928 F. 2d 1137 - United States v. Aguilar

MEMORANDUM**

Javier Aguilar appeals his sentence imposed under the United States Sentencing Guidelines ("Guidelines"), following a guilty plea to armed bank robbery, in violation of 18 U.S.C. Sec. 2113(a) and (d). Aguilar argues that the district court erred by imposing a two level enhancement for robbery of a financial institution and that the Guidelines' process for calculating the criminal history category is flawed because it punishes him more than once for the same conduct. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm the sentence.

Generally, this court reviews de novo the district court's application of the Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir.1990). The government contends that Aguilar waived his right to challenge the base offense level because he failed to raise his objection before the district court. See United States v. Visman, 919 F.2d 1390, 1394 (9th Cir.1990). Because Aguilar's argument involves a question of law, we may review his contention on appeal for plain error. See United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S.Ct. 179 (1989).1

Aguilar contends that U.S.S.G. Sec. 2B3.1(b)(1) improperly allows the district court to use an element of the offense of conviction as a basis for enhancement. Aguilar's contention is based on his mistaken reading of U.S.S.G. Sec. 2B3.1(a). He states, "the base level for the offense of Bank Robbery under ... 2B31.1(a) [sic] is 20. To additionally enhance the sentence under ... 2B3.1(b) the financial institution element, shows that the Sentencing Commission failed to adequately consider this issue." Appellant's Brief at 12.

Contrary to Aguilar's assertion, the base offense level for robbery alone is 20. U.S.S.G. Sec. 2B3.1(a). The base offense level is enhanced by two levels if the offense involves a financial institution. U.S.S.G. Sec. 2B3.1(b)(1). In effect, the base offense level for robbery of a financial institution, such as a bank, is 22. U.S.S.G. Sec. 2B3.1(b)(1). We agree with the Sentencing Commission's reasons for choosing to implement an automatic enhancement for robberies of this nature. See United States v. Smith, 905 F.2d 1296, 1301 (9th Cir.1990) (enhancement proper because banks generally have large amounts of cash readily available). Therefore, the two level enhancement did not punish Aguilar twice for bank robbery and the district court correctly applied the Guidelines. See id.

Next, Aguilar argues that adding points to his criminal history score under both U.S.S.G. Secs. 4A1.1(d) and (e) constituted double counting because the additions were based on the same set of facts.

The district court determines the defendant's criminal history category by counting points pursuant to U.S.S.G. Secs. 4A1.1 and 4A1.2. Points are assigned according to the defendant's prior convictions. Additionally, the district court must add points if the defendant committed the instant offense while "under any criminal justice sentence." U.S.S.G. Sec. 4A1.1(d). Similarly, points are added if the defendant committed the instant offense within two years after release from imprisonment. U.S.S.G. Sec. 4A1.1(e). The Sentencing Commission considered the possible overlap between subsection (d) and (e) and concluded that one point, rather than two, would be added under subsection (e) if two points were added under subsection (d). U.S.S.G. Sec. 4A1.1, comment. (n. 5). The Sentencing Commission's reasoning is not irrational and the criminal history point scheme is not duplicitous. See United States v. Wright, 891 F.2d 209, 211 (9th Cir.1989) (application of Secs. 4A1.1(d) and (e) not duplication of punishment).

Here, Aguilar committed the bank robbery while he was on probation to the Fresno County Superior Court. In addition, he committed the offense less than ten months after his release from imprisonment. Therefore, both subsections (d) and (e) were applicable and a total of three points were added to Aguilar's criminal history count. The district court applied the Guidelines correctly. See Wright, 891 F.2d at 211.

AFFIRMED.