*1 effects convinces us preemptive elusive and properly granted the district judgment for the defendants

summary common law the constitutional by deny- court did not err claims. The

tort complaint. amend his leave to Saul

AFFIRMED. America, STATES

UNITED

Plaintiff-Appellee, BRADY, Defendant-Appellant.

Leon 89-30074.

No. Appeals, Court of

Ninth Circuit. Dec. 1989.

Argued and Submitted March

Decided *2 Woodward, Mont., Billings, E.

Vernon defendant-appellant. Richter, Atty., P. Asst. Bill- Klaus Mont., ings, plaintiff-appellee. WALLACE, Judge, Before Chief NELSON, PREGERSON D.W. Judges. Circuit PREGERSON, Judge: Circuit Brady voluntary Leon was convicted danger- manslaughter and assault with a legality weapon. appeals ous He of his sentence, contending imper- its terms missibly depart Federal Sentenc- We conclude that the sen- Guidelines. incompatible imposed tence with therefore vacate the sen- Guidelines. We for further tence and remand this matter opinion. proceedings consistent with this

BACKGROUND Brady, an enrolled member Charles Tribe, Cheyenne Indian the Northern degree mur- July indicted in 1988 for first to commit mur- der and assault with intent other members on der of two Cheyenne Indian Reservation. Northern trial, Following jury convicted counts, charged but on the not on these voluntary man- lesser included offenses of dangerous “state mind” with commission slaughter and assault Finally, indicated that weapon. offenses. consecutively, should run February the U.S. Probation Of- concurrently, aggregating thus the maxi- required court the to the ficer submitted *3 year mum five sentence for assault with a report The calculated report. presentence dangerous weapon with maximum ten the 24 (including level the total offense year manslaughter. voluntary sentence for severity in offense be- two-level reduction Brady responsibility for the accepted cause Brady that contends under the Guide- offenses). report Brady’s also set The en- lines none of these bases for sentence “I.” category at history Under criminal permissible. argues hancement is He that calculations, applicable the sentenc- these accepted responsibility he crimes for the guideline range indicated sentence of ing convicted; for serious which he that to 63 months. problems in re- constitutional are involved minor, lying on uncounseled tribal convic- however, report, noted presentence The upward depart tions to from the Guide- upward departure range from this that an lines; unjustifi- sentence that the had been Brady’s the may be basis of ably firearm enhanced basis of the two court misdemean- convictions discharge; that the district erred in court report charges. suggested or assault departing upward finding Brady that that without consideration these tribal specific acted with the intent to kill both offenses, history Brady’s category criminal victims, despite jury the fact ac- that the adequately represent the serious- “does quitted Brady degree of first murder and past.” report of his criminal stat- ness murder; assault with intent to commit history category if the ed that were raised basis, run guideline the decision to the sentences con- range “II” on the months, secutively, concurrently, rather than violat- be 57 and if the cate- would to 71 “III,” the range procedure would ed mandated the Guide- gory were raised to lines. 63 to months. hearing, At the the district Brady ato total of 180

court sentenced DISCUSSION (15 years) imprisonment months for Disputed I. Notice of Elements increasing two offenses. sentence consider the sentenc- Before we beyond range well recommended properly court from the sen- deviated presentence report, challenged the court tencing range presen- recommended in the probation officer’s calculations and report, tence we first the issue of address departing upward cause for found notice of the factors consider First, judge did not Guidelines. believe deciding whether to from Brady accepted responsibility for re- Sentencing The Guidelines Guidelines. offenses, the committed and therefore de- quire “[wjhen any important factor reduction nied two-level the total reasonably determination is Second, judge level. felt that parties given dispute, the shall be category “I” history criminal did not ade- adequate opportunity present informa- Brady’s quately reflect the seriousness regarding tion the court that factor.” history tribal court Commission, into not taken account. convictions were Manual [hereinafter U.S.S.G.] Third, upward justification depar- for an 6A1.3(a), p.s. The further Guidelines, re- ture from the state that to the that a firearm had been ferred fact discharged disputed court shall resolve when the offenses were com- [t]he Rule Fourth, judge departed tencing factors accordance with mitted. 32(a)(1),Fed.R.Crim.P____, par- notify the on the defendant’s the Guidelines based sixty day suspended to a Brady in a Montana was sentenced 1. In was convicted driving $300 the influence. He and a fine. state under findings provide surprised by any ruling by its tentative the court ties of [on opportunity for the submis- sentencing].” a reasonable But in United States v. Raf- objections or written before Cir.1990), sion of oral ferty, 911 F.2d imposition of sentence. rejected the contention that the notice re- quirement apply if ground does 6A1.3(b),p.s.2 U.S.S.G. § departure should readily appar- have been presentence report stated to the defendant. ent Thus depar ground possible upward one have notified been before use of tribal court con ture —the (1) deny the court intended him the ac- to increase his criminal cat victions reduction,3 (2) ceptance responsibility he egory. Brady contends that was not depart from the Guidelines based on the *4 sentencing hearing of notified before the court’s determination of state of on the sen several other factors relied mind, (3) to enhance the sentence based on tencing the Guide court to discharge, (4) the firearm to run the that, Brady argues he was lines. consecutively rather than concur- factors, given they may notice of these not rently. Only acceptance responsibili- of beyond to enhance the sentence not be used ty disputed presents issue facts that should report. range presentence stated in the evidentiary at an hearing be resolved on agree. We v. Nuno- remand. The trial court will of course be (9th Cir.1989), Para, 877 F.2d 1409 we held rulings disputed legal bound our that the notice questions determining proper requirement is not satisfied the fact tence on remand. present that the relevant information is Rather, presentence report. within the Acceptance Responsibility II. of such either must be identi- information as a basis departure in the fied allow a two-level reduc- or, report, presentence the court must tion in the defendant’s total offense level if advise the that it is consider- clearly the “defendant demonstrates a rec- departure particular ing based a ognition acceptance per- and affirmative of op- allow defense counsel an factor responsibility his sonal criminal con- portunity to comment. 3El.l(a). duct.” U.S.S.G. This reduction (citations omitted) (emphasis

Id. at 1415 applies whether the convictionis based on a added). guilty plea following or on a verdict 3El.l(b). trial. In its commen- U.S.S.G. § government contends that no tary, the Commission lists several factors required Brady’s not tice should case deciding guide to had, par because “a full trial was and all accepted responsi- whether the defendant exactly positions ties knew what the bility her conduct. respective parties no for his or were.... There was comment, I).4 3E1.1, (n. way that the defendant claim to can be S.G. § 32(a)(1) 6A1.3(a) part: A 2. Fed.R.Crim.P. states in of the Guidelines. reject therefore the reduction sentencing hearing, At the the court shall af- presentence report without recommended ford the counsel for the defendant and the giving adequate and an the defendant notice attorney opportunity for the Government an opportunity present to information to the court. upon probation to comment officer’s de- relating termination and on other matters sentence. include, to, 4. These factors but are not limited following: adjustment responsibility 3. We note that the to, (a) voluntary "adjustment" or withdrawal is an rather than a termination reduction associations; from, “departure” conduct or the Guidelines from criminal such, (b) range. technically voluntary payment of restitution As the reduction does Nuno-Para, guilt; holding adjudication fall within the not requires (c) voluntary given admission to au- counsel be notice and truthful that defense opportunity in the offense and an to comment on all sentenc- thorities of involvement and ing "departures.” Nonetheless, conduct; defendant’s ac- related (d) voluntary ceptance responsibility important authorities surrender "factor offense; promptly after commission of the determination” under hearing on the ing proceedings, including a to fol sentencing court declined dispute issue. facts on this presentence low the recommendation ac given a two-level Brady be report III. Unnoticed Grounds Be responsibility reduction. ceptance of Departure Sentence responsibility re acceptance cause presentence included in permit duction was The Guidelines that this aggravating led to believe finds “an Brady when court report, kind, of a or to mitigating raised at circumstance not be issue would adequately taken into consider degree, denial of the trial hearing. The court’s level, ation Commission.” without in offense reduction two-level 3553(b). departure from the A deny the U.S.C. intent to Brady of its notice atypical only in an Guidelines is warranted adequate reduction, deprived case, i.e., con one in which a defendant’s to the present information opportunity “norm.” significantly differs from the duct responsibility. acceptance of his court on A(4)(b). depart U.S.S.G. Ch. Pt. When effec- position to review not in a We are Guidelines, the court must responsibility de- acceptance tively the imposition specified state “the reason for *5 us to defer to in this case. For termination from that described of a sentence different responsibility acceptance of a trial court’s particu in the with sufficient [Guidelines]” determination,5 record on this issue the appellate re larity permit meaningful “to court did not refer The trial must be clear. view” of the decision. United in the com- the factors outlined to of Wells, 878 F.2d States v. The record does not mentary to 3E1.1. curiam). Meaningful appel (per voluntarily Brady sur- us whether inform the court requires late review promptly after com- authorities rendered to in played factor the explain the role each offense, he offered the mission of Todd, departure decision. United States family before his to the Small restitution (9th Cir.1990)(remanding manslaughter, or most im- adjudication express court to its reasons “to the district voluntarily he and portantly, whether departure”). for the extent of the to authorities that he truthfully admitted case, the court In this and related in the offenses was involved month departed from the maximum 63 sen conduct.6 probation report in the tence referred to should have articu- The court totaling sentences consecutive justifications for de- lated its reasons and explained in months. The district court reduction, have nying (1) 3E1.1 had that the defendant general terms offenses, the sentenc- notified the defendant before his accepted responsibility for firearm, (3) findings, and ing hearing (2) discharged of these tentative had acted committing accept- hearing premeditation held a should have with convicted, (4) and he was responsibility issue. We vacate crimes for which ance of conviction record show responsibility had a acceptance denial of others. But the propensity to harm further sentenc- reduction and remand for great ie) entitled to deference voluntary is to authorities in the assistance comment, 3E1.1, (n.5). recovery on review." of the fruits and instrumentalities offense; disputed by point specifically is 6. This last (f) voluntary resignation from the office or Brady parties. court stated that of the position held the commission gave testimony or ac- as to his remorse never offense; and as- countability The defendant for the offense. (g) of the defendant’s conduct the timeliness timely statements of his he did make serts that responsibili- manifesting acceptance of during and in the conduct involvement ty- timely appar- were These statements after trial. probation ently accepted officer who "sentencing judge unique position in a to 5. A is reduction for ac- two-level responsibil allowed the 3E1.1 acceptance evaluate a defendant’s reason, responsibility. ceptance of ity. For this the determination of adjusted the combined extent each to indicate the court failed presentence increasing the sentence offense level calculated played factor report counting any adjustment the maximum almost 200% report. acceptance responsibility. probation Neither referred justi- party disputes figure. the reasons that the sen- needs to state Under table, 117 months.7 tencing guideline range fy enhancing the sentence indicated remand, we may recur on adjusted issues for an combined offense level of Because in turn each address 26 is 63-78 months for a criminal upward de- grounds “I,” court’s unnoticed category of 70-87 months for a crimi- parture.8 “II,” history category nal and 78-97 history category

months for a “III.” Concurrent A. Versus Consecutive

Sentences (c) (d) Subsections 5G1.2 deter- imposed mine whether the sentences are to consecu- The court sentenced consecutively concurrently. run for his two convic- tive maximum terms focus on the notion of “total subsections explain did not the deci- tions. The court commentary punishment,” defined sentences. The impose consecutive sion length the Guidelines as combined impose consecutive decision adjust- sentences as determined requirements. the Guidelines violates (c) ed combined offense level. Subsections de- specify procedures for The Guidelines (d) state: imposed in termining the sentences (c) imposed If the sentence on the count defendant has been con- cases in which the carrying highest statutory maximum *6 multiple counts. The Guidelines victed of adequate punish- is to achieve the total the specify whether sentences ment, then the on all counts First, concurrently consecutively. or run concurrently, except shall run to the ex- convicted a defendant has been whenever required by tent otherwise law. counts, adjusted multiple a “combined of (d) imposed If on the count the sentence Next, an ad- level” is calculated.9 carrying highest statutory maximum the made, any, if for the defen- justment is punishment, than the total then is less responsibility. The acceptance of dant’s imposed on one or more of the sentence is the “total offense resulting offense level consecutively, run the other counts shall Using offense level and level.” the total necessary pro- to the extent but history category, defendant’s criminal the equal to the duce a combined sentence range determined from the guideline the is respects punishment. total In all other range guideline table. Once all shall run concur- established, sentences on counts determines whether 5G1.2 concurrently rently, except to the extent otherwise run or the sentence should required by consecutively. law. (i.e., closely applicable guideline range If the counts are related involve is 51 7. harm”), responsibility acceptance "substantially of months with the the counts are same and 63 to 78 months without reduction acceptance "grouped” a combined under 3D1.2 before responsibility Fifteen of reduction. adjusted offense level is calculated. The enhancement therefore can be months of the argument against government brief limits its by the district court's denial of accounted for opposition concurrent in this case to responsibility acceptance reduction. "grouping” convictions. This two argument point. Brady does not misses a de novo standard of review

8. We assume grouped the two counts should be contend that determining upon the factors relied they substantially involve the same the Guide court to from Rather, not). (clearly they Brady's harm do permissible. United States v. Enri lines are quez-Munoz, argument appropriately on his entitle- focuses n. 4 Cir. under 5G1.2. ment to concurrent 1990). standard Even under a more deferential review, however, find the departures court’s unwarranted. 5G1.2(c)-(d). commentary degree preparation and planning and the U.S.S.G. § fol- requirements these as offenses.” The court cited elaborates 5K2.1 [the] lows: authority of the Guidelines as that “a sub- the counts will least one of Usually, at may increase be if the stantial adequate to statutory maximum have a risked,” knowingly death was intended or punishment of the total imposition permit 5K2.1, p.s., proceeded The sen- on that count. sentence as the kill the defendant’s intent discuss counts will each the other tence on stated: district court victims. the total at lesser of set then be case, In this defendant left the initial statutory applicable and the punishment hunting ri- confrontation and obtained maximum, to run concur- and made procuring fle from a relative. After am- longest part all or rently with munition, the defendant went search sentence. victims. His intent inflict seri- 5G1.2, comment. U.S.S.G. § injury or to kill the victims was ous dem- determi The concurrent-consecutive began shooting onstrated in he sen down this: consecutive boils nation them as soon he saw them. The de- imposed only if “no count tences are multiple fired shots at fendant both vic- adequate statutory maximum” carries hunting range. tims with a rifle at close by the prescribed to contain the Brady knowingly These events show level. Id. combined offense adjusted intended to kill both victims. highest statu count with the this maximum, voluntary manslaughter, tory finding contends that statutory maximum of 120 months. has directly jury’s contradicts verdict 1112. Under U.S.C. § acquitted degree him of first murder “I,” “II,” “HI,” and the sen categories assault with to commit intent murder. above, any sen tencing ranges referred to argues upward departure He that an range guideline will tence set within not be based on factu- necessarily fall within 120 month statu finding by al court that effec- district manslaughter. voluntary tory maximum tively verdict. jury’s overrules the *7 sentencing by court thus erred The a district Five other circuits allow court year tencing Brady to consecutive 10 and 5 findings during sentencing to make fact of months) (totaling 180 his con- on sentences rejected implicitly by that have been a voluntary manslaughter and victions for See, jury’s guilty e.g., not verdict. United deadly por- weapon.10 a assault with Rodriguez-Gonzalez, 899 F.2d v. States the sentence attributable to tion of — (2d denied, 177, Cir.), 179-82 cert. U.S. that the sentencing court’s determination —, 127, (1990); 111 112 L.Ed.2d 95 S.Ct. consecutively run is a 1444, Dawn, F.2d 897 United States v. and departure from the Guidelines drastic — (8th denied, Cir.), 1449-50 cert. sentence. 18 U.S.C. an unreasonable —, (1990); 389, 400 111 S.Ct. 112 L.Ed.2d 3742(f)(2). aside this We therefore set § Juarez-Ortega, v. States F.2d United portion remand for of the sentence and (5th Cir.1989); 748-49 United States sentencing. (3d Cir.1989); Ryan,

v. 866 F.2d B. The Reconsider- Court’s Mocciola, v. United States Mind State ation (1st Cir.1989). But of Defendant's 16-17 cf. Perez, v. sentencing upward that court stated (“This upheld has the trial court’s is warranted Guidelines mind, acquittal as long of a on the defendant’s state of consideration “based 5G1.2(a) a requires was mandates consec- that sentences convicted 10. Section consecutively 113(c) multiple imposed if counts U.S.C. and 18 utive sentence. See 18 requirement does statute. mandated This U.S.C. 1112. apply offenses for here. of the not Neither analysis unpersuasive. We find this upon relied to enhance acquittal is not sentence.”).11 pervert system justice We would our of- if punish allowed a defendant to suffer Ryan, (3d F.2d 604 charge ment for a criminal for which he or Ryan, jury Cir.1989), In is illustrative. acquitted. recog she was Guidelines possession of a acquitted the defendant voluntary manslaughter nize that is to be intent to distrib- with controlled substance punished severely less than murder set lesser ute, guilty him found but simple possession ting of a a lower base offense level for volun included offense The defendant ar- manslaughter substance. tary controlled than for murder. A in con- the district court erred gued “that sentencing court should not be allowed to drugs in de- sidering packaging of the statutory circumvent directive mak sentencing guidelines, parting ing finding any a of fact —under standard effect, that, maintaining he was sen- proof jury necessarily has re —that crime of which he had been tenced for a jected by judgment acquittal.12 its claiming guidelines acquitted, acknowledge general We Id. approach.” such an prohibit permit sentencing rejected the defendant’s The Third Circuit consider evidence factors that, It reasoned before the argument. that are not elements of the offense of Guidelines, permit- sentencing “court was conviction. See U.S.S.G. lB1.3(a). But it on counts of which ted to consider evidence permit does not follow that the Guidelines acquitted a defendant to reconsider a court facts sentenc- Id. at 609. The Third defendant.” rejected by jury’s that have been promulgating concluded Circuit Otherwise, guilty verdict. time a Guidelines, Sentencing Commission in- verdict, judge disagreed jury’s with the to con- permit courts tended judge could “reconsider” critical elements in deter- to consider such information tinue of the offense to avoid the restrictions of mining from the Guide- push the sentence to the lines. simply cases cited our decision limits the facts that a court 11. In two other dissent, Fonner, may rely imposing United States v. 920 F.2d 1330 sentence. The Sen on in Isom, (7th Cir.1990), and United States tencing Guidelines themselves draw the curtain (4th Cir.1989), the district court relied F.2d 736 See, e.g., on certain facts. facts, rejected by undisputed not on facts creed, sex, (race, origin, reli 5H1.10 national Fonner, jury’s the defen- verdict. gion, status "are not rele and socio-economic murder; previously acquitted been dant sentence”); U.S. vant in the determination of a victim, killing admitted but the defendant ("Drug dependence or S.G. 5H1.4 alcohol argued he acted in self-defense. More than abuse is not a reason for a sentence later, years the defendant was convicted of guidelines.”). . lim below the Our decisions also threatening mailing letters in violation *8 sentencing rely discretion to it a court’s court the U.S.C. 876. district increased See, e.g., Enriquez- United States v. other facts. he, had killed defendant’s sentence fore, be- Munoz, (greed of 906 F.2d 1356 that defendant but did not conclude the impermissible departure); for defendant is basis had committed murder. 920 F.2d at 1332. Alvarez-Cardenas, F.2d 734 United States v. affirmed, explaining that the Seventh Circuit (9th Cir.1990) improper (deportability of is basis killing is relevant to determine the fact of the Ceja-Hernandez, departure); United States v. threatening of the defendant’s let- seriousness (9th Cir.1990) (alienage status not Isom, 895 F.2d 544 acquitted Id. In the defendant was ters. basis); Doering, dealing proper counterfeiting, a United States v. but convicted of with of (9th Cir.1990) (need obligations. psychiatric He admitted all of the counterfeit F.2d 392 counterfeiting except his intent" to help justify departure); elements of does not (9th Cir.1990) (district at The district court Watt, defraud. 886 F.2d court 910 F.2d 587 2B5.1(b)(2) adjustment applied under the responsibility denying acceptance of erred in level based the defendant's base offense increase pre-plea adjustment by considering defendant’s operating print- the on the fact that he admitted evidence). self-incriminating provide refusal to Here, ing press. at 739. Id. category of facts that we define one more imposing be used a district court cannot sentence, nothing to do with the stan 12. Our decision has rejected by a i.e. facts that have been proof. involved with deter dard of mining We are not jury’s verdict. proof appropriate of that a the standard Rather, sentencing. apply court must district when based on a circumstance not punishing the defen- mitted effect maximum—in adequately he or had taken into consideration the which she offense for dant for an True, formulating the sentence is ulti- Commission the acquitted. been Guidelines, any portion upward de- statutory of mately by the maximum capped parture that is based on the firearm dis- for which the defendant was of departure an charge is thus unreasonable Yet the maximum convicted. applicable guideline range. formulated from the by the statutes were prescribed 3742(f)(2). eligible for We remand the deter- a defendant was U.S.C. in a time when portion serving or her mination of this of sentence one-third his parole after discharge is good noting There no such that the firearm has been less time. sentence by the adequately under considered Guidelines. early release the Guide- possibility of court lines. In this second de-

effectively Departure sentenced on the IV. Basis History and assault with intent gree murder Tribal Court the crimes commit murder —not theory Under the that defendant’s “[a] convicted, voluntary manslaughter he was past directly record of criminal conduct is dangerous weapon.13 awith and assault purposes relevant” to sentencing court’s de- Comprehensive We that the hold Criminal Control under intro, Act, A, comment., state mind termination Ch. Pt. U.S.S.G. is. which to impermissible computation factor on mandate a Guidelines points,” We remand this history leading from the Guidelines.14 a de- “criminal noting portion the sentence history catego- of a “criminal termination jury’s defendant’s ry.” range determination un- dispositive in the mind is sentenc- state of der the is determined from the ing hearing, and that the court using the to- table defendant’s may jury’s verdict history not circumvent tal offense level and criminal cate- on this departing gory. from Guidelines basis. A for a is conviction Discharge

C. Firearm not counted calculation of a defen- sentencing, history category. At the time of the court dant’s criminal U.S.S.G. If, however, 4A1.2(i). justified portion upward departure “reliable informa- a dis tion that the criminal cate- firearm been indicates basis gory adequately charged during the of the sec does not reflect the seri- commission count, deadly past weapon. of the defendant’s ond assault with ousness so, fact the likelihoodthat doing the court overlooked the conduct or crimes, will other computed adjusted offense level on commit discharge departing taken firearm a sentence this count had consider account, applicable guideline increasing into the offense level of from the otherwise 4A1.3, p.s. range.” five This increase The Guide- this count levels. departure may adequately accounts for the firearm dis lines note such concerning charge on information “tribal of- under Guidelines. Because based computing used in defen- only per- fenses” not *9 argued Brady court’s set offense level for 14. 13. The Guidelines the base (§ 2A1.2), degree approach contained flaws as well. murder at 33 and for constitutional second statutory degree intent second Because we decide this issue on assault' with to commit (§ 2A2.1). grounds, do 22 not reach constitutional murder at The "combined offense 99, Bernard, 89, 452 issues. Oil Co. v. U.S. level” for both as determined under offenses Gulf 2193, 2199, (1981); history category 68 L.Ed.2d 693 33. With a criminal 101 S.Ct. §. 3D1.4 is Bennett, Industries-EMI, "I,” sentencing range appropriate Capitol Inc. v. for that (9th denied, 1107, Cir.), 455 U.S. to 1112 n. cert. combined offense level is 135 (still 168 months 1438, 655, denied, 943, L.Ed.2d cert. of 180 102 S.Ct. below court's total sentence 1087, 570, months), category 103 S.Ct. L.Ed.2d 932 U.S. and for criminal offense "II,” (1982). 151 to 188 months. only when the tures are warranted criminal history category. U.S.S.G. criminal dant’s category “significantly history underrepre- 4A1.3(a), p.s. § of the sents the seriousness defendant’s do not have Though Indian tribes history criminal or the likelihood that the sovereignty, full attributes crimes,” will commit further 375, 381, 6 118 U.S. Kagama, v. in placing category thus the defendant (1886), 1109, 1112, tribes 30 L.Ed. S.Ct. history “significantly where his more their prescribe laws for power retain than that of most defendants in the serious of these punish infractions members and category.” history same criminal Wheeler, 435 U.S. v. laws. United States 4A1.3, p.s. 1079, 1085-87, 322-24, 313, 98 S.Ct. in this case does courts, (1978). Criminal tribal L.Ed.2d 303 Brady’s not refer to the seriousness of however, impose punishment may not convictions, their tribal but evidence year imprison one greater than or $5000 “propensity of the defendant of the both, ment, per offense. 25 U.S.C. or society.” harm others in But the five ex- 1302(7). convicted under tribal Persons amples possi- listed the Commission as by coun represented to be laws are entitled grounds for all make refer- ble provided proceedings sel at tribal “large-scale” previous ence to “serious” or representation them they pay for the offenses which have not been included in 1302(6). But there is selves. 25 U.S.C. § history the criminal calculation.16 Neither right of counsel tribal no absolute convictions, assault Brady’s Ant, 882 F.2d courts. United States days, represent sentences of less than 30 Cir.1989). 1391-92 do this level of seriousness. Nor these hand, defendant was In the case Brady’s tribal court convictionsmake crimi- misdemeanor assault and convicted of two history “significantly more serious” nal offenses, and in in a battery catego- than histories of other offenders Cheyenne Court. The of- Tribal Northern policy ry required by as the Guidelines “I” Cheyenne in the Code are described fenses Furthermore, statement for 4A1.3. Offenses, V, 2.15 Ch. of Indian Tribal Brady’s explain how two con- court did not allowed under the maximum sentence “propensity” in the defen- victions create a Brady months or $300. section was six crimes, given commit future dant to days or 25 sentences of $50 received past offenses. minor character of his conviction, days or 15 and $150 the 1979 conviction, the maxi- far below the 1983 Second, Brady’s convic both of already mum of minor offense. an pro in uncounseled tions were obtained at either represented by counsel requires ceedings. The Sixth Amendment proceeding. criminal defendant be indigent that “no imprisonment a term un upward departure sentenced to An right him the has afforded category on these less the State based criminal in his de appointed counsel justified for assistance tribal convictions is not two Illinois, 440 First, history depar fense.” Scott two reasons. (2) offenses, had received a willfully tences for serious "Any person strike anoth who shall bodily injury, years person or or otherwise inflict of ten for a er consolidated sentence violence, shall, by offering assaults, (3) cause another who in- had similar series of serious be deemed of assault harm himself shall large misconduct es- scale fraudulent stance of battery upon shall conviction thereof adjudication a Securities and tablished period not to exceed to labor for be sentenced proceeding, Exchange Commission enforcement exceed three and or a fine not to six months (4) offense while on bail committed the instant of Indian Of dollars.” Code Tribal hundred fenses, pretrial serious or release for another V, 2. The Code has been subse Ch. reasons, (5) cooperation such quently This is the statement revised. defendants, pre- prosecution of other *10 Brady was convicted. offense at the time extremely viously lenient sentence received an 4A1.3, p.s. for a serious "Examples might case of a defen- include the offense." 16. added). (1) foreign (emphasis previous dant who had several 854 (1979) 1162, imprisonment 1158, imposed 383 term of on the basis 59 L.Ed.2d

99 S.Ct. added). plu agree with (emphasis We of an uncounseled conviction where the de 222, Illinois, v. rality in Baldasar 446 U.S. fendant did waive counsel violates (1980), 1585, 64 L.Ed.2d 169 100 S.Ct. under Baldasar.17 Amendment Sixth in Scott rule enunciated the constitutional Any portion of the that is based sentence misde that an “uneounseled requires prior Brady’s convictions is an tribal collat [may] not be used meanor conviction unreasonable sentence under 18 U.S.C. of im impose an increased term erally to 3742(f)(2). simply are convictions subsequent conviction.” upon prisonment enough upward an not serious to warrant J., (Marshall, 226, 100 S.Ct. at 1587 Id. at category. grade in criminal 224, 1586 id. 100 S.Ct. at concurring); unconstitutionally imposes Their use a sen- concurring); see also United J., (Stewart, tence based on an uncounseled conviction. 449, Tucker, 443, 92 v. U.S. States 404 history category We remand (1972) (re 593, 589, 592 30 L.Ed.2d S.Ct. issue and note that the court convic- tribal district manding resentencing because depart tions not be from the used to unconstitutionally in two court considered Guidelines. en imposing in felony convictions valid v. sentence); States United hanced Cir.1989) Williams, 212, (9th F.2d 214 891 CONCLUSION Baldasar (“The concur consensus [the ] opinion, For the reasons in this we stated conviction is that an uncounseled rences vacate sentence and remand for further impos purposes is invalid sentencing proceedings consistent with this though imprisonment,

ing a sentence opinion. nonprison in itself for valid sentence, enhancing a is also invalid denied, cert. imprisonment.”), sentence WALLACE, Judge, concurring in Chief — 1496, U.S. —, 110 108 L.Ed.2d S.Ct. dissenting part part: and in Eck Contra States v. (1990). United 631 agree majority I with the that we must

ford, 910 (5th (holding F.2d 216 vacate the sentence and remand the case. prior decisions the Fifth Circuit give notice of The district failed to view Balda in rejected plurality’s have intent his sar that uncounseled misdemeanor convic required by used increase a term of tions cannot be Nuno-Para, 877 F.2d 1409, (9th Cir. imprisonment sentencing for a sub However, 1989). we have vacated offense). sequent criminal basis, need not the sentence this government’s argument is that main any ap decide other issues raised on prior played only a tribal convictions Brady’s allegations error should peal. departure. small role Because be considered the first instance did the extent not indicate judge, the bene district who will now have played depar each factor the sentence par briefing argument by fit of and ture, impossible pre it is to determine Therefore, separately. I ties. write cise enhancement attributable simply vacating Instead of the sentence the court’s reliance on the uncounseled con Nonetheless, remanding majority rules victions. we hold (em experiences”) This is not a case not learned from their where 1044, underlying prior added), denied, considered the conduct phasis cert. 459 U.S. determining convictions (1982); 74 L.Ed.2d S.Ct. give was warranted. We (D.Or.1988) Belgard, F.Supp. opinion constitutionality depar no ("I [, read 92 S.Ct. do not Tucker that basis. v. Fleish ture on See United States using prohibit probation officer from 589] man, (9th Cir.) (sentencing episodes led to about which later information court's consideration uncounseled Mex presentence preparing convictions in his convictions was court en ican not error where part, part, report”), rev’d in aff’d hanced sentences on that [defendants] the "fact Cir.1990). drug-related had been involved offenses

855 79, 91, Pennsylvania, lan judge’s future sentenc- 477 U.S. on the district all of 2411, 2418, (1986), prema- L.Ed.2d 67 ing rulings These are S.Ct. decisions. vacated, jury finding prosecu- the and therefore that has The sentence been ture. proven beyond not a reason- tion has facts judge’s of the sen- district denial thus the does not the doubt bar acceptance responsi- able tence reduction reconsidering during these sentenc- facts consecutive- bility, his decision sentence Mocciola, United States v. See ing. from the ly, grounds departure and his (1st Cir.1989) (Mocciola) (point- F.2d decided. Sentencing need not be Guidelines ing proof). different out standard presentations by and the coun- With notice sel, enter a sentence. may well different he Congress in- There is no evidence that yet By ruling on a sentence that has Sentencing tended the Guidelines to alter the risk of- imposed, majority the runs been existing by limiting scope law of evi- on reaching erroneous conclusions based a judge during dence available to sentenc- information. incomplete fact, applicable In ing. language of the compels opposite statute conclusion. to sen- example, the For decision whether provides limitation Section that “[n]o concurrently consecutively tence placed shall be information concern- factors, including rests on a number character, ing background, and conduct adjustments. and offense level person convicted of a of an offense which a Commission, See Sentencing may receive ... and consider for the Manual, 3D1.1-3D1.5, Guidelines §§ imposing purpose appropriate an (U.S.S.G.). (Nov.1990) Despite this 5G1.2 tence.” 18 U.S.C. This statute hypothesizes fact, majority Sentencing was effect Guide- depar- is “a drastic consecutive was incorporated, lines without an unreason- ture from the Guidelines and changes, into the Sentencing Reform Act. believe, however, I able sentence.” Sentencing Reform Act of See Pub.L. speculating refrain from about we should 98-473, 212(a)(1), II No. Title 98 Stat. sentences, and review the future (1984). As the drafters Sen- decision, judge’s in- district new point out, tencing Guidelines recodi- “[t]he upward departure, only cluding any when this fication of 1970 statute ... makes it it us. is before Congress that no limita- clear intended more A second and unfortunate unneces- placed the information tion would be majority’s sary excursion centers on the may an that a court consider permit “the theme that not] [do sentence under the [Guide- a court to reconsider facts sentenc- comment, 1B1.4, lines].” ing by a implicitly rejected that have been (backg’d.); see also (following id. IB 1.4 However, jury’s verdict.” mandate, by providing that congressional statute, position contrary to the Sentenc- determining ... “[i]n Guidelines, position and to the taken warranted, guidelines is the court ruling all circuits the issue. other limitation, any in- consider, without concerning background, formation were Before the defendant” character .conduct enacted, sentencing judge permitted added)). (emphasis evidence, range “in to consider a wide punishment crimi- to tailor the to the reader, order but position This seems clear to a crime.” nal than to rather majority differently. sees it Without Morgan, State v. authority, majority citing any carves Cir.1979). relevant evidence included exception Such and the an the statute out concerning Guidelines, which Sentencing information crimes for does not indeed .and Id. their acquitted. why had been are explain not bound Atkins, also United 1136-37; so, see doing majority creates terms. (9th Cir.1973). unnecessary Facts conflict. intercircuit merit” proven Fifth has found “without relevant to need Circuit evidence, by considering facts under McMil- argument preponderance *12 856 explains disagreement its majority a was for which defendant crime

lying a ruling circuits on the with all the other jury’s judge “overrode acquitted, judge by arguing permitting issue a fact issue.” United determination disputed facts sentenc- 747, to reconsider F.2d 749 Juarez-Ortega, 866 v. States “punish[ the de- ing judge enables Instead, Cir.1989). ] the court held that (5th offense for which he or she fendant for an jury may have determined “[ajlthough acquitted.” This is untrue. The been proved ha[s] had not all of government sentencing discretion is limited judge’s [charged] offense be elements of the offense for statutory maximum of doubt, a determina such yond a reasonable convicted, as well which the defendant preclude consider necessarily not tion does ap- rigorous standard review as the offense at underlying facts of ation guideline departures. See plied to evaluate agree. circuits other sentencing.” Id. Six Lira-Barraza, 897 F.2d v. United States Fonner, 1330 920 F.2d v. States United (9th Cir.) satisfy five (departure must 981 may prior (7th (judges consider banc, 909 step analysis), reh’g granted en acquit defendant’s despite the misconduct (1990). In this if on re- F.2d 1370 arising out of that miscon charges tal judge imposes the statu- mand the district duct); Rodriguez-Gonza v. States United voluntary tory maximum sentence (2d Cir.) (Guide 177, lez, 179-82 899 F.2d (120 months), manslaughter count this principle that sen changed lines have not still fall below the tence will proven by only be tencing factors need sentence for second Guidelines’sminimum evidence), cert. de preponderance (135 months). degree murder — See 127, —, 112 nied, 111 S.Ct. 2A1.2, 2A1.3. §§ Dawn, (1990); v. L.Ed.2d 95 Cir.) (same), 1444, (8th 1449-50 F.2d 897 majority’s reason for aban stated — U.S. —, denied, 111 S.Ct. 389- cert. “the maximum doning precedent is that Mocciola, (1990); 90, 891 112 L.Ed.2d 400 by the statutes were prescribed (facts prior ac underlying F.2d at 16-17 in a a defendant was formulated time when by sentencing may considered quittal parole.” Although an accurate eligible for Isom, court); v. 886 F.2d statement, limiting justify not this does (4th Cir.1989) may 736, (judge enhance 738 to the dis scope information available did not result in sentencing. for conduct that judge during Sen trict conviction); Ryan, provides tencing explicitly United State Act Reform Cir.1989) (Commission (3d may depart upward from the Sen judge 3553(b), Guidelines, tencing should continue to con 18 U.S.C. intended that courts see acquitt consider judge defendant conduct for which and authorizes sider circuit, now, making ed).1 is to the evidence in decision. one until relevant Not Therefore, no there is basis Why should the Ninth Circuit be Id. 3661. contrary. majority’s eliminat conclusion different? for a sentence en- majority attempts viction could be the basis to distin- In footnote Fonner, (7th guish long F.2d 1330 facts “meet United States v. as those hancement Isom, Cir.1990), 886 F.2d quoting and United States reliability standard.” Id. at Juarez- Cir.1990), by arguing Fonner, that in these cases Similarly, Ortega, F.2d at 749. facts, undisputed district court relied on "the unequivocally that stated the Seventh Circuit rejected by jury’s guilty ver- not on facts guidelines ”[n]othing or the Consti- either the ignores reading the reason- dict.” This narrow taking prevents account of tution ing underlying opinions. ex- Both cases engaged, wheth- in which the conduct position plicitly that be- endorse this dissent’s prevents imposition of acquittal er or not an proof, different standards of conduct cause of directly penalties on that conduct.” resulting may verdict be used to in a Fonner, The Seventh Circuit F.2d at 1332. enhance sentence. agreement cit- expressed with the other circuits example, the Fourth Circuit stat- For in Isom (”[J]udges Id. at 1333 ed this dissent. acquittal demonstrates ed that verdict of "[a] despite the defen- misconduct consider doubt; beyond proof a lack of a reasonable charges arising acquittal out of the dant’s necessarily the defendant's it does not establish appeals have so Six courts of misconduct. Isom, innocence.” F.2d at 738. The held.”). resulting con- in a concluded that conduct not Department See Health & Hu implicitly goal. limited the Congress parole, FLRA, man Services v. statu ability up to sentence to the judge’s *13 994(m) (9th (intercircuit U.S.C. n. conflicts tory maximum. § Cf. avoided, Sentencing especially Reform should be where federal (suggesting higher uniformity). in ob law calls for Act result many cases, sen “in current serving that Under circumstances of this we accurately serious reflect tences do not far would be better advised to vacate offense”).2 ness of the reaching sentence and remand un- without Therefore, cautioned that absent properly necessary We have issues. I concur so, to do we should re good part. reason part some and dissent of intercircuit conflicts. sist the creation Larm, 780, 824 F.2d denied, 484 U.S. 1078, cert.

(9th Cir.1987), (1988). I 98 L.Ed.2d 1019

108 S.Ct. here— justification for its creation

see no case

especially Sentencing in a apparent uniformity is an

where national lA4(b), argues p.s. (judge depart majority 12 that its U.S.S.G. § also in footnote also 2. proof, rare, depend cases); holding not on standard atypical does from Guidelines judicial merely 5K2.0, decision to “de- involves but p.s. (discussing grounds departure). for category of cannot be facts that fine one more by majority cases The other two cited court in sentence." a district used authority do not establish that we have the to However, majority pro- cited the cases information to limit the available support for the remarkable assertion vide no Alvarez-Cardenas, judges. In United appellate may, initia- on its own that an tive, (9th Cir.1990), we held that the 902 F.2d the sen- the information available to limit deportation possibility of could not be the basis Rather, they tencing judge. involve situations departure, deportation for a downward Guidelines, statute, Constitu- or the where the tion, speak question, not to offense in nor "does considering as the basis certain facts bar speak character." Id. at does it offender’s for sentence enhancement. This exclusion information of irrelevant Enriquez-Munoz, States v. In United statute, support finds both Cir.1990), (9th we that a held (direct- Guidelines. See 1B1.4 depart upward judge may the Guide to consider relevant to the courts evidence grounds the defendant lines on the "background, the de- character and conduct of “profit by greed. We reasoned motivated fendant”); (same); see also 28 18 U.S.C. 3661 motivating many primary if not most factor in crimes____ 994(d) (e) (listing irrelevant & factors U.S.C. When the Guide types of it [drafted sentencing). Finally, United States v. undoubtedly had in mind Commission line] the fact Cir.1990), Watt, (9th frequently engage people in crimi 910 F.2d 591-92 profit.” For Id. at 1361-62. determine whether nal conduct held that a must reasons, accepted responsibility we have held that similar for his has judges may the defen the basis of pre- considering the defendant’s offense without treatment, psychiatric be or dant’s need interpreta- plea We that this conduct. stressed possibility deportation. United cause necessary to avoid an tion of section 3E1.1 was (9th Doering, Cir. 909 F.2d States v. application the Guidelines. unconstitutional Sentencing 1990) (because Congress directed the Id. at 592. to consider "rehabilitation” Commission providing care, excluded in contrast information with ... medical defendants "needed cases, here—Bra- previous the evidence at issue treatment,” the need other correctional dy’s mind—is relevant state of psychiatric a factor over assistance was not and conduct” and a factor "character Commission); States v. looked lA4(b), atypical. this case See U.S.S.G. makes Ceja-Hernandez, Cir. impediment p.s. is there constitutional Nor ("When setting entry 1990) level for Therefore, considering this information. deportation, Commission after previous Ninth stands in stark contrast case practice certainly have been aware of the would disallowed sen- cases where we have Circuit they deporting promptly serve aliens after comply necessary to when tence enhancements sentences.”). follow di These decisions such rectly Guidelines, statute, Constitution. or the with the statute, which autho Thus, cre- majority precedent for its has no departures only the case when rizes the dis- theory restrict that our court can ated atypical U.S.C. circumstances. involves § considering the information 3553(b) (circumstance trict court from that was must be one consideration.”); adequately see issue. taken into "not