United States v. Shirazi ( 2009 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 15 2009
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 07-50227 U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. CR-05-00680-DDP
v.
MEMORANDUM *
RAMIN SHIRAZI, a/k/a RAMIN
KANDALCHI SHIRAZI, RAMIN
KANDACHI, and RAMIN SHIRAZI
KANDALCHI,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted December 11, 2009**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Before: HALL and SILVERMAN, Circuit Judges, and CONLON, *** District
Judge.
Ramin Shirazi appeals the 63-month sentence he received after pleading
guilty to two counts of bank robbery in violation of 18 U.S.C. § 2113(a). The
district court counted a state vehicle theft conviction as criminal history rather than
relevant conduct under the advisory sentencing guidelines. The vehicle theft
conviction increased Shirazi’s criminal history category to III and yielded an
advisory guideline range of 63 to 78 months. We have jurisdiction pursuant to 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291. The district court’s determination that the
vehicle theft conviction is a prior sentence for enhancement purposes is reviewed
de novo. United States v. Cruz-Gramajo, 570 F.3d 1162, 1167 (9th Cir. 2009).
We affirm.
The computation of a sentencing guideline range includes criminal history
points for most prior sentences. U.S.S.G. §§ 4A1.1, 4A1.2; Cruz-Gramajo, 570
F.3d at 1167. However, a prior sentence is not included in the criminal history
calculation if the earlier conviction was for relevant conduct that was part of the
offense currently before the court for sentencing. U.S.S.G. § 4A1.2(a)(1) and cmt.
n.1; Cruz-Gramajo, 570 F.3d at 1167-68. Relevant conduct includes actions that
***
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
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are part of the same course of conduct with respect to offenses involving
substantially the same harm; conduct that is a specific offense characteristic, cross-
reference, or adjustment to the offense under consideration for sentencing; offenses
that are grouped under § 3D1.2(d) to calculate the offense level; or offenses that
occur during the commission of, in preparation for, or in the course of attempting
to avoid detection or responsibility for the offense under consideration for
sentencing. U.S.S.G. §§ 1B1.3(a)(1) and (2); Cruz-Gramajo, 570 F.3d at 1168.
Shirazi’s vehicle theft does not involve the same harm as his bank robberies,
and the vehicle theft is not sufficiently related to the bank robberies to constitute
the same course of conduct. U.S.S.G. §§ 1B1.3(a)(2), 3D1.2(d). The vehicle theft
conviction is for stealing his employer’s van on April 18, 2005. He robbed the
banks on May 11 and 18, 2005. Shirazi argues without record support that he used
the stolen van to rob the banks. Even if that were the case, the vehicle theft and
bank robberies occurred a month apart, involve different victims, and are entirely
different crimes. Id. § 1B1.3 cmt. n.9(B); United States v. Ladum, 141 F.3d 1328,
1347-48 (9th Cir. 1998). A temporal link between the crimes alone is insufficient
to establish Shirazi stole the van during, in preparation for, or in the course of
attempting to avoid detection for the bank robberies. U.S.S.G. § 1B1.3(a)(1);
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Cruz-Gramajo, 570 F.3d at 1172. The district court did not err in including the
vehicle theft conviction as part of Shirazi’s criminal history.
AFFIRMED.
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