*1 978 timely

responsibility and notification of intent correctly We find that the Anders brief plead guilty. to possible characterizes the for appeal issues independent without merit. Our review if Aguilar-Muniz Even had not fails to disclose other non-frivo- record sentence, appeal appeal waived his appeal. lous issues Counsel’s motion Eighth on based Amendment would fail. GRANTED, withdraw is therefore and the context, penalty Outside of the death conviction and sentence are AFFIRMED. Eighth only by Amendment is offended sen “grossly disproportionate” tences that are Michigan,

the crime. See Harmelin v. 501 959, 957, 2680, S.Ct. L.Ed.2d (1991); Bland, v. 961 F.2d United States Cir.1992).

123, 129 Longer sentences on drug similar violations have been Eighth not to

held violate the Amendment. Winrow,

See United States Van 951 F.2d (9th Cir.1991) (holding life America, UNITED STATES of parole sentence without for defendant con Plaintiff-Appellee, possession

victed of with intent distribute grams of 151.9 cocaine does not violate Amendment). Eighth CONNELLY, Charles Defendant- evaluating In addition to the issues raised Appellant. brief, independently the Anders we have No. 97-30233. appealable

examined the record errors. Ohio, 75, 82-83, See Benson v. 488 U.S. Appeals, States Court (1988). S.Ct. L.Ed.2d Counsel Ninth Circuit. possible appellate did address issues aris- Aguilar-Muniz’s right waiver of the Argued April and Submitted 1998. hearing government’s to a motion to plea agreement. withdraw the first Sept. Decided plea After a agreement has been ac court,

cepted entered the court

may not plea agreement rescind the

government’s motion unless the defendant agreement. breached See United v. Sandoval-Lopez, 122 F.3d

(9th Cir.1997); United States Partida-

Parra, (9th Cir.1988). Aguilar-Muniz advised he oppose government’s could mo-

tion to plea agreement, withdraw the if

successful, original agreement enforce the Aguilar-Muniz

under which would re- have ten-year

ceived sentence rather than a

fourteen-year sentence. The defendant ini-

tially appeared not to understand court’s

explanation. problem The court called the counsel,

the attention defense and after defendant,

counsel conferred with the found

that the knowing voluntary. waiver was review,

On novo de we find error in no

district court’s determination.

981 *3 On were dishonored. Defender, accounts tablished Gallagher, Federal Anthony R. attempted to cash 13,1996 Defendant August MT, defendant-appellant. Falls, Great Bank $12,500 the Norwest cheek Atty., Rostad, Great Asst. E. Carl Montana; alert- the teller Billings, branch MT, Falls, plaintiff-appellee. arrested. was and Defendant police ed De- arrest and his deposit his first Between $12,169.80 the Nor- withdrew fendant accounts. west BELOW PROCEEDINGS *4 HUG, Judge, Chief Before: bank guilty to the Montana pled Defendant REED,* REINHARDT, Judge, and Circuit 21,1997. Pursuant January charge on fraud Judge. District in federal pled guilty he to Fed.R.Crim.P. Ohio,credit to the in Montana court district REED, Judge: District At that July 1997. charge on fraud card (hereinafter, “Defen- Connelly Charles 60 months of to terms he was sentenced time in occasions dant”) separate on pled guilty concurrently, followed to run charge, each for under 18 fraud of bank to one count The release. supervised of years by five credit card count of and one § 1344 U.S.C. requested two-level denied court district 1029(a)(2). Depart- § under 18 U.S.C. fraud of re- acceptance for adjustment downward requested down- denying a upward, and court’s ob- largely on sponsibility, responsi- acceptance of for adjustment ward sentencing. servations him to 60 sentenced court bility, the concur- be served charge, to for each months on upward departed Additionally, challenges his sentence. now rently. He history criminal that Defendant’s ground § 1291 28 U.S.C. under jurisdiction We have the seri- reflect “adequately did category we affirm. and con- criminal past of the defendant’s ousness will the likelihood duct FACTS § 4A1.3. U.S.S.G. crimes.” commit in guilty approached pled January 1996 Defendant in 1990 Defendant Specifically, In theft, Husarick, in the state for of counts Richard to three acquaintance, state court Ohio him that falsely sentences represented concurrent and three of Ohio received he which bank. a local with were officer the convictions a loan Because he was months. of 18 help would he “relat- they were Persuading sentencing, Husarick Mr. consolidated of a line and obtain were there- his loans and consolidate 4A1.2 him under U.S.S.G. ed” months, Ex- an American credit, acquired of 18 Defendant as one sentence counted fore sub- He name. history points; in Mr. Husarick’s press card criminal resulting in three $22,274.14 in unautho- each sequently separately incurred sentenced he been had charges. crimi- six count, rized have received would more he Smith, v. States United history points. nal Nor- representing after August In Cir.1993) (9th (citing 1468, 1473 Bozeman, that he was Montana in Bank west 4A1.2). Second, 1993 Defen- U.S.S.G. Company Pittsburgh Glass an heir court to one state guilty Ohio pled dant savings account fortune, opened Defendant property receipt of stolen attempted of $16,500. count totalling deposited two checks and he was for which forgery, of one count checking ac- opened a he days later A few con- in a probation years’ three sentenced Bank branch Norwest same count sen- This proceeding. sentencing $21,500. solidated All totaling two checks deposited point; history in one resulted tence fraudulently es- written checks were four * designation. Reed, Jr., by Senior United C. Edward Honorable Nevada, sitting Judge, of District States District weighs against finding had the two convictions not been tion and remorse of consolidated acceptance sentencing, responsibility, “implicit would have one he received of because acceptance point. departed responsibility district court of is an additional admis history points, wrongdoing,” seven of sion moral as Defendant Gallant, points guilty pleas six for the 1990 and one concedes. Cir.1998); point guilty plea, resulting see United States Cir.1994) Davis, 1424, 1435-36 score 16 and (under 3E1.1, category pre-1992 of VI. affirma version adjustment), tive evidence contrition warrants challenges Defendant now denial nom., rt. denied sub Williams ce acceptance responsibility adjustment U.S., S.Ct. upward departure. (1995). Lying L.Ed.2d 1106 about offense weighs conduct or relevant conduct also DISCUSSION Vance, responsibility. against acceptance of 62 F.3d at I. Standard of Review A district adjust court’s decision to adjust The district court denied the acceptance a defendant’s sentence based on *5 “clearly ment because Defendant stated ... responsibility of is a factual determination always somebody it’s fault ... else’s reviewed for clear v. error. United States pretty a good story [and] laid out about what Villasenor-Cesar, 114 F.3d Cir. appeared theory to be a Robin Hood of what 1997). A depart district court’s to decision doing.” holding clearly he was This is not the Sentencing range from re Guidelines erroneous. Regarding the Montana bank

viewed for abuse of discretion. United count, fraud at Defendant asserted sentenc Sablan, v. F.3d ing: — Cir.1997) (en banc), denied, cert. I went I to Norwest Bank Bozeman and -, (1998). 118 S.Ct. 139 L.Ed.2d 752 opened an account with check that wasn’t applies This also standard where the court good brokerage company from a I got departs a criminal category. from buy housing from York New to food and Goshea, United States and HIV medication. (9th Cir.1996). Although a district court its abuses discretion when it makes an error may thought Defendant have at one time he law, of our abuse in of discretion however, standard HIV-positive; was in his allocution cludes review to determine whether the dis acknowledged any he that he is In not. trict guided court’s discretion was event, errone money of placed in the Bozeman legal ous conclusions. account, United States spent he on a car and $6500 $469 Koon, 2035, 2047-48, 518 U.S. 116 S.Ct. bike, a mountain poker and lost $3000 (1996). 135 L.Ed.2d game. Regarding the Ohio credit card

count, Defendant stated: Acceptance Responsibility II. of fund-raising Husarick] had an [Mr. AIDS clearly Gay

“If the through demon Pride festival which he acceptance responsibility” owns], strates money, of for his took the from the [he bar offense, for, case, qualifies he got then in this and it people never to the who were adjustment supposed two-level downward offense I to receive it. And so went—he 3El.l(a). Although plead level. U.S.S.G. trying get told me that he was a loan guilty truthfully admitting the of bank. guy The is crooked. “significant fense conduct gave constitute evidence Crooked as could be.... He ame acceptance of responsibility,” corporate this evidence credit I bought card. went and may outweighed be by conduct I things. inconsistent furniture and went and bought acceptance responsibility. with such things money supposed that the AIDS was 3E1.1, 3; App. buy. U.S.S.G. note I United States But was authorized to not make Vance, (9th Cir.1995). purchases those on the credit card be- cause, particular, In apparently, failure demonstrate contri- I obtained a credit card sentencing engages mean, A court in a condi- under fraudulent without—I 1) four-step departure analysis: it tions, identifies fraudulent terms. potentially case it what features of the take “heartland” and make outside Guidelines’ mean, know, right. I you I what did wasn’t 2) case, special of it a or unusual it deter But, unfortunately, I understand that.... has whether the Commission forbid mines ill, today, get you if system you in—in the 3) features, departures if den based those out, help you your don’t have Government not, it determines whether the Commission by yourself. you’re stuck encouraged departures has based on those contrition demonstrated neither Defendant 4) not, features, and if it determines whether remorse, story” Hood nor a “Robin told discouraged Commission His motive behind his frauds. regarding the Sabían, 114 at on those features. based sufficiently in- sentencing are statements are special If the features forbidden responsibility acceptance consistent with departure, the sentencing bases for court adjustment. to warrant denial of a downward depart; examples use are cannot them race, sex, creed, origin, religion, national so- Departure Upward III. Criminal His- status, guidance lack cio-economic tory Category drug youth, dependence, or alcohol and eco pursu- departed upward hardship. spe If nomic Id. 916-17. 4A1.3, permits which de- ant to U.S.S.G. encouraged, are cial factors the court is au upon partures under-representation of based depart if the applicable thorized to Guideline history, observing: already take them into account. Id. does my upon the special If are at 917. factors discour himself, his Defendant observations aged, encouraged already but into taken *6 speaking to the Court and his manner Guideline, by the the court applicable account way highly to that it is unlike- indicates me depart present if is only the factor should ly going to not be a that this individual way or exceptional degree in some other he has recidivist and that demonstrated ordinary the case different from makes pattern throughout his life conduct present. Id. where factor case likely that he’s would indicate me And, therefore, I find that the continue. in history criminal cat The issue history criminal that is stated nine is depar egory departures—i.e., “horizontal” under-represented. whether reliable information dem tures—is history category that onstrates departed points court The seven not reflect the seriousness adequately “does guilty history, points six for the 1990 or past criminal conduct the defendant’s pleas point guilty plea, for the 1993 and one will that the defendant commit likelihood post-departure in a resulting § 4A1.3. This stan crimes.” U.S.S.G. challenges the de- category of VI. Defendant the criminal cate is met “when dard depart. cision to under-represents the seri gory significantly Sentencing A. The Guidelines history or ousness of the defendant’s will departure commit may “An be the likelihood that v. crimes.” United States Carrillo- has commit further warranted when the defendant (9th Cir.1993) Alvarez, 316, (citing 3 320 criminal histo F.3d ted crimes conduct 4A1.3). § where One circumstance ry specifically fail to U.S.S.G. calculation instructions Henderson, inadequate, history may be and de v. 993 criminal consider.” United States Cir.1993) (9th (citation warranted, may is where “sen 187, parture omit be F.2d 189 ted). as related because tences were treated limit our review to reasons We Id.; sentencing” and were for sentencing court. eases consolidated actually given Green, sepa were therefore not 105 some convictions v. F.3d see also United States (9th Cir.1997) history. 1321, in criminal U.S.S.G. (sentencing rately counted court’s 1322 4A1.2, App. “the note 3. Because Sentenc “sufficiently specific ... must be rationale contemplate” review”). such specifically Guidelines appellate allow 984 ground departure, depar- departure, scenario as a and at least our two of cases so case, Carrillo-Alvarez, encouraged 321-22;

ture is sen- hold. 3 at F.3d depart 844, tencing Brady, v. long court is authorized to so United States 928 853 & (9th Cir.1991), §as n. part by 4A1.3 is satisfied. United States v. 16 overruled (9th Hines, 1469, Cir.1994); States, 738, 26 F.3d 1478 v. Nichols United 511 U.S. 748- 4A1.2, (1994). App. 114 U.S.S.G. note 3. S.Ct. 128 745 L.Ed.2d departures upheld We have nonetheless with Application B. explicit showing out an E.g., of seriousness. Goshea, United States 94 F.3d 1364 Report past The Presentence details the (9th Cir.1996); Segura-Del United States upon criminal conduct which the district Real, Cir.1996), 83 F.3d 278 cert. relied, we which summarize as follows: — denied, -, 117 S.Ct. May $28,000 up unpaid ran (1996); Myers, L.Ed.2d United card, charges on wife’s credit failed to (9th Cir.1994); 41 F.3d 531 States v. pay rent Montenegro-Rojo, 908 F.2d 429-30 $20,000 June stole from in-laws Cir.1990). we Since conclude Defen Aug. passed bad check for $2500 serious, dant’s “uncounted” conduct is howev jewel- Nov. 1991 stole car $3000 er, we need wrestle further with this ry, charged $400 credit card unbriefed issue. forged Nov. 1991 check $2000 guides assessing Case law us in the seri conviction, For each 1989 Defendant received ousness of criminal conduct. We have re concurrent sentences of months. His versed shoplifting uncounted suspended convictions resulted in a six marijuana (G.L., simple possession sentence, prison years month proba- three 1254-55), (Carrillo- F.3d at burglary auto tion, and restitution. $6500 Alvarez, 322), and misdemeanor 853). battery (Brady, assault and 928 F.2d at question presented is whether By contrast, upheld departures we have this conduct satisfies 4A1.3. Our case law deadly uncounted assault with weapon reveals that if criminal history category sig (G.L., 1254-55), 1) impersonating nificantly under-represents either (Goshea, military 1364), officer 94 F.3d at of the “seriousness defendant’s criminal his *7 (United 2) degree robbery first tory” States Beas the “likelihood the that 400, (9th ley, Cir.1996), 90 F.3d 403 crimes,” will cert. § commit further then 4A1.3 is — denied, -, 533, G.L., U.S. 117 S.Ct. 136 satisfied. United States v. 143 F.3d (1996)), 1249, 1254-55 (9th L.Ed.2d 418 Cir.1998); immigra miscellaneous see also United Real, tion (9th (Segura-Del Cir.) violations 83 George, 1078, 1085 States v. 56 F.3d at F.3d (United 278), Camp, homicide States v. 72 (“propensity to commit further crimes” will (9th 759, Cir.1995), denied, denied, 762 support departure), cert. 517 cert. 516 U.S. 1162, 1557, 116 S.Ct. (1995); 116 134 L.Ed.2d 658 S.Ct. 133 247 L.Ed.2d (1996)), (United marijuana Smallwood, trafficking United States v. 35 F.3d Ponce, Cir.1994) (9th (§ Cir.1995)), 51 F.3d n. 4 prongs); 4A1.3 two prison public transportation and fights and Reyes, United States v. 8 F.3d 1385 n. (9th Cir.1993) fare evasion (Montenegro-Rojo, in F.2d at (suggesting dicta that 129-30). § 4A1.3 prongs). has two The district court plainly departed upon the second Defendant’s thefts are clearly and frauds prong, Defendant’s “likelihood recidivism.” marijuana more shoplifting, pos- serious than session, and misdemeanor assault and bat-

1. Seriousness ;ery, probably and are more serious than Despite the burglary. They standard enunciated in auto are more also serious ;han Guideline, the examples departure- the immigration violations, evasion, fare and worthy § imply conduct listed in mpersonating military 4A1.3 that officer. Conse- uncounted criminal quently, conduct must in all cases Defendant’s conduct falls within the cross a threshold of support Myers, “seriousness” to ‘serious” category. closely most the erroneous, 4A1.3, the not involving clearly bolsters and court did

analogous case Myers departing upward. abuse In the defendant its discretion conclusion. fraud, awaiting the ex- challenge and while Since Defendant does not pled guilty to wire $1,690 departure, do sentencing through another tent the district court’s we obtained “Myers’ that that of wire fraud. We observed reach issue. act is ... serious” and ac- post-offense conduct AFFIRMED. depar- the district court’s cordingly affirmed If Myers, 41 F.3d at 534. theft ture. REINHARDT, Judge, concurring Circuit serious, $1,690 through fraud is then wire part part: dissenting and through credit of at card theft least $2000 I I II of court’s concur Parts and the fraud, larceny forgery, plain and old is also opinion, dissent from Part III. I would but departure. supports horizontal serious hold its discre- that the district abused departing upward regarding tion in Connel- 2. Likelihood of Recidivism ly’s history, and therefore would justified purely Departure also part of his sentence and remand vacate re Defendant’s likelihood of basis of resentencing. apply we principal The factors cidivism. 1) majority are assessing recognizes, guidelines likelihood of recidivism As (or independent “repetitiveness”) provide prior of uncounted that when crimes quantity 2) conduct, similarity sentencing,” uncount are trial or “consolidated for conduct, single to the offense sentences are counted as a ed criminal conduct resultant 3) purpose to which the defendant has of criminal degree sentence for 4A1.2, by prior Segura- App. Note 3. deterred sentences. calculations. USSG been Real, 277-78; States v. are a occur- Del 83 F.3d Consolidated sentences common Chatlin, Cir.1995); and, rence, determining that explicitly 534; sentences, Montenegro-Rojo, it Myers, they single be should treated case, apparent Sentencing In this Defen that the Commission 908 F.2d at 429-30. May and November unau that basis dant’s intended striking exception of credit cards are both be rather than the rule. thorized use prior, consoli- ly guidelines expressly the instant Ohio credit card state similar to conduct, fraud, “significantly like underre- his uncounted must all of dated sentences offenses, stealing history or present” instant involve from defendant’s Moreover, him. people propensity trusted Defen his for recidivism to warrant who relatively upward departure from the sentences have been ineffec defendant’s dant’s category. committing him deterring tive at “heartland” frauds; indeed, appears it he committed his 4A1.3. USSG *8 long completing the 1991 crimes not after directly “significant It follows from this 1989 As for the prison term for his crimes. con- requirement that underrepresentation” conduct, prior of criminal Defen quantity provide permissi- not solidated sentences do as is not extensive dant’s “uncounted” record departures upward unless grounds ble Segura-Del of in Real as that the defendants In they imposed offenses. were for “serious” longer Montenegro-Rojo, but it is than and fact, § guideline 4A1.2 3 to Application Note the in and about that of defendant Goshea says explains It the criminal histo- much. as Beasley. same that of the defendant the as ry points assigned a consolidated sentence whole, of likelihood recid Defendant’s On “may adequately reflect the seriousness not under-represented by is significantly ivism ..., history [f]or of the defendant’s departure history category, and his criminal was of example, if defendant convicted [the] an was not abuse of discretion. com- non-violent offenses number of serious (emphasis on different occasions.” mitted CONCLUSION added). qualifier in both This is reiterated guidelines issue. address the adjust- places court’s denial of The district 4A1.3, controlling First, § guideline responsibility of was not acceptance ment 986 guideline case, provides this that quire[ that ] our focus remain distinguish- may upward courts an departure base on ing regarded offenses to be [uncounted] ’ sentenee(s) “prior substantially more than ‘serious from within the realm of of all crimi- year imposed one independent as a result of nal behavior.” United Wyne, States v. 41 crimes committed on different occasions.” (10th Cir.1994) (emphasis 4A1.3(b) added). Second, USSG (emphasis added). Thus, although couple of our cases policy 4A1.3’s statement up- states that an upheld without, have in the words departure

ward permissible would be when a majority, explicit “an showing of seri- prior “had received consolidated ousness,” maj. 984,1 op. at plain it think that years sentence of ten for a series serious both the text of guidelines precedent added). (emphasis assaults.” require that circumstance to be present.1 prior Our emphasize § cases also 4A1.3’s Applying case, rule to present this I requirement. “seriousness” In United States believe that the district in basing erred Cir.1991), Brady, F.2d 844 rru ove an upward departure on each Connelly’s led grounds by on other Nichols v. fart prior, First, consolidated sentences. it States, United 114 S.Ct. seems obvious Connelly’s prior, that consoli (1994), 128 L.Ed.2d 745 we up reversed an probationary period dated forging departure ward based prior, on two uncount check is $2000 not serious enough support ed convictions that resulted in sentences of departure. Because the district court ex days. less than explained We that: pressly Connelly’s increased history examples five [T]he listed by the [Sentenc- category part on the basis of that sen ing] possible Commission as grounds for tence, “improper this departure consideration” alone previous all make reference to ” ” requires that we vacate “serious “large-scale remand. See offenses which Donaghe, United States v. have not been included in the 611— (9th Cir.1994) (holding calculation. Neither that Brady’s up “[f]or convictions, departure valid, tribal ward assault both to be sentences of all [of fac the] days, less than represent tors this must proper [considered] level be bases for departure” seriousness. and if one factor is invalid we “must “vacate the sentence and remand for Id. at 853. similarly permit We refused to resentencing”’) (quoting an departure States v. prior, aon un- Montenegro-Rojo, 908 F.2d burglary counted auto Cir. conviction in United 1990)) added). (emphasis Carrillo-Alvarez, States v. A probationary pe 321- (9th Cir.1993), riod is less reasoning 30-day than the that of- sentence we “[h]is ” inadequate fense was found Brady, neither ‘large-scale.’ ‘serious’ nor is nowhere Id. at 322. near The Tenth guideline statute’s only Circuit —the prior that other circuit of I which am aware that sentence be “substantially more than one directly year imposed addressed the issue —has also held as a independent result of guidelines’ provisions governing crimes committed different occasions.” upward departures 4A1.3(b) added).2 “re- (emphasis USSG 1. I do not majority’s understand the claim that it closely asserts is analogous” our "most case on question the issue.” that of "seriousness” "unbriefed point, actually analogous at all. In Connelly argued repeatedly in his brief case, the defendant’s "uncounted” criminal *9 departure was only warranted a "when de- history did not prior even arise from a sentence. history fendant's category significantly criminal Rather, the uncounted conduct a wire was fraud under-represents seriousness of his criminal his- perpetrated that the defendant the convic- after tory or likelihood that defendant will commit issue, tion awaiting at sentencing. while It was Appellant's further (empha- crimes." Brief at 20 (i.e., unique that critical timing fact the of added); sis (arguing see also id. that events) gravity the of the fraud—that led us —not proper "only are quately when Guidelines do not ade- "Myers’ to post-offense conclude that criminal past reflect seriousness of an offender’s serious; only conduct is not conduct”) it constitutes the added). Thus, criminal (emphasis this strongest possible issue evidence of a clearly is likelihood that before us. she will to continue commit similar crimes in the 2. Myers, United States v. 41 F.3d 531 Cir. 1994), upon majority which the relies and which prior offenses. Given that uncounted three of 18 sentence

Second, Connelly’s prior count- contemplate expressly guidelines the involving between prior frauds months I together, cannot sentences of $28,000 not evidence consolidated 2,500 is also $ number of uncounted a small see how such prior criminal conduct “serious” sufficiently him from the heartland of guidelines’ the sentences removes departure from a warrant to prior TV, already highly recidi- which is length category of the While the heartland. on the district court entirely dispositive category; and neither may not be vist sentence signif- points any evidence that provides majority it I believe that nor the point, do this is guidelines the sentences because that three “uncounted” both guidance, indicates icant category to sentence IV. See repeatedly refer a defendant in unusual for themselves measuring (holding and because that Donaghe, seriousness 50 F.3d at length reflect designed to generally the record for are do “‘not search sentences review we instead, An 18- conduct. departure; of criminal reasons for permissible the seriousness small- by few actually given sentence analyzef consolidated the reasons ] month [we] “substantially court’”) Montenegro- that is (quoting is not one frauds time the district year” pursuant 428). “serious” anything one more than does Rojo, Nor § 4A1.3’s cry from decision, a far and is rec- or even the offenses court’s the district for a 10-year sentence series example whole, Connelly suggest as a ord —a at 1408 Wyne, 41 F.3d assaults. See prior serious sentences to by his been deterred departure based (reversing upward an who typical defendant degree than lesser or months of 13 sentences prior, history. uncounted category IV has amassed one-year because, guidelines given less See id. not “evidence such crimes were guidepost, majority’s final basis for That leaves conduct”). Nor, my ‘serious’ Connelly’s un- similarity affirmance: such a to account opinion, failing does offense conduct. conduct his counted underrepresent” the “significantly sentence rely First, court did not the district because such Con- as of a reason, plainly errs majority on this already at a criminal nelly who majority ac- id. While doing so. See of IV. level requir- of our rule the existence knowledges majority’s as- Finally, disagree I with circumstance, op. maj. see in this ing reversal departure is court’s district that the sertion apply it or simply fails consider it of Defendant’s purely on the basis “justified ignore the simply to here, choosing instead Maj. op. at of recidivism.” likelihood Second, if the even plain facts. § 4A1.3 indicates the text section While departure justification, on this relied had sup- might alone of recidivism that likelihood little, any, if sense. makes ground on this guidelines’ upward departure, port an likely to IV is category is in who Someone above) (which do not mentioned examples are of the same several offenses committed have and under- recidivism between differentiate Here, type of general type. general history. This structure represented criminal “stealing majority by identified offense both of bases suggests that strongly him,” maj. op. at people who trusted by supported departures must be § 4A1.3 words, economic non-violent 985—in serious, conduct. uncounted criminal who individuals is true that It offenses. his- enough criminal and earn fraud unusually high commit an assuming that But even catego- achieve classification tory points to by ser- not evidenced for recidivism potential varied their usually have not ry TV offenders sentences ious, prior consolidated uncounted murder, rape, committing careers could, itself, upward departure, support an Thus, suspect that the I would mayhem. Connelly has a case. surely is not such depar- warranting 534; gravating sentence (emphasizing also id. Id. at see future.” Hence, probation for ture"). Connelly’sprior his explicit Sentencing Commission’s unlike the *10 Myers' because decidedly than different is prior to fraud sentences consideration uncounted years the instant before several occurred conviction, it had “[n]othing the Guidelines indicates completely already ad- been sentencing and had adequately con- Sentencing Commission that the ag- judicated. post-offense conduct a defendant's sidered fairly typical Jenny NGO, defendant is a economic Plaintiff-Appellee, crime Ha category fraud offender of the IV class. is, course, That a reason for non-enhance- RENO HILTON RESORT CORPORA- ment, justification enhancing not a for —and TION, Hilton; Reno Hilton Hotels d/b/a especially justification not a enhancing for Corporation, Defendants-Appellants. impose length order to be able to predetermined sentence the court has ap- 95-16909, Nos. 95-16911 and 96-15553. propriate when it is dissatisfied with the Appeals, States Court of prescribed guideline that, sentence. And in- Ninth Circuit. deed, is what occurred here. The district deemed advance that in its view Sept. 1998. Connelly’s criminal place conduct did not him Mahoney, Scott M. Gaming Hilton Corpo- acceptable range “an sentencing” un- ration, Vegas, Nevada, Las for defendant- Therefore, guidelines. der the it decided to appellant, cross-appellee. enhance. Yet neither the district court’s reli- Connelly’s prior, ance on uncounted sen- Timothy Sears, DC, Washington, plain- majority’s tences nor improper addition tiff-appellee, cross-appellant. of other inappropriate provides reasons legal upward for an departure basis in Con-

nelly’s case on potential the basis of recidi-

vism.

Accordingly, I would vacate the departure and resentencing. remand for BROWNING, SKOPIL, Before:

BRUNETTI, Judges. Circuit opinion April issued on [140 hereby 1299] amended as follows: Slip op. at 3289 [140 F.3d at 1304]: Replace opening sentence of the first full paragraph following with the sentence: adopting standard, “In join we five other circuits that require plaintiffs also seeking punitive damages under Title VII to make a showing beyond the level of intentional required discrimination compensatory damages.” 2. Insert “Kolstad v. American Dental Jenny NGO, Ha Plaintiff-Appellee, Ass’n, (D.C.Cir.1998) 961-62 (en banc) (concluding that “the evidence of culpability defendant’s must exceed RENO what is HILTON RESORT needed to show CORPORA- intentional discrim-

TION, Hilton; support Reno ination” to Hilton a punitive damage Hotels d/b/a ” Corporation, VII)” Defendants-Appellants. award under title between “See and

the cite to McKinnon. Jenny NGO, Ha Plaintiff-Appellant, Slip op. at 3289 n.9 [140 F.3d at 1304]: “D.C.,” Delete the in the first sentence and the entire second sentence. RENO HILTON RESORT CORPORA- changes, With these panel has voted to TION, Hilton; Reno deny Hilton Hotels petition d/b/a for rehearing reject and to Corporation, Defendants-Appellees. suggestion for rehearing en banc.