United States of America, Plaintiff-appellee, v. David William Herriford, Defendant-appellant, 972 F.2d 1345 (9th Cir. 1992)

Before KOZINSKI and THOMPSON, Circuit Judges, and VON DER HEYDT, Senior District Judge.^** 

MEMORANDUM^*** 

Identification of U.S.S.G. § 4A1.3 as a basis for upward departure in both the presentence report and the probation officer's memorandum provided adequate notice of a possible upward departure. See United States v. Brady, 928 F.2d 844, 847 (9th Cir. 1991); United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir. 1989).

The departure was valid under United States v. Lira-Barraza, 941 F.2d 745 (9th Cir. 1991). Section 4A1.3 furnished a "legal authority to depart." Id. at 746. There was no "clear error [in the] factual findings supporting the existence of the ... circumstance [s]" supporting the departure--defendant's record was replete with past crimes not reflected in his criminal history score. Id. at 746-47. And the district court did not abuse its discretion in adjusting the criminal history category from II to III, a departure which added 3 months to what would have been a 21 month sentence. Id. at 747-51.

Finally, defendant adduced no evidence supporting his contention that the district court erred in finding he intended to defraud the bankruptcy estate. Herriford transferred, without payment, land worth at least $50,000 to Cindy Allen, who afterwards called the United States Trustee and admitted that the transfer was a sham. An inevitable conclusion that Herriford intended to defraud arises, and he has done nothing to dispel it.

AFFIRMED.