Unpublished Disposition, 940 F.2d 1537 (9th Cir. 1990)

MEMORANDUM^** 

Lawrence Ramirez appeals his sentence imposed following entry of a guilty plea to three counts of bank robbery, in violation of 18 U.S.C. § 2113(a). Ramirez contends the district court erred by counting a "conditional sentence" imposed for driving on a suspended license in calculating his criminal history category under the United States Sentencing Guidelines (Guidelines), and that this led to the further error of penalizing Ramirez for committing the offense of conviction while under a criminal justice sentence. In addition, Ramirez contends the district court clearly erred by finding that he possessed a weapon during one of the counts of conviction. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

* Criminal History Category

Ramirez contends that a conditional sentence imposed pursuant to California law for driving on a suspended license is different from a term of summary probation for purposes of calculating criminal history under the Guidelines. The California legislature abolished summary probation in 1983, replacing it with a conditional sentence, and thereafter linked probation with both court supervision and preparation of a presentence report. Ramirez argues that the newly created conditional sentence was thus "relegated to a lower status than the old summary probation" and should not count for purposes of calculating criminal history under the Guidelines.

We review de novo the district court's application of the Guidelines. United States v. McCrudden, 894 F.2d 338, 338 (9th Cir.), cert. denied, 110 S. Ct. 1534 (1990). Because the Guidelines are "intended to be used nationally and to define federal sentences for federal crimes," state law definitions are not material to application of the Guidelines. United States v. Aichele, 912 F.2d 1170, 1171 (9th Cir. 1990). Section 4A1.2(c) provides for counting misdemeanor offenses in calculating criminal history if "the sentence was a term of probation of at least one year." U.S.S.G. Sec. 4A1.2(c) (1) (A) (West 1990). "The [G]uidelines make no provision for treating 'unsupervised' probation as less than probation. Even if unsupervised, probation can be revoked and replaced by a sentence of greater punishment if further offenses are committed during the probationary period." McCrudden, 894 F.2d at 339.

Ramirez received a sentence of 36 months "summary probation" for the 1987 driving on a suspended license conviction at issue here (ER 19). At the time of that conviction, however, California law no longer provided for terms of "summary probation," having substituted a "conditional sentence" in place of "summary probation" in the relevant sections of the penal code. See, e.g., Cal.Penal Code Secs. 1203(a) and 1203b (West 1991). As used in California, the term "conditional sentence" means "the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to the conditions established by the court without the supervision of the probation officer." Cal.Penal Code Sec. 1203(a). Violation of the terms of a conditional sentence may result in rearrest, revocation or termination of the conditional sentence, and resentencing. Cal.Penal Code Sec. 1203.2 (West 1991). Despite the change in name, a "conditional sentence" retains the essential characteristics of "summary probation," which qualifies as a term of probation for purposes of U.S.S.G. Sec. 4A1.2. See McCrudden, 894 F.2d at 339. Therefore, the district court did not err in calculating Ramirez' criminal history category by counting the conditional sentence imposed for driving on a suspended license. See id.

Ramirez also contends the district court erred by adding two points to his criminal history calculation for committing the offense of conviction while on "summary probation" to the Los Banos Justice Court for the driving on a suspended license conviction. The Guidelines provide for the addition of two points to a criminal history calculation "if the defendant committed the instant offense while under any criminal justice sentence, including probation." U.S.S.G. Sec. 4A1.1(d) (West 1990). A criminal justice sentence is any sentence countable under Section 4A1.2. U.S.S.G. Sec. 4A1.1 comment. n. 4 (West 1990). Because we hold that the suspended license conviction was countable under section 4A1.2, Ramirez' argument on this issue must fail. See U.S.S.G. Sec. 4A1.1 comment. n. 4.

II

Possession of a Weapon

Ramirez contends the evidence was insufficient to establish by a preponderance that he possessed a weapon during the April 18, 1990 robbery charged in count three of the indictment. Therefore, he argues, the district court improperly adjusted upward his robbery base offense level for possession of a weapon during the offense of conviction. We review for clear error the district court's factual finding underlying its application of the Guidelines. United States v. Bos, 917 F.2d 1178, 1180 (9th Cir. 1990). Factual findings underlying application of the Guidelines must be supported by a preponderance of the evidence. United States v. Smith, 905 F.2d 1296, 1299 n. 2 (9th Cir. 1990).

The Guidelines provide that "if a dangerous weapon (including a firearm) was brandished, displayed or possessed," the defendant's base offense level should be adjusted upward by three levels. U.S.S.G. Sec. 2B3.1(b) (2) (C) (West 1990). The commentary to this section further provides that even an object that only "appeared to be a dangerous weapon" is a dangerous weapon. U.S.S.G. Sec. 2B3.1 comment. n. 2; see, e.g., United States v. Martinez-Jimenez, 864 F.2d 664, 666-667 (9th Cir.) (harm that robber creates when carrying toy gun is similar to harm created when carrying unloaded gun), cert. denied, 489 U.S. 1099 (1989).

Here, the district court had before it evidence that a teller at the April 18, 1990 robbery saw what appeared to be the butt of a pistol sticking out of Ramirez' pocket, and that she saw it because Ramirez raised his arm and showed it to her. In addition, there was evidence that Ramirez had called a federal agent and confessed to the April 18, 1990 robbery, stating that he had used a fake gun during the robbery.¹  In light of this evidence, we cannot say the district court clearly erred in finding that Ramirez deserved a three point upward adjustment in his offense level for brandishing, possessing, or displaying a dangerous weapon, even if it was only a fake gun, during the April 18, 1990 robbery. See Smith, 905 F.2d at 1300.

AFFIRMED.