41 F.3d 531 (9th Cir. 1994), 93-30201, United States v. Myers

Docket Nº:93-30201.
Citation:41 F.3d 531
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Becky Ann MYERS, Defendant-Appellant.
Case Date:December 01, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 531

41 F.3d 531 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Becky Ann MYERS, Defendant-Appellant.

No. 93-30201.

United States Court of Appeals, Ninth Circuit

December 1, 1994

        Argued and Submitted May 6, 1994.

Page 532

        Nancy Bergeson, Asst. Federal Public Defender, Eugene, OR, for defendant-appellant.

        Frank R. Papagni, Asst. U.S. Atty., Eugene, OR, for plaintiff-appellee.

        Appeal from the United States District Court for the District of Oregon.

        Before: ALARCON, NORRIS, and LEAVY, Circuit Judges.

        LEAVY, Circuit Judge:

        In this appeal we are called upon to determine whether a district court may consider a defendant's post-offense conduct as a ground for departing upward in imposing sentence under section 4A1.3 of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). For the reasons which follow, we hold that the district court in the instant case did not err by taking such conduct into consideration at sentencing.

        FACTS AND PRIOR PROCEEDINGS

        Between November 1990 and July 1992, Becky Ann Myers fraudulently obtained more than $144,000 from Donald and Evelyn Marshall and members of the Marshall family. The FBI arrested Myers in August 1992 on a charge of wire fraud, and Myers was later released on her own recognizance to a halfway house. In November 1992 a federal grand jury handed down a two-count indictment charging Myers with having committed mail and wire fraud in violation of 18 U.S.C. Secs. 1341 and 1343. Myers, still on release, entered a plea of not guilty to both counts. Myers was subsequently discharged from the halfway house but continued on release pending trial.

        Pursuant to the terms of a plea agreement, Myers entered a change of plea in February 1993 in which she admitted her guilt on both counts of the indictment. The district court continued Myers' release pending sentencing. The following month, and while still awaiting sentencing, Myers was rearrested on a charge of having obtained another $1,690 by wire fraud.

Page 533

        At the sentencing hearing on May 10, 1993, the district court heard evidence concerning Myers' post-offense act of wire fraud. The court then rejected Myers' contention that her post-offense conduct could not be used as a basis for an upward departure under U.S.S.G. Sec. 4A1.3 and sentenced Myers to thirty-seven months imprisonment, to be followed by three years of supervised release and the payment of partial restitution to the Marshalls. Myers has timely appealed, challenging (1) the district court's upward departure based on post-offense conduct; (2) the amount of restitution ordered; and (3) the calculation of her criminal history category, based on (a) the inclusion of two allegedly constitutionally infirm convictions, and (b) the finding that she was on probation at the time she committed the charged offense. We have jurisdiction under 18 U.S.C. Sec. 3742(a)(2) and 28 U.S.C. Sec. 1291, and we affirm all but the restitution order.

        DISCUSSION

Upward Departure for Post-Offense Conduct

        Myers' first and principal argument on appeal is that the district...

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