United States v. Schweitzer

14 F. App'x 832

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 9, 2001
• Docket: No. 00-50467; D.C. No. CR-99-00978-MLR-01
• Status: Published

Opinion

MEMORANDUM

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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 PreSentence 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”).

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.