Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

MEMORANDUM^** 

Susan Taylor Trexler appeals the sentence imposed by the district judge after pleading guilty to two counts of unauthorized use of an access device in violation of 18 U.S.C. § 1029(a) (2) and (c). The judge departed upward from a guideline range of 30-37 months and imposed a sentence of 48 months in prison. Trexler appeals the propriety of the upward departure. We vacate the sentence and remand for resentencing.

In announcing the sentence, the district court described the two factors that it felt warranted an upward departure in this case. But in addition to requiring an explanation of the reasons for departing, our cases have also required that the sentencing judge explain how he arrived at the degree of departure. See United States v. Perez-Magana, 929 F.2d 518, 521-23 (9th Cir. 1991) (stating rule and collecting cases). In this case, the court simply announced that it was adopting the probation officer's recommendation to depart to 48 months. The appellant has a total offense level of 12 and criminal history category VI; in order to reach the 48-month sentence, one would have to assign Trexler an offense level of 15. In order to justify such a departure, the judge must explain why that level is appropriate.

We note that an en banc panel of this Court has heard argument in United States v. Lira-Barraza, 897 F.2d 981 (9th Cir.), reh. granted en banc, 909 F.2d 1370 (1990). While we cannot know when that opinion will issue (and we do not necessarily expect the district court to delay resentencing in this matter pending its issuance), it will surely cast further light on this Circuit's approach to upward departures.

We vacate the sentence, then, on the basis that the judge did not explain the degree of departure. We offer the following thoughts regarding the departure factors in the event the district court decides to depart upward upon resentencing. A sentencing judge may only depart based upon factors "not adequately taken into consideration" by the Guidelines themselves. 18 U.S.C. § 3553(b); U.S.S.G. Sec. 5K2.0. The decision to depart in this case was based at least in part upon the amount of money involved in the offense. The graduated loss levels provided in Sec. 2F1.1(b) (1), however, clearly account for losses in excess of the $200,000 involved in the appellant's offenses. Likewise, the fact that Trexler's offenses involved "extensive planning" is a factor already considered in relation to this particular offense, Sec. 2F1.1(b) (2), and indeed, her offense level was increased pursuant to that section. For these reasons, these two factors appear to be inappropriate factors upon which to base an upward departure.

Lastly, we note that the claim that the appellant's criminal history category does not adequately reflect the seriousness of her past criminality must be explained with sufficient precision to permit a reviewing court to determine the accuracy of that statement. A judge must identify the particular aspects of prior sentences that make departure under Sec. 4A1.3 appropriate.

The sentence is VACATED and REMANDED for resentencing.