9th Cir. 1989), by analogy. In Nuno-Para, this court held that information relied upon as a basis for departure from the Sentencing Guidelines must be identified as such and that it is not sufficient that it merely be present within the body of the presentence report. Since this case does not involve a departure from the guidelines, Nuno-Para is not on point.

The Federal Rules of Criminal Procedure, Rule 32(a) (1), requires that the court provide the defendant with notice of the probation officer's determination of "the sentencing classification and sentencing guidelines range believed to be applicable." The Rule does not require that notice be given that a consecutive sentence is being considered. In fact, " [m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." 18 U.S.C. § 3584(a) (emphasis added).

Klain further contends that the court improperly relied on the assault of his girlfriend and his nonsupport of his children as the basis for imposing the consecutive sentence. While the district court did mention those two factors in the colloquy prior to sentencing, the court also mentioned the fact that, in the absence of a consecutive sentence, there would be no punishment for the assault committed on the reservation. This last factor would certainly support the district court's exercise of its discretion in imposing a consecutive sentence. The presence or absence of other factors is irrelevant where, as here, the sentence is not shown to be an abuse of discretion.

For the reasons stated, the sentence appealed from is AFFIRMED.

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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