Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1990)

MEMORANDUM^* 

Defendant-appellant Leonard Bruce Carron appeals his sentence for unauthorized use of an access device in violation of 18 U.S.C. § 1030(a) (2), a misdemeanor. He contends that the magistrate erred in failing to adequately state her reasons for departing upwards from the Sentencing Guidelines. The magistrate found that Carron's criminal-history score inadequately represented his criminal history because he had older similar convictions and pending charges which were not included in his score, and increased his criminal history category from II to IV.

STATEMENT OF THE CASE AND FACTS

On March 7, 1990, Carron was arrested in San Diego for the unauthorized use of two credit cards. He was charged with one felony count of unauthorized use of access devices, 18 U.S.C. § 1029(a) (2), and one misdemeanor count of unauthorized computer access, 18 U.S.C. § 1030(a) (2). He pled guilty to the misdemeanor count in exchange for dismissal of the felony count. The probation department's presentence report calculated the base offense level per U.S.S.G. Sec. 2F1.1 as a Level 6. A three-point enhancement increased the base offense level to 9 based on the amount of the loss, number of victims, and the more than minimal planning involved. The probation officer concluded that an acceptance of responsibility reduction was not appropriate.

Carron had two criminal history points based on a 1980 and a 1981 larceny by check conviction. Therefore, he was placed in criminal history category II. The guideline range for a base offense level 9 and criminal history category II is six to twelve months. U.S.S.G. Sec. 5A. The probation officer recommended the high end of the range, twelve months. In addition, the presentence report noted the possibility for an upward departure based on U.S.S.G. Sec. 4A1.3, relating to adequacy of criminal history.

The magistrate adopted the calculations of the probation department except that she included a two-point reduction for acceptance of responsibility. The offense level was reduced from nine to seven, resulting in a guideline range of two to eight months. U.S.S.G. Sec. 5A. However, the court departed upwards based on the inadequacy of Carron's criminal history score. The court indicated that Carron's criminal history category underrepresented the seriousness of his past conduct and the likelihood that he would commit future crimes based on prior convictions for larceny-related offenses not included in his criminal history score because they occurred over ten years earlier. In addition, the court noted that there were four outstanding charges currently pending against the defendant, three for larceny offenses.

The court concluded that Carron's criminal history was more reflective of a defendant with a criminal history category IV than criminal history category II. The guideline range for a base offense level 7 and criminal history category IV is 8 to 14 months. U.S.S.G. Sec. 5A. The magistrate sentenced Carron to 12 months incarceration followed by 12 months of supervised release and ordered restitution to the two credit card companies.¹  This sentence was upheld on appeal to the district court, which found that the magistrate clearly and adequately stated her reasons for departure. Carron timely appeals the district court's affirmance of his sentence.

STANDARD OF REVIEW

This court reviews de novo whether a departure was permitted under the Sentencing Guidelines. United States v. Gayou, 901 F.2d 746, 747 (9th Cir. 1990). We evaluate a departure from the guidelines under a two-prong test: (1) whether the departure is permissible, and (2) whether the sentence is unreasonable. United States v. Ramirez Acosta, 895 F.2d 597, 599 (9th Cir. 1990); United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989); United States v. Borrayo, 898 F.2d 91, 93 (9th Cir. 1989).

DISCUSSION

I. DEPARTURE FOR INADEQUATE CRIMINAL HISTORY

A sentencing court may depart from the Sentencing Guidelines if the defendant's criminal history category is found to inadequately reflect the defendant's "past criminal conduct or the likelihood that the defendant will commit other crimes...." U.S.S.G. Sec. 4A1.3. "However, since the Guidelines have already accounted for criminal history, a court should depart based on inadequate criminal history only in those limited cases when a defendant's record is 'significantly more serious' than that of other defendants in the same criminal history category." United States v. Singleton, 917 F.2d 411, 412 (9th Cir. 1990) (quoting Gayou, 901 F.2d at 748). When a sentencing court does depart based on criminal history, this court has required a specific explanation of the particular facts which support a finding that the criminal history category is inadequate. Id. (citations omitted).

The guidelines suggest possible reasons for an upward departure based on an inadequate criminal history score. Among these are "whether the defendant was pending trial, sentencing, or appeal on another charge at the time of the instant offense," U.S.S.G. Sec. 4A1.3 p.s., and "similarity of past conduct underlying prior convictions," U.S.S.G. Sec. 4A1.1, comment. (backg'd). This court has held that remote offenses may only justify departure if they are similar in nature to the current offense. United States v. Leake, 908 F.2d 550, 554 (9th Cir. 1990).

Here, the magistrate did completely, and in detail, relate her reasons for the direction of the departure: Carron's previous convictions for similar crimes which were too remote to be included in his criminal history score indicated a propensity to commit future crimes; in addition, at the time of sentencing, he had three outstanding warrants for misdemeanor charges similar to the current offense. These are appropriate reasons on which to justify upward departure. Therefore, the court's departure was permissible.

II. REASONABLENESS OF THE DEGREE OF DEPARTURE

The sentencing court must not only justify the direction of the departure, but also the degree. See, e.g., United States v. Todd, 909 F.2d 395, 398 (9th Cir. 1990) (sentence remanded when judge failed to explain reason for 20-month upward departure). Our court has emphasized the necessity of a fact-specific explanation for meaningful appellate review of the reasonableness of a sentence. 18 U.S.C. § 3742(e); United States v. Wells, 878 F.2d 1232, 1233. We have stressed that a sentencing court should analogize to Guideline ranges for higher criminal history categories when departing upwards, Gayou, 901 F.2d at 749; however, " [t]he district court's analogy ... need only be 'reasonable,' " United States v. Montenegro-Rojo, 908 F.2d 425, 431 (9th Cir. 1990).

In United States v. Richison, 901 F.2d 778 (9th Cir. 1990), this court remanded for resentencing a case in which the sentencing court had departed upwards from criminal history category I to criminal history category IV based on the inadequacy of the defendant's criminal history score. Id. at 781. Our court directed the sentencing court on remand to:

consider whether Richison's criminal history most closely resembles that of defendants with a Category II criminal history, or is so egregious that further departure is warranted. Another factor that the district court should consider is the extent to which the Guidelines have already considered whether old sentences should be counted, see U.S.S.G. Sec. 4A1.1, and the specific reasons why this particular defendant's criminal history is more serious than others in Category I.

Id.

At the sentencing hearing here, Carron argued that if an upward departure was required, the court should only increase the criminal history category to category III. This conclusion was reached by increasing Carron's criminal history score with points for the four charges currently pending.²  The court rejected this argument and found that a criminal history category of IV was more appropriate.

Explaining its decision, the court stated:

I find that criminal-history category ... 4 more adequately reflects your past criminal history. I find that your criminal conduct is so egregious that it most closely resembles a defendant who has a criminal-history category number 4.

And the reason I say that is because all these thefts--all these crimes involve larceny--involves you obtaining property by fraud; that is, through a check, where in some cases you have served time; in others, you have not, but certainly there's a consistent pattern, and that pattern, although there were times when you went years without committing any crimes, you certainly have gone back to that pattern in the most recent years, and so I find that a person in criminal-history category 3 does not--that you do not reflect the criminal-history--the conduct of a person, criminal-history category number 3, and that you more closely reflect someone whose conduct is egregious, whose criminal history is reflected in criminal-history category number 4.

While the sentencing court here did analogize to higher criminal history categories, Carron asserts that its rejection of a departure to category III was conclusory, making appellate review of the decision impossible. He contends that the court's explanation is equivalent to those that were found inadequate by this court in previous cases.

However, if the sentencing transcript is taken as a whole, the magistrate's conclusion must be seen as a rejection of Carron's recommendation to use criminal history category III. The judge stressed that she was considering Carron's prior similar crimes, in addition to his pending charges, and, therefore, felt a higher category was appropriate. The explanation given by the judge, in conjunction with the statements by both the government's and Carron's attorneys, is more than adequate for meaningful appellate review.

Because the degree of departure was proper and adequately explained, we find the sentence imposed reasonable.³  The magistrate stated that the guideline range with the higher criminal history category was 8 to 14 months. The twelve-month sentence imposed is within the applicable range.

The sentence is AFFIRMED.