927 F2d 611 United States v. Melville

927 F.2d 611

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 90-10171.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 14, 1991.
Decided March 6, 1991.

Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding.



Before FLETCHER, WILLIAM A. NORRIS and TROTT, Circuit Judges.

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Robert Stewart Melville appeals his conviction for conspiracy to possess, and possession of, counterfeit United States currency. 18 U.S.C. Secs. 2, 371, 472 (1988). We affirm.


* Sufficiency of the Evidence


Melville claims the evidence was insufficient to support the jury's guilty verdict.


"The sufficiency of the evidence is reviewed in the light most favorable to the Government to determine whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Plache, 913 F.2d 1375, 1381 (9th Cir.1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).


Melville argues the only real evidence against him was the uncorroborated testimony of his accomplice, Dorene Peterson, and that this evidence was insufficient to support his conviction. Peterson's testimony was amply corroborated. Even if it had not been corroborated, her testimony still would have supported the verdict because it was credible and substantial. See United States v. Lopez, 803 F.2d 969, 973 (9th Cir.1986), cert. denied, 481 U.S. 1030 (1987) ("The uncorroborated testimony of an accomplice is enough to sustain a conviction unless the testimony is incredible or unsubstantial on its face.").


The District Court's Evidentiary Decisions


A. Melville's Prior Involvement with Counterfeit Money

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Melville contends Peterson's testimony concerning his prior involvement with counterfeit money improperly was admitted as "character evidence" in violation of FRE 404(b), and that it was irrelevant under FRE 403. See Fed.R.Evid. 404(b), 403.


Peterson's testimony was not admitted as character evidence. The district court instructed the jury to consider her testimony solely for the purpose of deciding whether Melville possessed the requisite knowledge or intent, and her testimony was probative of those elements. No abuse of discretion occurred. See United States v. Spillone, 879 F.2d 514, 518-19 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 210 (1990).

B. Melville's Disconnection of the Odometer


Melville argues Peterson's testimony concerning his disconnection of the odometer improperly was admitted as "other acts" evidence and that it was irrelevant.


Melville's claim is without merit. Conduct that is closely intertwined with the crimes charged does not constitute "other acts" evidence. See United States v. Mundi, 892 F.2d 817, 820 (9th Cir.1989); United States v. Soliman, 813 F.2d 277, 279 (9th Cir.1987). In the present case, Melville disconnected the odometer cable while committing the offenses charged.


In addition, we conclude the probative value of the evidence outweighed any prejudicial effect it may have had. See Fed.R.Evid. 403. Peterson's testimony explained why their rental car clocked only five hundred miles though the couple had traveled a far greater distance in committing their crimes.


The Sentencing Guidelines Issues

A. The Upward Departure


Melville challenges the district court's decision to depart upward from the Guidelines based on his Canadian convictions.


In United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir.), reh'g en banc granted, 909 F.2d 1370 (1990), we set out a five-step test for determining the appropriateness of departures:


(1) whether the district judge adequately identified the "aggravating or mitigating circumstance" (hereinafter "circumstance");


(2) whether the identified circumstance actually existed;


(3) whether the circumstance was adequately taken into consideration by the Sentencing Commission,


(4) if not, whether the circumstance should result in departure; and,


(5) whether the extent or degree of departure was unreasonable.


Accord United States v. Montenegro-Rojo, 908 F.2d 425, 427 (9th Cir.1990).


The district court identified the aggravating circumstance as Melville's three Canadian convictions, and these convictions have been documented. Thus, steps one and two are not in issue.


Melville claims steps three and four of the Lira-Barraza test are not satisfied. His claim is baseless because the Guidelines expressly contemplate that foreign convictions may qualify as an aggravating circumstance justifying departure. See U.S.S.G. Secs. 4A1.2(h), 4A1.3; United States v. Soliman, 889 F.2d 441, 444 (2d Cir.1989); United States v. Rodriquez, 882 F.2d 1059, 1067 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144 (1990).


The final question under Lira-Barraza is "whether the extent or degree of departure was unreasonable." Lira-Barraza, 897 F.2d at 983. The Guidelines provide a method for calculating departures where the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct. See U.S.S.G. Sec. 4A1.3. Although section 4A1.2 states that foreign convictions may not influence a defendant's criminal history score, section 4A1.3 provides that departures shall be measured by the method used to calculate that score. See U.S.S.G. Sec. 4A1.3.


The district court followed this method in determining the extent of the departure. It found Melville's Canadian convictions merited five criminal history points under section 4A1.1, thus placing him in Category III for departure purposes. Category III applies when a defendant has been assessed between four and six criminal history points, so the district court's calculation was appropriate. See U.S.S.G. Sec. 5A.


Melville argues his five criminal history points merited a sentence in the middle of Category III's sentencing range, and that the district court erred in sentencing him to Category III's maximum term of 27 months imprisonment. We lack jurisdiction, however, to review sentencing adjustments within the applicable guideline range. United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990).

B. The Refusal to Depart Downward


Melville appears to argue he was entitled to a downward departure because of his advanced age and because he rendered "substantial" assistance to the authorities. We have held, however, that 18 U.S.C. Sec. 3742(a) (1988) precludes appellate review of a district court's discretionary refusal to depart downward from the guidelines. United States v. Morales, 898 F.2d 99, 102-03 (9th Cir.1990) (citations omitted); accord Reed, 914 F.2d at 1290. Melville's claims here are thus unreviewable.




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