Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

MEMORANDUM^** 

The district court departed upward from the Sentencing Guidelines to increase Daniel D. Clark's criminal history category and sentence. Clark appeals the upward departure. We affirm the sentence.

DISCUSSION

Clark contends that his two convictions for automobile theft, both over twenty years old, are too remote for inclusion in the calculation of his criminal history category. Indeed, the Guidelines exclude convictions over ten years old from calculation in the criminal history category. Sentencing Guideline Sec. 4A1.2(e). We have concluded, however, that upward departure is permissible to include remote convictions in the calculation of criminal history where those convictions are evidence of misconduct similar to the sentencing offense. United States v. Leake, 908 F.2d 550, 554 (9th Cir. 1990); Commentary to Sentencing Guideline Sec. 4A1.2, Application Note 8.

Clark argues that his convictions--the two remote ones for interstate automobile theft and his current one for theft of an interstate shipment of tires--are not sufficiently similar misconduct to justify the upward departure. In United States v. Cota-Guerrero, 907 F.2d 87, 89 (9th Cir. 1990), we held that remote convictions for assault and battery and a sentencing conviction for possession of a firearm by a felon were sufficiently similar for an upward departure in the criminal history category. We reasoned that all the offenses showed "a propensity toward violence and a willingness to use force." Id. Likewise here, Clark's three convictions show a propensity to steal property and flee with it. Moreover, all three convictions entail interstate transport of stolen goods. We therefore hold that the district court did not err in departing upward to include Clark's two remote convictions in calculation of his criminal history category.

Clark argues that the Guidelines permit such a departure only when "the government is able to show ... evidence of similar misconduct." Commentary to Sentencing Guidelines Sec. 4A1.2, Application Note 8 (emphasis added). In his case, Clark notes, only the probation officer preparing his presentence report sought to show the similarity of the convictions, and the government did not itself request an upward departure. The district court erred, Clark thus argues, in granting the departure. We reject Clark's argument.

The Guidelines indicate that the government appropriately bears the burden of proof for such upward departures. Id. In Clark's case, though, there are no disputed factual issues. The parties agree about the factual basis of Clark's three convictions. Whether those convictions were sufficiently similar was thus only an issue of law. We have affirmed the district court's holding the convictions were sufficiently similar as a matter of law. Where no facts are in dispute, who requested the departure and bore the burden of proof is simply irrelevant.

CONCLUSION

The sentence of the district court is AFFIRMED.