972 F.2d 1345
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
David William HERRIFORD, Defendant-Appellant.
No. 91-10575.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 19, 1992.*
Decided Aug. 26, 1992.
Before KOZINSKI and THOMPSON, Circuit Judges, and VON DER HEYDT, Senior District Judge.**
MEMORANDUM***
Identification of U.S.S.G. § 4A1.3 as a basis for upward departure in both the presentence report and the probation officer's memorandum provided adequate notice of a possible upward departure. See United States v. Brady, 928 F.2d 844, 847 (9th Cir.1991); United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir.1989).
The departure was valid under United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991). Section 4A1.3 furnished a "legal authority to depart." Id. at 746. There was no "clear error [in the] factual findings supporting the existence of the ... circumstance[s]" supporting the departure--defendant's record was replete with past crimes not reflected in his criminal history score. Id. at 746-47. And the district court did not abuse its discretion in adjusting the criminal history category from II to III, a departure which added 3 months to what would have been a 21 month sentence. Id. at 747-51.
Finally, defendant adduced no evidence supporting his contention that the district court erred in finding he intended to defraud the bankruptcy estate. Herriford transferred, without payment, land worth at least $50,000 to Cindy Allen, who afterwards called the United States Trustee and admitted that the transfer was a sham. An inevitable conclusion that Herriford intended to defraud arises, and he has done nothing to dispel it.
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
The Honorable James A. von der Heydt, Senior United States District Judge for the District of Alaska, sitting by designation
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