Appeal from the United States District Court for the Central District of California; Harry L. Hupp, District Judge, Presiding; D.C. No. CR 89-0012-HLH-1.
D.w. Nelson and Reinhardt, Circuit Judges, and Tanner, District Judge.*fn**
Appellant Wayne Veldon Ault pleaded guilty to one count of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). He was classified as a career offender under the Federal Sentencing Guidelines. U.S.S.G. § 4B1.1 (Nov. 1989).*fn1 The basis for treating Ault as a career offender was the determination that he had been convicted of robbery in 1970 and 1971. This determination was based upon the Long Beach Superior Court, Los Angeles Superior Court and California Department of Corrections records, which, according to the probation officer who prepared the probation report, showed the following facts: Ault was convicted of second degree robbery on April 30, 1970, and was sentenced to one year imprisonment to be followed by three years of supervised release; Ault was released from custody in January, 1971; on July 16, 1971, Ault was convicted of first degree robbery and sentenced to six months to life in prison; because of his conviction for first degree robbery, on that same day, July 16, 1971, the same court that imposed his sentence for first degree robbery revoked Ault's probation for the 1970 second degree conviction and sentenced Ault to an additional term of six months to life to be served concurrently with the sentence for the 1971 robbery conviction. The probation officer further found that Ault was: discharged on the 1970 robbery on January 30, 1976; paroled on the 1971 robbery on March 18, 1976; and discharged on the 1971 robbery on November 22, 1987. The district court accepted the findings of the probation report.
The district court found that the Guideline imprisonment range was 210 to 262 months. Because the court believed that the career offender classification overstated the seriousness of Ault's criminal history, it departed downward and sentenced him to 102 months imprisonment. Ault appeals his sentence. We address his arguments in turn.
Ault committed the instant offense during the five-month period between our decision holding the Guidelines unconstitutional, see Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), vacated sub nom. United States v. Chavez-Sanchez, 109 S. Ct. 859 (1989), and the Supreme Court's decision effectively overruling Gubiensio-Ortiz. See Mistretta v. United States, 488 U.S. 361 (1989). Ault entered his guilty plea after Mistretta was decided. He argues that "retroactive" application of the Guidelines to his offense violates the Constitution's prohibition on ex post facto laws, U.S. Const. art. I, § 9, cl. 3, as well as the due process clause of the fifth amendment. We rejected this very argument in United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1052-53 (9th Cir. 1990). Accordingly, the Guidelines may lawfully be applied to Ault.
Ault next argues that his sentence was "arbitrary" in violation of the due process clause of the fifth amendment because the process by which it was calculated accorded too much weight to his prior convictions for conduct which occurred, respectively, 17 and 18 years before the instant offense. He does not argue that the Guidelines fail to consider the remoteness in time of past offenses. They do consider remoteness. U.S.S.G. § 4A1.2(e). Ault argues that the Guidelines do not give sufficient weight to the remoteness in time of past offenses. This argument is precluded by United States v. Brady, 895 F.2d 538, 543 (9th Cir. 1990), where we held that due process does not guarantee a defendant the right to have various sentencing factors be given particular weights.
The district court found that Ault was discharged on the 1970 robbery conviction on January 30, 1976. Ault argues on appeal, as he did below, that the Department of Corrections record upon which this finding was based is unreliable.
The record upon which the district court relied is captioned "Cumulative Case Summary." It consists of a single page out of a four-page document titled "Summary of Sentence Data." As a threshold matter, Ault contends that the district judge was not entitled to rely on the Cumulative Case Summary because it is unreliable. In support of this theory, he points out that it contains only one notation of Ault's 1970 robbery discharge, this notation is in pencil, and the document was neither signed nor certified. He argues that anyone could have made the entry.
Under the Guidelines, evidence used in determining a defendant's sentence must be reliable. United States v. Wilson, 900 F.2d 1350, 1352 (9th Cir. 1990). The commentary to sentencing guideline § 6A1.3 provides: "In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. Any information may be considered, so long as it has 'sufficient indicia of reliability to support its probable accuracy.'" (citation omitted).
The Cumulative Case Summary more than meets the test of "probable accuracy." It is a public record that would be admissible at trial pursuant to Rule 803(8) of the Federal Rules of Evidence. See Fed. R. Evid. 803(8) & accompanying advisory note. Ault has introduced no evidence which would call the Cumulative Case Summary into question, nor has he suggested a motive for the Department of Corrections to write an incorrect entry. Furthermore, the entry bears its own indicia of reliability. For example, it designates the proper case number for the 1970 conviction. Accordingly, we find that the district court did not err in relying on the Cumulative Case Summary.
Having determined that the district court properly considered the Cumulative Case Summary, we must now consider whether the court's finding based on that document is clearly erroneous. See United States v. Wills, 881 F.2d 823, 827 (9th Cir. 1989). The district court was required to apply a preponderance of the evidence standard ...