United States v. Zargar

40 F. App'x 548

Opinions

MEMORANDUM

Footnotes

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Abdulah Zargar appeals his sentence for thirty counts of mail fraud, eight counts of filing false and fraudulent claims, six counts of promotional money laundering, two counts of false use of a social security number, and one count of making false statements in a passport application. He argues that the district court abused its discretion in imposing an upward sentencing departure under U.S.S.G. § 4A1.3 because his prior criminal conduct was either not established by reliable evidence or was dissimilar to the conduct in the instant offenses. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we vacate Zargar’s sentence.

Zargar operated a massage and acupuncture clinic in Arizona from January 1995 to March 1999. The instant case arose from false claims that he filed with insurance companies to obtain payment for his services that were not covered. According to his Presentence Report (“PSR”), Zargar’s combined base offense level was twenty-five and his criminal history category was III. The PSR also indicated that Zargar had been charged with attempted involuntary sexual battery in 1978 and two counts of second degree sexual assault in 1991. Further, there were sixteen outstanding warrants for Zargar’s arrest on charges of obtaining property in exchange for worthless checks in 1986 and two outstanding warrants for third degree sexual assault and bail jumping in 1992 and 1993, respectively. The district court apparently used these as grounds for an upward departure pursuant to § 4A1.3 and sentenced Zargar according to criminal history category IV. A district court’s decision to depart from the Sentencing Guidelines is reviewed for an abuse of discretion. United States v. Caperna, 251 F.3d 827, 830 (9th Cir.2001). However, the court’s interpretation of the Guidelines is reviewed de novo. United States v. Jordan, 256 F.3d 922, 926 (9th Cir.2001).

On appeal, Zargar argues that the district court abused its discretion in relying upon the sixteen bad check warrants because they were not established by reliable evidence. Zargar points to the fact that the PSR’s description of those warrants contains minimal factual details in comparison to the description of the sexual assault charges.¹ In imposing the upward departure, the district court emphasized that the instant case was not the first time Zargar had engaged in false or fraudulent claims. This indicates that the court considered the bad check warrants under § 4A1.3(e), which allows the district court to consider prior similar adult criminal conduct not resulting in conviction.² In order for subsection (e) to apply, the prior adult criminal conduct must be established by rehable evidence. Cf. United States v. Williams, 910 F.2d 1574, 1580 (7th Cir. 1990) (stating that “[t]he determination that the arrests indicated similar criminal conduct must be based on facts apart from the arrest record itself’), vacated on other grounds, 503 U.S. 193, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). The minimal information concerning the sixteen outstanding warrants in paragraph forty-nine of the PSR does not constitute rehable evidence of the conduct that formed the basis for those charges. Further, there is no indication in the record of what the author of the PSR based the description upon. Cf. United States v. Durham, 995 F.2d 936, 938 (9th Cir.1993) (author of PSR testified that he relied on pohce records and other PSRs). Because it appears that the PSR’s account of the bad check warrants was not based upon rehable records, the judge misapplied the Guidelines in considering it. See U.S.S.G. § 4A1.3 (stating that the court may depart from the Guidelines if reliable information indicates that the defendant’s criminal history does not adequately reflect the seriousness of his or her prior criminal conduct or likelihood of recidivism).

Zargar also argues that the district court abused its discretion in relying upon the two sexual assault charges and the sexual assault and bail jumping warrants because these are dissimilar to the instant offense. However, because Zargar failed to raise this argument in the district court, it is waived. See, e.g., United States v. Cormier, 220 F.3d 1103, 1113 (9th Cir. 2000) (citing Peterson v. Highland Music Inc., 140 F.3d 1313, 1321 (9th Cir.1998)), cert. denied, 531 U.S. 1174, 121 S.Ct. 1146, 148 L.Ed.2d 1009 (2001).

VACATED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1

. Zargar also argues that the PSR’s description was based entirely on warrant records which he contends are akin to arrest records, and, therefore do not constitute reliable evidence. See U.S.S.G. § 4A1.3. There is nothing in the record which indicates what the PSR's description is based upon. However, it is not necessary to determine the exact nature of the source materials. Whatever materials the PSR author relied upon, they did not amount to reliable information establishing the conduct underlying the bad check charges.

2

. The district court could have considered the bad check warrants under U.S.S.G. § 4A 1.3(d), which states that the district court may consider "whether the defendant was pending trial or sentencing on another charge at the time of the instant offense.” See, e.g., United States v. Cruz-Ventura, 979 F.2d 146, 150 (9th Cir.1992); United States v. Gayou, 901 F.2d 746, 748 (9th Cir.1990). However, because there is nothing in the record indicating that the district court considered the bad check warrants as evidence of pending charges, Zargar's sentence cannot be affirmed on this ground. See United States v. Connelly, 156 F.3d 978, 983 (9th Cir.1998) (“We limit our review to the reasons actually given by the sentencing court.”).