905 F.2d 251 (9th Cir. 1990), 88-3240, United States v. Martinez

Docket Nº:88-3240.
Citation:905 F.2d 251
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Clyde Frank MARTINEZ, Defendant-Appellant.
Case Date:May 25, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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905 F.2d 251 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Clyde Frank MARTINEZ, Defendant-Appellant.

No. 88-3240.

United States Court of Appeals, Ninth Circuit

May 25, 1990

Argued and Submitted June 8, 1989.

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Stephen R. Sady, and Paul S. Petterson, Assistant Federal Public Defenders, Portland, Oregon, for the defendant-appellant.

Michael W. Mosman, Assistant United States Attorney, Portland, Oregon, for the plaintiff-appellee.

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

Before BROWNING, WALLACE and FLETCHER, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

Defendant-appellant Clyde Martinez appeals from his sentence following his conviction for unarmed bank robbery.

I.

Martinez pled guilty to an indictment for unarmed bank robbery in violation of 18 U.S.C. Sec. 2113(a). A probation officer's presentence report submitted pursuant to the Sentencing Guidelines determined Martinez's total offense level to be 17. The report then calculated Martinez's criminal history, adding one point for each of four prior convictions, including a conviction for public indecency. The report added two more points because Martinez was on probation from the indecency conviction when he committed the robbery, for a total criminal history score of six, placing defendant in criminal history category III. A total offense score of 17, coupled with a category III history, resulted in a sentencing range of 30-37 months. See United States Sentencing Commission, Guidelines Manual (U.S.S.G.) ch. 5, Part A, Table (Oct.1987).

The district court granted Martinez's request for a downward departure due to mitigating circumstances, reducing his incarceration from 30 to 27 months, but denied Martinez's objections to the report in other respects. Martinez appealed.

The district court exercised jurisdiction under 18 U.S.C. Sec. 3231. We have jurisdiction over this timely appeal under 28 U.S.C. Sec. 1291.

II.

Martinez argues the district court erred in including his prior conviction for public indecency as part of his criminal history.

The inclusion or exclusion of prior offenses from a defendant's criminal history is governed by U.S.S.G. Sec. 4A1.2(c). All felony sentences are to be included. Sentences for misdemeanors and petty offenses

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are also to be included subject to two provisions.

The first provision, found in subsection (1), is that prior sentences for certain listed offenses are to be included only if the sentences imposed exceed a specified limit, or if the prior offense was similar to that for which the sentence under appeal was being imposed. This provision offers no relief to Martinez because his sentence for public indecency was not less than that specified in subsection (1), and public indecency is not similar to bank robbery.

Martinez argues the second provision does apply. This provision, found in subsection (2) of U.S.S.G. Sec. 4A1.2(c), provides that sentences for certain listed prior offenses--hitchhiking, juvenile status offenses and truancy, loitering, minor traffic infractions, public intoxication, and vagrancy--"and offenses similar to them, by whatever name they are known, are never counted." Public indecency is not among the listed offenses. The question is whether it is "similar to them."

The parties assume we are to look to the law of the particular jurisdiction which convicted defendant of a prior offense to determine whether, under local law, the offense is treated as analogous to any of the offenses excluded by U.S.S.G. Sec. 4A1.2(c)(2). We reject this approach as inconsistent with the primary purpose of the Sentencing Reform Act of 1984 to "provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records." 28 U.S.C. Sec. 991(b)(1)(B); see Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 651, 102 L.Ed.2d 714 (1989).

It is apparent the offenses listed in U.S.S.G. Sec. 4A1.2(c)(2) are excluded from the defendant's criminal history because they are of such minor significance to the goals of sentencing, see 18 U.S.C. Sec. 3553(a)(2), that inclusion would more likely distort than improve the process established by the guidelines for determining an appropriate sentence. The listed offenses offer no basis for predicting future significant criminal activity by the defendant; 1 the conduct they involve is not uniformly criminalized, and when it is, the penalty is usually light. 2 Consideration of convictions for such conduct in determining sentences would be inimical to the realization of the goal of uniformity in sentencing since the sentence calculation under the guidelines would vary with the jurisdiction in which a person who engaged in such conduct resided.

The offense punishable under Oregon law as public indecency 3 is an offense of a different order. It falls within the category of offenses prohibited by MPC

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Sec. 251.1 as "Open Lewdness." 4 As Comment 2 to MPC Sec. 251.1 points out, this category of penal provisions "reaches the open flouting of community standards regarding sexual and related matters."...

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