United States v. Weaver

4 F. App'x 410

Opinion

MEMORANDUM

Footnotes

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Duane J. Weaver appeals from his sentence. We have jurisdiction under 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291, and we review the district court’s interpretation of the Sentencing Guidelines de novo. See United States v. Kakatin, 214 F.3d 1049, 1051 (9th Cir.2000). We affirm.

Weaver first argues that the two-point enhancement under U.S.S.G. § 4Al.l(d) violates due process because he was placed on inactive probation and was effectively unsupervised after 1987. However, active supervision is not required for § 4A1.1(d) to apply. See U.S.S.G. § 4Al.l(d), Application Note 4 (“active supervision is not required for this item to apply.”); see also United States v. McCrudden, 894 F.2d 338, 339 (9th Cir. 1990) (“The non-supervisory status of a sentence of probation does not exempt it from section 4A1.1(d).”) Weaver remained under the jurisdiction of the court and was still under a criminal justice sentence when the scheme to defraud began in June, 1992.

Weaver also argues that to apply § 4A.l.l(d) without finding that he willfully failed to make restitution payments violates due process under United States v. Parks, 89 F.3d 570 (9th Cir.1996). Unlike Parks, Weaver was not under a sentence of legal financial obligation when he committed this offense. He had been sentenced to probation and a 10-year deferred sentence, and as part of the same sentence was ordered to make restitution within his ability to pay.

AFFIRMED.

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.