923 F2d 863 United States v. Brile

923 F.2d 863

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Howard Walter BRILE, Defendant-Appellant.

No. 90-50119.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 16, 1990.*
Decided Jan. 22, 1991.

Before JAMES R. BROWNING, BEEZER and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Appellant Howard Walter Brile was convicted of conspiring to manufacture methamphetamine and possess methamphetamine with intent to distribute in violation of 21 U.S.C. Secs. 846 & 841(a)(1). He was sentenced under the United States Sentencing Guidelines to 108 months in custody, a sentence in the middle of the 97-121 month range for an offense level of 28 and a criminal history category of III. Brile appeals his sentence.

3

Brile first argues that his sentence was imposed in violation of law because his codefendants were sentenced to disparate terms. Yet the district court sentenced Brile and his codefendants within the applicable guideline ranges as required by 18 U.S.C. Sec. 3553(b). It is true that Brile was sentenced in the middle of his range while his codefendants were sentenced at the bottom of their ranges, but unless a range exceeds 24 months a judge need not specify the reasons for sentencing at a particular point within the range. 18 U.S.C. Sec. 3553(c)(1). Thus, Brile has not shown that the district court acted outside of its authority under 28 U.S.C. Sec. 3553 in sentencing him to 108 months.

4

Brile also points out that the purpose of the Sentencing Guidelines is to eliminate sentencing disparity. Congress stated that one purpose of the United States Sentencing Commission is to establish sentencing policies that "avoid[ ] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct." 28 U.S.C. Sec. 991(b)(1)(B). Brile's sentence did not violate this principle because he and his codefendants did not have similar records. The primary reason for the difference in their sentences was that both of Brile's codefendants had criminal history categories of I, while Brile's category was III.

5

Brile's second argument is that the district court incorrectly computed his criminal history category by counting a prior conviction for failure to appear on a charge of driving without valid registration. He contends that it is essentially a conviction for contempt of court and that such a conviction should be excluded under U.S.S.G. Sec. 4A1.2(c)(1). But that guideline provides that convictions for contempt of court are counted if "the sentence was a term of probation of at least one year." Brile received a sentence of one year of probation for his failure to appear, so it was proper to count this conviction.

6

In addition, even if the district court had not counted the conviction, Brile's criminal history category would not have been affected. Category III is for defendants with four, five, or six criminal history points. Brile had six points altogether, and the contempt conviction was only one of those points. Without that conviction he still would have had five points, and his criminal history category still would have been III. Therefore, Brile has not demonstrated any prejudicial error in the computation of his criminal history category.

7

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

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