United States v. Clyde Frank Martinez

905 F.2d 251 UNITED STATES of America, Plaintiff-Appellee, v. Clyde Frank MARTINEZ, Defendant-Appellant. No. 88-3240. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 8, 1989. Decided May 25, 1990. Stephen R. Sady, and Paul S. Petterson, Assistant Federal Public Defenders, Portland, Oregon, for the defendant-appellant. Michael W. Mosman, Assistant United States Attorney, Portland, Oregon, for the plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before BROWNING, WALLACE and FLETCHER, Circuit Judges. JAMES R. BROWNING, Circuit Judge: 1 Defendant-appellant Clyde Martinez appeals from his sentence following his conviction for unarmed bank robbery. I. 2 Martinez pled guilty to an indictment for unarmed bank robbery in violation of 18 U.S.C. Sec. 2113 (a). A probation officer's presentence report submitted pursuant to the Sentencing Guidelines determined Martinez's total offense level to be 17. The report then calculated Martinez's criminal history, adding one point for each of four prior convictions, including a conviction for public indecency. The report added two more points because Martinez was on probation from the…

Defendant-appellant Clyde Martinez appeals from his sentence following his conviction for unarmed bank robbery.

I.

Martinez pled guilty to an indictment for unarmed bank robbery in violation of 18 U.S.C. § 2113 (a). A probation officer’s pre-sentence report submitted pursuant to the Sentencing Guidelines determined Martinez’s total offense level to be 17. The report then calculated Martinez’s criminal history, adding one point for each of four prior convictions, including a conviction for public indecency. The report added two more points because Martinez was on probation from the indecency conviction when he committed the robbery, for a total criminal history score of six, placing defendant in criminal history category III. A total offense score of 17, coupled with a category III history, resulted in a sentencing range of 30-37 months. See United States Sentencing Commission, Guidelines Manual (U.S.S.G.) ch. 5, Part A, Table (Oct. 1987).

The district court granted Martinez’s request for a downward departure due to mitigating circumstances, reducing his incarceration from 30 to 27 months, but denied Martinez’s objections to the report in other respects. Martinez appealed.

The…

concurring:

I concur in the result reached by the majority opinion and in the reasoning of parts I, III, and IV of the opinion. I am troubled, however, by the analysis in part II. I write separately because I believe the majority’s approach to determining whether Martinez’s conviction for public indecency is “similar to” the offenses excluded by subsection 4A1.2(c)(2) misinterprets the Sentencing Guidelines (Guidelines).

Subsection 4A1.2(c)(2) provides: “Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are never counted: Hitehhiking[,] Juvenile status offenses and truancy[,] Loitering[,] Minor traffic infractions[,] Public intoxication[,] Vagrancy.” United States Sentencing Commission, Guidelines Manual, § 4A1.2(c)(2) (Nov. 1989) (U.S.S.G.). The majority concludes that this section articulates a general principle that offenses that are not “universally regarded as culpable” and “relevant to the likelihood the offender will engage in criminal conduct in the future” are not “significant for sentencing purposes.” Maj. op. at 254. While this interpretation of subsection 4A1.2(c)(2)’s rather ambiguous language is not…