Unpublished Disposition, 937 F.2d 614 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Donald Scott SILKS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Donald Scott SILKS, Defendant-Appellant.

Nos. 89-10519, 90-10034

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.* Decided July 1, 1991.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


MEMORANDUM** 

In these consolidated appeals, Donald Scott Silks appeals his sentences imposed following his guilty plea to armed robbery and revocation of his probation for drug offenses. In No. 89-10159, he appeals his sentence for two counts of armed robbery of a financial institution in violation of 18 U.S.C. § 2113(a) and (d) and two counts of use of a firearm in commission of a felony in violation of 18 U.S.C. § 924(c). In No. 90-10034, he appeals his sentence following revocation of probation on his convictions for conspiracy to import and importation of marijuana and interstate transportation of a stolen airplane, in violation of 18 U.S.C. §§ 2 and 2312 and 21 U.S.C. §§ 952(a) and 963. We dismiss the appeal in No. 89-10159 for lack of jurisdiction and affirm the sentence in No. 90-10034.

"In a criminal case the notice of appeal by a defendant shall be filed ... within 10 days after the entry of (i) the judgment...." Fed. R. App. P. 4(b). Time for filing may be extended only upon a showing of excusable neglect. Id. Attorney neglect does not meet the standard of excusable neglect. United States v. Avendano-Camacho, 786 F.2d 1392, 1394-95 (9th Cir. 1986).

Judgment was entered against Silks in this case on September 18, 1989. His notice of appeal was not filed until September 29, 1989, one day after the deadline. Although defense counsel has indicated that this error was due to his own inadvertence rather than any fault of the appellant, such inadvertence does not constitute grounds for extending the time to appeal.1  See id. Accordingly, we lack jurisdiction to entertain the appeal and must dismiss it.2 

Subsequent to his sentencing for the 1989 bank robberies, Silks' probation for his 1987 convictions was revoked and he was sentenced to five years' imprisonment to run consecutive to his sentence for the 1989 convictions. He contends that the second sentence constitutes double punishment for the same conduct, in violation of the double jeopardy clause, because his probationary status led to a two-point enhancement of his criminal history score when the district court calculated his sentence for the 1989 convictions under the United States Sentencing Guidelines.

"The same actions by a probationer can lead to direct punishment and can also constitute the basis on which his probation for a prior offense is revoked." United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985). Under the Guidelines, a defendant's criminal history is used to calculate the appropriate sentence within the statutory range already prescribed for his offense. Consequently, the award of criminal history points for prior criminal conduct is not an "additional punishment" added to a defendant's sentence and does not preclude the defendant's serving a separate sentence for the offense underlying the criminal history points. See, e.g., United States v. Wright, 891 F.2d 209, 212 (9th Cir. 1989) (no double jeopardy violation where district court enhanced defendant's Guidelines range for escape because she was serving a criminal sentence at the time she escaped from federal custody). In addition, " [i]t is not unreasonable to enhance the punishment of an offender who again violates the law before fully serving his prior punishment." United States v. McCrudden, 894 F.2d 338, 339 (9th Cir.), cert. denied, 110 S. Ct. 1534 (1990).

Here, Silks had been convicted of drug offenses in 1987 and was on probation for those offenses when he committed armed robbery. Because he was on probation, Silks' Guidelines criminal history score for the armed robbery was enhanced. See U.S.S.G. Sec. 4A1.1(d). His commission of the armed robbery also violated the terms of his probationary sentence for the prior offenses. This led to revocation of his probation and imposition of a separate sentence for his 1987 drug offenses.

The fact that Silks had not yet fully served his punishment for earlier crimes mandated that he receive a higher sentence within the statutory range for armed robbery than he would have received otherwise. See McCrudden, 894 F.2d at 339. This is unrelated to the fact that he was also subject to punishment for his 1987 offenses, and could be imprisoned for those offenses if he violated his probation. Revocation of Silks' probation did not implicate double jeopardy. See Wright, 891 F.2d at 212.

DISMISSED IN PART, AFFIRMED IN PART.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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

 1

On February 8, 1991, following limited remand by this court, the district court entered an order finding that there had been no showing of excusable neglect which would support an extension of time to file the notice of appeal under Fed. R. App. P. 4(b)

 2

We express no opinion as to whether defense counsel's failure to timely file the notice of appeal or timely raise objections to Silks' sentence before the district court constitute ineffective assistance of counsel. Silks may pursue these claims by way of a petition for relief under 28 U.S.C. § 2255. See Avendano-Camacho, 786 F.2d at 1395