Unpublished Disposition, 940 F.2d 1536 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 940 F.2d 1536 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Wayne Veldon AULT, Defendant-Appellant.

No. 89-50370.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1990.Decided Aug. 14, 1991.

Before D.W. NELSON and REINHARDT, Circuit Judges, and TANNER,*  District Judge.

MEMORANDUM** 

Appellant Wayne Veldon Ault pleaded guilty to one count of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). He was classified as a career offender under the Federal Sentencing Guidelines. U.S.S.G. Sec. 4B1.1 (Nov.1989).1  The basis for treating Ault as a career offender was the determination that he had been convicted of robbery in 1970 and 1971. This determination was based upon the Long Beach Superior Court, Los Angeles Superior Court and California Department of Corrections records, which, according to the probation officer who prepared the probation report, showed the following facts: Ault was convicted of second degree robbery on April 30, 1970, and was sentenced to one year imprisonment to be followed by three years of supervised release; Ault was released from custody in January, 1971; on July 16, 1971, Ault was convicted of first degree robbery and sentenced to six months to life in prison; because of his conviction for first degree robbery, on that same day, July 16, 1971, the same court that imposed his sentence for first degree robbery revoked Ault's probation for the 1970 second degree conviction and sentenced Ault to an additional term of six months to life to be served concurrently with the sentence for the 1971 robbery conviction. The probation officer further found that Ault was: discharged on the 1970 robbery on January 30, 1976; paroled on the 1971 robbery on March 18, 1976; and discharged on the 1971 robbery on November 22, 1987. The district court accepted the findings of the probation report.

The district court found that the Guideline imprisonment range was 210 to 262 months. Because the court believed that the career offender classification overstated the seriousness of Ault's criminal history, it departed downward and sentenced him to 102 months imprisonment. Ault appeals his sentence. We address his arguments in turn.

* Ault committed the instant offense during the five-month period between our decision holding the Guidelines unconstitutional, see Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), vacated sub nom. United States v. Chavez-Sanchez, 109 S. Ct. 859 (1989), and the Supreme Court's decision effectively overruling Gubiensio-Ortiz. See Mistretta v. United States, 488 U.S. 361 (1989). Ault entered his guilty plea after Mistretta was decided. He argues that "retroactive" application of the Guidelines to his offense violates the Constitution's prohibition on ex post facto laws, U.S. Const. art. I, Sec. 9, cl. 3, as well as the due process clause of the fifth amendment. We rejected this very argument in United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1052-53 (9th Cir. 1990). Accordingly, the Guidelines may lawfully be applied to Ault.

II

Ault next argues that his sentence was "arbitrary" in violation of the due process clause of the fifth amendment because the process by which it was calculated accorded too much weight to his prior convictions for conduct which occurred, respectively, 17 and 18 years before the instant offense. He does not argue that the guidelines fail to consider the remoteness in time of past offenses. They do consider remoteness. U.S.S.G. Sec. 4A1.2(e). Ault argues that the Guidelines do not give sufficient weight to the remoteness in time of past offenses. This argument is precluded by United States v. Brady, 895 F.2d 538, 543 (9th Cir. 1990), where we held that due process does not guarantee a defendant the right to have various sentencing factors be given particular weights.

III

The district court found that Ault was discharged on the 1970 robbery conviction on January 30, 1976. Ault argues on appeal, as he did below, that the Department of Corrections record upon which this finding was based is unreliable.

The record upon which the district court relied is captioned "Cumulative Case Summary." It consists of a single page out of a four-page document titled "Summary of Sentence Data." As a threshold matter, Ault contends that the district judge was not entitled to rely on the Cumulative Case Summary because it is unreliable. In support of this theory, he points out that it contains only one notation of Ault's 1970 robbery discharge, this notation is in pencil, and the document was neither signed nor certified. He argues that anyone could have made the entry.

Under the Guidelines, evidence used in determining a defendant's sentence must be reliable. United States v. Wilson, 900 F.2d 1350, 1352 (9th Cir. 1990). The commentary to sentencing guideline Sec. 6A1.3 provides: "In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. Any information may be considered, so long as it has 'sufficient indicia of reliability to support its probable accuracy.' " (citation omitted).

The Cumulative Case Summary more than meets the test of "probable accuracy." It is a public record that would be admissible at trial pursuant to Rule 803(8) of the Federal Rules of Evidence. See Fed.R.Evid. 803(8) & accompanying advisory note. Ault has introduced no evidence which would call the Cumulative Case Summary into question, nor has he suggested a motive for the Department of Corrections to write an incorrect entry. Furthermore, the entry bears its own indicia of reliability. For example, it designates the proper case number for the 1970 conviction. Accordingly, we find that the district court did not err in relying on the Cumulative Case Summary.

Having determined that the district court properly considered the Cumulative Case Summary, we must now consider whether the court's finding based on that document is clearly erroneous. See United States v. Wills, 881 F.2d 823, 827 (9th Cir. 1989). The district court was required to apply a preponderance of the evidence standard in determining the date of discharge. See Wilson, 900 F.2d at 1354-55 (9th Cir. 1990).

Although the district court did not articulate a standard of proof for facts underlying its application of the Guidelines, the record demonstrates that the court used at least a preponderance of the evidence standard. Compare id. The district judge personally examined the California Department of Corrections records and agreed with the probation officers' assessment of Ault's criminal history. Given the court's extensive fact-finding and the inherent reliability of the California Department of Corrections public records, the district court's determination that the 1970 conviction was discharged on January 30, 1986 was not clearly erroneous.

IV

Based on his examination of the relevant documents, the district judge made an oral finding adopting the probation officer's finding with respect to the date of Ault's discharge for the 1970 robbery. Ault contends that the judge's finding did not comply with the rule requiring that when a defendant challenges the factual accuracy of a presentence report the district court must make a finding as to the allegation. Fed. R. Crim. P. 32(c) (3) (D). We require strict compliance with the rule. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc). We have held that where a district judge makes oral findings but no written findings, " [t]he appropriate remedy is a limited remand to the district court with instructions that the court append a transcript of its proceedings to the presentence investigation report." United States v. Roberson, 917 F.2d 1158, 1159 (9th Cir. 1990). Accordingly, a limited remand is required so that the district court may perform this ministerial task.

V

During the course of Ault's sentencing hearing, the district judge--who is a former California state court judge--spoke at some length about the system of sentencing and probation in California. Ault argues that the district judge's statements were improper. He contends that the judge acted as an expert witness.

We note initially that Ault did not preserve this issue for appeal because he did not express any objection to the judge's comments during the proceedings below. See United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). In any event, Ault's argument is unavailing. The district judge did not purport to be an expert in interpreting California Department of Corrections records but rather was attempting to explain how Ault's criminal history was calculated by the probation officer. We do not require that judges pretend ignorance of their familiarity with the practical operations and functioning of the state or federal justice system.


VI

Ault argues that he was improperly classified as a career offender. The Sentencing Guidelines set forth three requirements that must be satisfied in order for a defendant to be classified as a career offender. A defendant is a career offender if:

(1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. Sec. 4B1.1.

Ault first argues that the instant offense is not a crime of violence.2  This argument is not properly before us as it was not raised below. In any event, assuming we may reach the question, the Commentary to the Guidelines expressly states that robbery is a crime of violence. U.S.S.G. Sec. 4B1.2, comment 2.

Ault next contends that the third criterion has not been met because he does not have two prior felony convictions. He argues that the 1970 and 1971 robberies should be treated as one offense because in the absence of the 1971 robbery the 1970 robbery would have been too remote in time to be counted in determining his criminal history. Guideline 4B1.2(3) provides that two prior convictions means two convictions "counted separately under" section 4A of the Guidelines. U.S.S.G. Sec. 4B1.2(3) (B). The relevant provisions of section 4A are found in guideline 4A1.2. See U.S.S.G. Sec. 4B1.2, comment 4. (" [t]he provisions of Sec. 4A1.2 ... are applicable to the counting of convictions under Sec. 4B1.1."). Thus, we must consider look to section 4A to determine whether the 1970 and 1971 robbery convictions are counted separately.

Section 4A1.2(e) (1) provides that a sentence exceeding one year and one month is counted if it was imposed within 15 years of the instant offense or if the defendant was incarcerated for that offense during any part of the 15-year period preceding the instant offense. It is clear that the 1971 robbery is counted under this provision. As for the 1970 robbery, the time Ault served in prison before he was released on probation does not come within the 15-year limit. The time he served after his probation was revoked, however, does. Thus, because a "part" of the sentence for the 1970 robbery was served within the 15-year limit, the 1970 robbery conviction is also counted. See U.S.S.G. Sec. 4A1.2(k) (2) (revocation of probation will under some circumstances "affect the time period under which certain sentences are counted").

The Commentary to Section 4A1.2 makes plain that the 1970 and 1971 robbery sentences should be counted as separate offenses. Application Note 11 provides:

Section 4A1.2(k) covers revocations of probation and other conditional sentences where the original term of imprisonment imposed, if any, did not exceed one year and one month. Rather than count the original sentence and the resentence after revocation as separate sentences, the sentence given upon revocation should be added to the original sentence of imprisonment, if any, and the total should be counted as if it were one sentence. By this approach, no more than three points will be assessed for a single conviction, even if probation or conditional release was subsequently revoked. If the sentence originally imposed, the sentence imposed upon revocation, or the total of both sentences exceeded one year and one month, the maximum three points would be assigned. If, however, at the time of revocation another sentence was imposed for a new criminal conviction, that conviction would be computed separately from the sentence imposed for the revocation.

(emphasis added). The emphasized text leaves no doubt that the probation revocation and the new criminal conviction are to be treated as separate offenses.

Despite the plain language of the Guidelines and Commentary, Ault argues that the two robbery convictions are "related," and therefore must "be treated as one sentence for purposes of the criminal history." U.S.S.G. Sec. 4A1.2(a) (2). He points to Application Note 3, which provides: "Cases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing."3  However, none of these provisions applies because as Application Note 11 makes clear, the relevant "cases" are not the probation revocation and the 1971 robbery but the 1970 robbery and the 1971 robbery. These cases are clearly unrelated under the provisions of Application Note 3.

AFFIRMED IN PART AND REMANDED IN PART.

 *

The Honorable Jack E. Tanner, United States District Judge for the Western District of Washington, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3

 1

The defendant was sentenced on July 7, 1989. All citations to the Sentencing Guidelines refer to the provisions in effect at that time

 2

The parties agree that the instant offense is not a controlled substance offense

 3

In United States v. Gross, 897 F.2d 414, 416-17 (9th Cir. 1990), we rejected the third provision of Application Note 3 because "application notes are not binding law." This proposition is currently under review by the en banc court in United States v. Anderson, 911 F.2d 380 (9th Cir. 1990) (order that case be reheard en banc). We may assume for present purposes that Anderson will overrule Gross because whether or not we are required to give effect to the third portion of Application Note 3, we conclude that Ault's convictions for the 1970 and 1971 robbery are unrelated