904 F2d 711 United States v. Bray

904 F.2d 711

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 89-10163.

United States Court of Appeals, Ninth Circuit.

Submitted June 4, 1990.*
Decided June 13, 1990.

Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.

1

MEMORANDUM**

I.

FACTS

2

On November 10, 1988, Donald Emmerson Bray ("Bray") was charged by grand jury with two counts of bank robbery in violation of 18 U.S.C. Sec. 2113(a) (1988) and one count of interstate transportation of a stolen vehicle in violation of 18 U.S.C. Sec. 2312 (1988). On December 19, 1988, Bray pleaded guilty to the first count of bank robbery and the government dismissed the remaining counts of the indictment and agreed not to prosecute Bray for a third bank robbery offense. The district court sentenced Bray under the United States Sentencing Guidelines ("U.S.S.G.").

3

The officer preparing the Presentence Report calculated Bray's offense level for Count I to be 17 (base level = 18, +1 for robbery of financial institution, -2 for acceptance of responsibility). See U.S.S.G. Secs. 2B3.1(a), 2B3.1(b)(1)(B), 3E1.1(a). The officer then examined Bray's extensive criminal history, which included twelve sets of prior convictions dating from 1951 to 1984 pursuant to U.S.S.G. Secs. 4A1.2(e)(1)-(2),1 and calculated his criminal history score to be 21. This total placed him within criminal history Category VI, the most serious level, applicable where defendant has a score of 13 or higher. Together with his total offense level, this criminal history score resulted in a sentencing guideline range of 51 to 63 months. The Presentence Report recommended a sentence of 63 months, which the district court judge adopted. The sentence also included a term of supervised release and $1,300 restitution to the bank robbed.

4

Appellant asserts that (1) the U.S.S.G. are unconstitutional as ex post facto law in its use of information about prior offenses; (2) the district court misapplied Chapter 4 of the U.S.S.G. by double-counting two terms of incarceration, part of which ran concurrently (one following a 1960 conviction and one following a 1973 conviction). The government responds by arguing that (1) appellant did not raise below any of the issues raised on appeal; (2) appellant abandoned this appeal by failing to support issues with argument; (3) the treatment of prior convictions by the U.S.S.G. does not violate the ex post facto clause; and (4) the U.S.S.G. were not misapplied in this case.

II.

PRESERVATION OF ISSUES FOR APPEAL

5

Appellant did not raise below either of the issues raised before this court. Although he did raise one issue related to the scoring of his criminal history under the U.S.S.G., he withdrew this challenge. Defense counsel stated explicitly before the district court: "I wish to withdraw any challenge to the calculation of Mr. Bray's prior criminal history and we do both want to proceed to judgment and sentencing today."

6

Typically, this court does not consider issues raised for the first time on appeal. See United States v. Edwards, 800 F.2d 878, 884 (9th Cir.1986); United States v. Larios, 640 F.2d 938, 942 (9th Cir.1981). "This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence." Hormel v. Helvering, 312 U.S. 552, 556 (1941). We will review such issues only in exceptional circumstances. Hormel, 312 U.S. at 557; Edwards, 800 F.2d at 884; Larios, 640 F.2d at 942. The appellant has not identified any exceptional circumstances or any factors that would require us to deviate from this well-established principle. In that no such circumstances appear to exist, we affirm the district court's judgment.

7

AFFIRMED.

*

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

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

1

Section 4A1.2(e)(1) provides that the criminal history score tabulation takes into account prior sentences exceeding one year and one month in length if the sentences were imposed within fifteen years of the instant offense or if the defendant was still incarcerated during that period. Section 4A1.2(e)(2) states that any sentence imposed within ten years prior to the commencement of the instant offense is counted