921 F. 2d 281 - United States v. Hilton

MEMORANDUM*

Donald Scott Hilton received a sentence of 37 months in prison after pleading guilty to breaking into a post office and obstruction of mail. The sentencing judge applied a one-level enhancement pursuant to Sec. 2B2.2(b)(3) of the United States Sentencing Guidelines (U.S.S.G. or Guidelines) because obtaining a controlled substance was an object of the offense. She also revised Hilton's criminal history category upward from category IV to category VI to take account of his prior criminal activity. Hilton appeals his sentence. We affirm.

Hilton argues Section 2B2.2(b)(3) of the Guidelines was intended to protect certain classes of victims such as pharmacies and hospitals. However, nothing in the language or commentary of the Guideline would so indicate. Indeed, the parallel section of the Guidelines referring to burglary of residences, Sec. 2B2.1(b)(3), indicates a contrary intent.

Hilton next argues the district court improperly departed from the Guidelines. We review departures to determine whether a departure is permissible on the grounds stated, and whether the sentence imposed is reasonable. United States v. Ward, 914 F.2d 1340, 1347 (9th Cir.1990). Hilton argues the departure is impermissible because the Guideline adequately took into account his criminal history by assigning him eight points, placing him in criminal history category IV. However, Guidelines Sec. 4A1.3 explicitly authorizes a departure where 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. Guidelines Sec. 4A1.3 (1990); see also United States v. Gayou, 901 F.2d 746, 748 (9th Cir.1990). The court may rely on:

(a) prior sentence(s) not used in computing the criminal history category ...;

(b) prior sentence(s) of substantially more than one year imposed as a result of independent crimes committed on different occasions;

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(e) prior similar adult criminal conduct not resulting in a criminal conviction.

Adequacy of Criminal History Category, U.S.S.G. Sec. 4A1.3, policy statement (1990).

Here the criminal history computation did not include three prior burglaries and one prior arson to which Hilton confessed, which would have added 4 points to his criminal history scale. The computation also did not include one of two armed robberies for which Hilton was fortuitously sentenced at one time, which would have added another three points. The district judge also considered Hilton's admitted propensity for recidivism and two parole violations unaccounted for in his criminal history.

Hilton argues the unadjudicated burglaries and arson should not be counted because Hilton's confession of these offenses is unreliable and uncorroborated. But police reports corroborated Hilton's own account. While arrest records alone may not form the basis for a departure, United States v. Cota-Guerrero, 907 F.2d 87, 90 (9th Cir.1990), these records combined with Hilton's confession are enough to support the sentencing judge's findings.

Inclusion of the armed robbery, arson, three burglaries and parole violations added seven points to Hilton's criminal history score, placing him in criminal history category VI. His 37-month sentence is within the Guidelines for that category, and is not unreasonable.

AFFIRMED.