Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^** 

James Gilbert Baskin appeals his sentence imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his guilty plea to two counts of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). Baskin contends that the district court erred by departing upward from the applicable Guideline range based on Baskin's prior bank robbery conviction and the degree of planning involved in committing the offense. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

The legality of a criminal sentence is reviewed de novo. United States v. Chavez-Botello, 905 F.2d 279, 280 (9th Cir. 1990). We review the district court's upward departure from the Guideline range first to determine if departure is permissible and then to determine if the sentence imposed is unreasonable. United States v. Ward, 914 F.2d 1340, 1347 (9th Cir. 1990).

The district court may depart from the Guideline range if it finds an "aggravating or mitigating circumstance" not adequately considered by the Guidelines. 18 U.S.C. § 3553(b); Chavez-Botello, 905 F.2d at 280. An upward departure is permitted if there is an indication that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct. U.S.S.G. Sec. 4A1.3; Chavez-Botello, 905 F.2d at 281. "Since the similarity between the prior and current offenses is not considered when computing the criminal history category, a departure for this reason is permissible." Chavez-Botello, 905 F.2d at 281. The sophistication of a bank robber is also a factor not adequately considered by the Guidelines and thus can serve as a basis for departure. United States v. Castro-Cervantes, 911 F.2d 222, 224 (9th Cir. 1990). "When the court departs from the guidelines because a defendant's criminal history category is inadequate, the court is to 'use, as a reference, the guideline range for a defendant with a higher ... criminal history category.' " United States v. Cervantes Lucatero, 889 F.2d 916, 919 (9th Cir. 1989) (quoting U.S.S.G. Sec. 4A1.3); see also Ward, 914 F.2d at 1348.

Here, the district court gave two bases to justify its upward departure. First, the district court noted that Baskin's current bank robbery offense occurred only a short time after he served a sentence for his last bank robbery offense.¹  Second, the district court found that Baskin engaged in more than minimal planning for the offense in that he used a police frequency scanner, wore gloves, and was careful to wipe off door knobs before he left the bank. These were adequate bases for the departure. See Castro-Cervantes, 911 F.2d at 224; Chavez-Botello, 905 F.2d at 281.

The presentence report found that Baskin's base offense level is 19 and with a criminal history category of IV, the sentencing range is 46 to 57 months. In departing upward, the district court referred to the "next highest sentencing bracket", which is a criminal history category of V with a sentencing range of 57 to 71 months. Looking to this range the district court imposed a sentence of 71 months. Because the district court properly used the next higher criminal history category as a reference in imposing sentence, the departure to 71 months was reasonable. Cf. Cervantes Lucatero, 917 F.2d at 919.

Thus, the district court did not err by departing upward. See Castro-Cervantes, 911 F.2d at 224; Chavez-Botello, 905 F.2d at 281; cf. Cervantes Lucatero, 917 F.2d at 919.

AFFIRMED.