Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-90-1018-JET. Jack E. Tanner, District Judge, Presiding. Original Opinion Previously Reported at:,. Amended Opinion Previously Reported at:,.
Before: James R. Browning, William A. Norris, and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Judge O'Scannlain.
Order AND AMENDED OPINION
O'SCANNLAIN, Circuit Judge:
We must decide whether the district court based its upward departure from the Sentencing Guidelines on proper factors and explained adequately the extent of its departure.
On November 21, 1988, Samuel Donaghe was sentenced for making a false statement in a passport application in violation of 18 U.S.C. § 1542. The district court did not apply the Sentencing Guidelines, because it was unclear at that time whether they were constitutional, and sentenced him to three years of probation. Because Donaghe had a history of sexually assaulting minors - he had been convicted of four such offenses previously - the court imposed the condition, among others, that Donaghe not associate with minors without the consent of the Probation Office.
On March 8, 1990, the district court revoked Donaghe's probation pursuant to 18 U.S.C. § 3563 because he had violated conditions of probation. Specifically, Donaghe had possessed a firearm, failed to inform the Probation Office of his new employment, associated with a minor foreign exchange student for whom he was the host parent, and been convicted in state court of solicitation to commit assault and two counts of rape. The district court then sentenced Donaghe to five years imprisonment for the passport offense, again under pre-Guidelines law.
On appeal, this court vacated the sentence and held that the Guidelines applied. We remanded for resentencing, specifying that the district court consider United States v. White, 925 F.2d 284 (9th Cir. 1991). United States v. Donaghe, No. 92-30183, (9th Cir. Sept. 15, 1992). At resentencing on January 22, 1993, the district court adopted the Presentence Report ("PSR") that calculated Donaghe's criminal history category as 1, his total offense level as 4, and the resulting sentencing range as 0-6 months. The court also adopted the PSR's recommendation to depart upward and imposed a sentence of five years imprisonment and three years supervised release.
When we remanded this case for resentencing under the Guidelines, we explicitly instructed the district court not to depart from the Guidelines based on Donaghe's conduct during probation. Instead, we stated that "if the district court chooses to depart it must cite factors, available to it at the original sentencing, sufficient to support its decision. It may consider Donaghe's probation-violating conduct for its effect on the weighing of those departure factors." Donaghe, LEXIS 29342, at * 3.
We relied on White to reach this Conclusion. In that case, this court held that for resentencing under 18 U.S.C. § 3565,*fn1 the district court could not use probation conduct to "directly increase a sentence." White, 925 F.2d at 286. The court stated that the district court could depart from the Guidelines range, "provided that facts warranting departure were available at the initial sentencing." Id. at 287. However, the court also noted that "probation-violating conduct is not completely irrelevant to sentencing under § 3565(b)*fn2 . . . The sentencing court can consider the conduct in determining whether to depart from the initial guideline range. . . . In other words, the court cannot make additional factual findings to justify a departure, but can reconsider its original decision not to depart in light of the defendant's subsequent actions." Id.
The Guidelines provide two means of departing upward from a sentence range: adjusting the criminal history category when the Guidelines do not adequately reflect the seriousness of the offender's past conduct or the likelihood that he or she will commit other crimes, under U.S.S.G. § 4A.1.3, p.s., and adjusting the offense level to take into consideration aggravating circumstances to a kind or a degree not considered by the Guidelines, according to U.S.S.G. § 5K2.0, p.s.
In evaluating these adjustments, the reviewing court does "not search the record for permissible reasons for departure; instead, [it] analyzes the reasons actually given by the district court." United States v. Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir. 1990). Here, the district court, for the most part, relied on the PSR to articulate the reasons for departure. The PSR listed three factors that "were known to the Court at the time of the original sentence and would have justified an upward departure." First, Donaghe had been convicted between 1967 and 1973 of several sex-related crimes involving minors. Second, at the time of the original sentencing, he was being investigated for sexual misconduct with his nephew. Finally, a 1968 psychiatric evaluation diagnosed Donaghe as having a "sexual deviation, homosexuality with pedophilia." For the upward departure to be valid, all these factors must be proper bases for departure. Id. (If the district court "considered both proper and improper bases for departure, 'we have no way to determine whether any portion of the sentence was based upon consideration of the improper factors,' and must therefore vacate the sentence and remand for resentencing") (citation omitted).
As a basis for its departure, the district court relied on its determination that Donaghe's criminal history category inadequately reflected his past criminal conduct. The Guidelines do not allow past sentences of imprisonment exceeding one year and one month and occurring more than fifteen years before the sentencing date to be considered in determining a criminal history category. U.S.S.G. § 4A1.2(e)(1), (3). The Guidelines do not allow any other past sentences occurring more than ten years before the sentencing date to be considered in determining a criminal history category. U.S.S.G. § 4A1.2(d)(2), (3). Donaghe's misconduct occurred fifteen years prior to the initial sentencing.
However, the commentary to section 4A1.2 creates an exception for sentences imposed outside these time periods where the court finds "evidence of similar, or serious dissimilar, criminal conduct." U.S.S.G. § 4A1.2, comment. (n.8). If the misconduct meets this description, "the court may consider this information in determining whether an upward departure is warranted." Id.
Donaghe argues that his convictions for child molestation are not similar to the instant offense of falsifying a passport application. The government has the burden of demonstrating that such similarity exists. United States v. Starr, 971 F.2d 357, 362 (9th Cir. 1992). The government argues that the crimes are similar because Donaghe was motivated to falsify the passport application in order to escape an investigation ...