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United States v. Grob

November 10, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JEFFREY DOUGLAS GROB, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding, D.C. No. 9:08-cr-00036-DWM-1.

The opinion of the court was delivered by: Wardlaw, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted May 4, 2010 -- Seattle, Washington

Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges, and Richard Mills, Senior District Judge.*fn1

OPINION

Jeffrey Grob, who was sentenced to 37 months imprisonment following his conviction of one count of cyberstalking in violation of 18 U.S.C. § 2261A(2)(B), appeals his sentence, arguing that the district court's criminal history calculation improperly included a prior misdemeanor conviction for criminal mischief. Because Grob's prior Montana criminal mischief conviction should not have been counted under the applicable sentencing guideline, U.S.S.G. § 4A1.2(c), the district court committed procedural error. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) ("It would be procedural error for a district court to fail to calculate-or to calculate incorrectly-the Guidelines range.") (citing Gall v. United States, 552 U.S. 38, 51 (2007)). We therefore vacate Grob's sentence and remand to the district court for resentencing.

I. BACKGROUND

Jeffrey Grob's girlfriend broke up with him during the summer of 2007 after she suffered a miscarriage. To put it mildly, Grob did not take the end of either the pregnancy or the relationship well. Beginning in October of 2007, Grob sent his ex-girlfriend twenty-two threatening e-mails and fifty threatening text messages. Illustrative of the content of these threats is an excerpt from the text message Grob sent on November 27, 2007, with the subject heading "I'm going to slit your throat":

If you ever come back to Montana again I am going to slit your throat. I am not even kidding. It would make be fill [sic] so good to see you bleed as you gasp for air. I hope your are [sic] ready for retribution, because it is coming. You are going down bitch.

Photographs of dead and dismembered women accompanied some messages. Grob went so far as to attach a photograph of a dead infant to an e-mail entitled "OMG our baby." In an e-mail entitled "I can't believe you killed our baby," sent on November 12, 2007, Grob wrote that he was not going away and was "not going to forget about the horrible shit you did to me." "Vengeance," he added, "will be mine. I will get you even if it is the last thing I do."

Having reason to fear for her life, Grob's ex-girlfriend contacted law enforcement. When officers interviewed Grob, he initially denied sending the messages, but eventually admitted he sent them to "scare" his ex-girlfriend. Grob was indicted for cyberstalking in violation of 18 U.S.C. § 2261A(2)(B), and was granted pretrial release. Grob's pretrial release was revoked, however, on October 17, 2008, due to his arrest for public intoxication and carrying a concealed weapon. Grob's subsequent conduct was far from exemplary: while in federal custody, for example, he was caught in possession of a homemade knife fashioned out of a razor blade.

Grob ultimately pled guilty to one count of cyberstalking. In the Presentence Investigation Report (PSR), the United States Probation Office recommended a base offense level of nineteen and a criminal history score of four, resulting in a Criminal History Category of III. One of the counted convictions was for vandalizing a house Grob had rented in Flathead County, Montana. In that case, Grob admitted that he intentionally trashed the house in retaliation against his landlord, who had contacted police to break up a party Grob was giving and who later turned off Grob's power and water. Grob was convicted of criminal mischief in violation of Montana Code Annotated § 45-6-101, fined $130, and ordered to pay a court fee of $80 and restitution of $750.

Over Grob's objections, the district court adopted the PSR's calculation of the criminal history score, which included the criminal mischief conviction, and determined an advisory sentencing range of thirty-seven to forty-six months. Without inclusion of the criminal mischief conviction, the guideline range would have been thirty-three to forty-one months. The court imposed a sentence of incarceration of thirty-seven months, and Grob timely appeals.

II. DISCUSSION

We review de novo the district court's inclusion of a prior conviction in the Sentencing Guidelines criminal history calculation. United States v. Bays, 589 F.3d 1035, 1037 (9th Cir. 2009).

[1] As a general rule, sentences for prior misdemeanor or petty convictions are counted in assigning criminal history points. U.S.S.G. § 4A1.2(c) (2007). Under U.S.S.G. § 4A1.2(c), however, in order "to screen out past conduct which is of such minor significance that it is not relevant to the goals of sentencing," United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991); see also U.S. Sentencing Guidelines Manual supp. to app. C at 239 (2009), certain enumerated prior offenses and offenses "similar to [those enumerated offenses], by whatever name they are known," are not counted unless: "(A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense," U.S.S.G. § 4A1.2(c); see also United States v. Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir. 2005); United States v. Lopez-Pastrana, 244 F.3d 1025, 1027 (9th Cir. 2001).

[2] Grob was convicted in Montana of committing criminal mischief in 2000. See Mont. Code Ann. § 45-6-101 (2009). Criminal mischief is not an enumerated offense under U.S.S.G. § 4A1.2(c)(1). If, however, criminal mischief under Montana law is "similar to" the offense of disorderly conduct, which is enumerated in § 4A1.2(c)(1), then Grob's sentence for criminal ...


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