United States v. Leonard

MEMORANDUM ^***

The Government submits that the district court correctly calculated the unadjusted criminal history category and then made an upward departure because it under-represented Defendant’s history of criminal activity. While it is possible the district court made this mental journey, it did not document it in the record. We decline to speculate as to what the district court may have been thinking. See e.g., United States v. Fifield, 432 F.3d 1056, 1065 n. 9 (9th Cir.2005).

However, the error was harmless as it clearly did not affect the selection of the sentence. See Williams v. United, States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992); United States v. Cantrell, 433 F.3d 1269, 1280 n. 4 (9th Cir.2006). The district court made this explicit on the record: “it makes no difference, even if the Court should treat it as a category 5, the Court still views this as a case that merits a 21-month sentence under 3553, irrespective of the Guidelines.” ¹

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . Appellant’s recent citation to United States v. Langford, 516 F.3d 205 (3d Cir.2008), is inapposite. Although the court rejected a presumption of harmless error where an actual sentence falls in the overlap between the correct and miscalculated sentencing ranges, the court distinguished circumstances where the record clearly demonstrates that the error would not have affected the sentence. Langford, 516 F.3d at 217-18. Here, it is abundantly clear from the record that Appellant would have received a 21-month sentence whether he was placed in category 5 or 6.