United States of America, Plaintiff-appellee, v. Greg Scott Nelson, Defendant-appellant, 116 F.3d 1487 (9th Cir. 1997)

MEMORANDUM^* 

The district court based its upward departure on its finding that Nelson had committed numerous prior similar offenses and that there was an increased likelihood that Nelson would commit a similar offense yet again. These bases of departure are permissible and not an abuse of discretion. See United States v. Chavez-Botello, 905 F.2d 279, 281 (9th Cir. 1990). See also United States v. Segura-Del Real, 83 F.3d 275, 278 (9th Cir.) (holding defendant's history of repetitive immigration violations "demonstrated a total lack of recognition of the gravity of such offenses" and warranted upward departure), cert. denied, 117 S. Ct. 328 (1996).

Nelson admits that the letter of the plea agreement was not violated, but argues that the "spirit" of the plea agreement has been violated. We disagree.

The plea agreement provided that the criminal history category "could change based upon the investigation by the [probation office] and the findings of the District Court at the time of sentencing," and that Nelson was "aware that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for the offenses to which he has pled guilty." The district court departed upward based on its finding that Nelson had committed numerous prior similar offenses and that there was an increased likelihood that Nelson would commit a similar offense again. This basis of departure is permissible, see Chavez-Botello, 905 F.2d at 281, and did not violate the "spirit" of the plea agreement.

Nelson's reliance on United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990), is misplaced. In Castro-Cervantes, we held that a sentencing court "should not accept a plea bargain and then later count dismissed charges in calculating the defendant's sentence." Id. at 1082. In the present case, the district court did not consider dismissed charges in calculating Nelson's sentence.

AFFIRMED.