Zargar

MEMORANDUM **

Abdulah Zargar appeals his 105-month sentence imposed after this court vacated his original sentence and remanded for re-sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we remand for re-sentencing under the advisory guidelines.

Zargar contends that the district court erred in departing upward one criminal history category pursuant to U.S.S.G. § 4A1.3(e) based on past criminal conduct that was dissimilar to the crimes in the underlying conviction and was not supported by reliable evidence. We disagree. As we recognized in United States v. G.L., 143 F.3d 1249, 1254 (9th Cir.1998), “[U.S.S.G.] § 4A1.3(e) does not mandate that prior criminal conduct be either similar or adult to warrant departure.” Id. Moreover, we cannot say that the district court abused its discretion by departing upwards one criminal history category based on insufficient or unreliable evidence. See United States v. Marina-Cuevas, 147 F.3d 889, 894-95 (9th Cir.1998).

Although we agree that the district court was within its discretion to depart upward one criminal history category pursuant to U.S.S.G. § 4A1.3 under the then mandatory sentencing guidelines, we cannot…