U.S. v. Starr

• Decision Date: 29 July 1992
• Docket Number: No. 91-10215,91-10215
• Citation: 971 F.2d 357
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Alan STARR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 357

971 F.2d 357

UNITED STATES of America, Plaintiff-Appellee, v. Robert Alan STARR, Defendant-Appellant.

No. 91-10215.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 15, 1992.

Decided July 29, 1992.

Candace A. Fry, Sacramento, Cal., for defendant-appellant Robert Alan Starr.

Thomas E. Flynn, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee U.S.

Appeal from the United States District Court for the Eastern District of California.

Before: FLETCHER, POOLE, and BRUNETTI, Circuit Judges.

POOLE, Circuit Judge:

Defendant Robert Alan Starr was sentenced to eighty-seven months in federal prison under the Sentencing Guidelines upon conviction on three counts of bank robbery. Starr appeals his sentence, arguing that the district court (1) improperly relied upon an unadjudicated probation violation as a basis for upward departure; (2) failed to provide adequate notice that it would also base the upward departure on two prior convictions not considered in the calculation of his criminal history score; (3) failed to consider the similarity of these "remote" offenses to the bank robberies that are the subject of this case; and (4) departed to an unreasonable extent because the analogy the court drew between Starr's actual criminal record and Guidelines criminal history category IV was inaccurate. We have jurisdiction pursuant to 18 U.S.C. § 3742, and we affirm.

I

Between January and March of 1988 defendant Robert Alan Starr committed ten bank robberies in California. He was indicted by a grand jury in the Eastern District of California for seven of the robberies on April 15, 1988. Shortly thereafter, Starr consented to the filing of an information charging him with the three others, which occurred in the Northern and Central Districts of California. On June 9, 1988, Starr pled guilty to the first three counts of the indictment and to all three counts in the information. The plea agreement obligated the government to dismiss the remaining four counts of the indictment and to abstain from prosecuting Starr for an additional six robberies committed in the Northern and Central Districts of California. The government also agreed not to recommend an upward departure at sentencing.

On September 11, 1988, the district court sentenced Starr under the law in effect prior to the effective date of the Sentencing Guidelines to three concurrent twenty-year prison terms. After the Supreme Court upheld the Sentencing Guidelines a few months later, ¹ Starr asked the district court to resentence him under the Guidelines. The court granted Starr's motion and ordered an updated presentence report (PSR). The probation office calculated Starr's total adjusted combined offense level to be 23 and indicated that Starr should be assessed three criminal history points. This recommendation was based upon (1) a 1986 Florida conviction for possession of a controlled substance, for which Starr received a two-day jail term and one year of probation; and (2) a warrant for Starr's arrest for violation of probation, issued by Florida authorities and outstanding at the time Starr committed the California bank robberies. The three criminal history points resulted in a calculated criminal history category of II. The combination of Starr's total offense level of 23 and criminal history category II resulted in a sentencing range of 51-63 months.

The probation office recommended an upward departure to 113 months because it believed Starr's criminal history score did not accurately reflect the extent of Starr's prior illegal behavior. After we held shortly thereafter in United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir.1990), that counts dismissed under a plea bargain could not be used to justify an upward departure, the probation office prepared a supplement to the PSR recommending a smaller upward departure to 87 months. The basis for this recommended departure was (1) the unadjudicated Florida probation violation pending against Starr at the time of his first sentencing for the bank robberies; and (2) two pending California counts charging Starr with embezzlement and armed robbery. The probation office concluded that these factors rendered Starr's actual criminal history more like a defendant in criminal history category IV than one in category II.

The district court held a sentencing hearing on April 18, 1991. The court stated that it would not consider the armed robbery alleged to have been perpetrated by Starr and invited Starr's counsel to comment on the sentence Starr should receive. Counsel argued against an upward departure on the sole basis of the embezzlement charge and hypothesized that Starr's conviction on that charge would have resulted in two additional criminal history points and a Guideline range of 57-71 months when combined with the adjusted offense level of 23. Counsel urged the court to sentence Starr to a term of 63 months, which falls in the middle of that range and at the top of the range associated with criminal history category II. The government concurred in these recommendations.

The court sentenced Starr to 87 months in federal custody, imposed a subsequent three-year term of supervised release, and ordered restitution of $2,585 and a special assessment of $300. The court supported its sentencing decision with the following findings:

The court finds that the criminal history category in this case ... does not adequately reflect the seriousness of the defendant's criminal conduct or the likelihood of commission of other crimes.

His history of criminal conduct ... is more similar to defendants in a criminal history category four.

[T]he preponderance of the evidence before this Court shows that he committed other crimes which have not been adjudicated which would likely result in at least two additional convictions, one of which would result in a sentence of more than 60 days confinement. The confinement range for defendants with an offense level of 23 ... and a criminal history category of four would be ... 70-87 months.

....

[The court] bases this finding on two previous convictions not counted in computing the criminal history category, both of which are crimes of theft.

In addition, the court is considering offenses listed in the [PSR] under pending charges. The court finds reliable evidence that the defendant violated probation[, as] alleged by authorities in Fort Pierce, Florida, and committed an embezzlement ... in Santa Cruz, California.

It does not take into consideration ... the alleged armed robbery in Hawthorne, California, because it believes that the available evidence with respect to that is not sufficient to connect this defendant.

Starr filed his timely notice of appeal on April 25, 1991.

II

Starr argues that the district court (1) improperly relied upon the unadjudicated Florida probation violation in departing upward since such reliance constituted forbidden "double counting"; (2) failed to consider the factual similarity of the bank robberies to the prior offenses used to justify upward departure; (3) failed to provide adequate notice of its intention to depart upward; and (4) departed to an unreasonable extent as a result of an erroneous analogy of his actual criminal history to a category IV defendant rather than a category III defendant.

A. Standard of Review

In reviewing a sentencing court's decision to depart under the Guidelines, we employ a three-stage standard of review. First, we review de novo whether the sentencing court correctly relied upon aggravating factors not adequately taken into account by the Sentencing Guidelines. Second, we review for clear error any factual findings supporting the existence of any circumstance relied upon by the sentencing court to justify departure. Finally, we examine for an abuse of discretion the extent of the upward departure. United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en banc).

B. Reliance upon the Florida Probation Violation

One reason given by the sentencing court for its decision to depart was Starr's Florida probation violation. Starr argues that the outstanding warrant issued by Florida authorities for violation of probation was already considered when the sentencing court calculated his criminal history. See U.S.S.G. § 4A1.1(d) (authorizing addition of points if defendant committed offense at issue while on probation). We hold that no impermissible double-counting took place.

U.S.S.G. § 4A1.3(d) provides:

If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range. Such information may include, but is not limited to, information concerning ... whether the defendant was pending trial or sentencing on another charge at the time of the instant offense.

A sentencing court may not base a decision to depart on a factor already taken into account by the Guidelines. United States v. Faulkner, 952 F.2d 1066, 1073 (9th Cir.1991); United States v. Nuno-Para, 877 F.2d 1409, 1413-14 (9th Cir.1989).

The government argues that no double-counting occurred here because inclusion of Starr's probation status in the calculation of his criminal history score measures recidivism and does not require that the defendant have been in violation. We have not previously faced the government's argument under similar factual circumstances. However, our cases indicate that the general approach advocated by the United States is correct. For example, in United States v. Schomburg, 929 F.2d 505 (9th Cir.1991), the defendant was sentenced for failure to appear for sentencing after conviction on charges of establishing a drug manufacturing operation. The drug conviction was used to calculate the defendant's criminal history score. In addition, the...