Opinion
Argued and Submitted June 7, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in the United States District Court for the Central District of California, Manuel L. Real, J., of obstruction of justice. Defendant appealed. The Court of Appeals held that: (1) upward sentencing departure was warranted on basis that defendant's letters contained material falsehoods, but (2) upward departure was not warranted on basis that criminal history calculation in presentence report understated defendant's criminal history.
Affirmed in part, vacated in part, and remanded for resentencing.
Page 833.
Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding.
Before KOZINSKI and THOMAS, Circuit Judges, and WHYTE, District Judge.
The Honorable Ronald M. Whyte, United States District Judge for the Northern District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
The district court did not abuse its discretion in adjusting Schweitzer's sentence upward for obstruction of justice because the letters Schweitzer presented to the district court for sentencing purposes contained material falsehoods. See U.S. Sentencing Guidelines Manual § 3C1.1, cmt. n. 4(f) (2000). The falsehoods were not the result of any confusion, mistake or faulty memory, United States v. Monzon-Valenzuela, 186 F.3d 1181, 1183 (9th Cir.1999) (quoting United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)), but rather were willful and material. United States v. Cooper, 173 F.3d 1192, 1205 (9th Cir.1999).
However, the district court did abuse its discretion in departing upward by increasing Schweitzer's offense level by two points on the stated basis that the criminal history calculation in the Pre-Sentence Report under-represented Schweitzer's criminal history. See U.S. Sentencing Guidelines Manual § 4A1.3. The district court improperly increased Schweitzer's offense level, instead of increasing his criminal history category, see United States v. Connelly, 156 F.3d 978, 983 (9th Cir.1998), and failed to refer to specific instances of past criminal conduct justifying any increase. United States v. Green, 105 F.3d 1321, 1322 (9th Cir.1997) (sentencing court's rationale to depart must be "sufficiently specific ... to allow appellate review").
AFFIRMED IN PART, VACATED IN PART AND REMANDED FOR RE-SENTENCING.