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United States Of America Vs Roston

No.97-50435

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Cruise Bruise Cases
United States Of America Vs Roston

No.97-50435

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Plaintiff-Appellee,D.C. No.v.CR-88-00162-JMI SCOTT ROBIN ROSTON
OPINION Defendant-Appellant.
Appeal from the United States District Court for the Central District of California
James M. Ideman, District Judge, Presiding
Argued and Submitted January 8, 1999--Pasadena, California
Filed February 16, 1999
Before: Donald P. Lay,* Alfred T. Goodwin, and Mary M. Schroeder, Circuit Judges. Opinion by Judge Goodwin

COUNSEL Diane E. Berley, Berley & DeVito, Woodland Hills, Califor-nia, for the defendant-appellant.Kendra S. McNally, Assistant United States Attorney, LosAngeles, California, for the plaintiff-appellee.

OPINION GOODWIN,

Circuit Judge:
Scott Robin Roston was convicted of second-degree murder in 1989. In his third appeal before this court, Roston argues that the 405-month sentence imposed by the district court, based on a seven-level upward departure from the Sentencing Guidelines, is unwarranted. We have jurisdiction under 28 U.S.C. S 1291, and affirm the sentence of the districtcourt.

FACTS
Roston's history before this court includes two prior appeals with respect to his second-degree murder convictionand sentence. The facts and circumstances of Roston's case have been adequately discussed by this court on prior occasions and therefore need not be repeated here in their entirety.

ANALYSIS
This court has previously considered the district court's departures from the Sentencing Guidelines and remanded with instructions for the court to comply with our ruling inUnited States v. Lira-Barraza, 941 F.2d 746, 751 (9th Cir.1991) (en banc), by explaining "in terms of the structure, standards and policies of the Sentencing Guidelines why itdeparted upward . . . ." Roston I, 986 F.2d at 1294. However,we recognize that Lira-Barraza no longer has the vitality it once had, and therefore review Roston's most recent sentence to determine if the district court's departure and the explanation offered are unreasonable under the circumstances of this case. See Sablan, 114 F.3d at 919 (using a reasonableness standard to evaluate the extent of departure from the Guide-lines); United States v. Beasley, 90 F.3d 400, 403 (9th Cir.1996) ("Lira-Barraza has been effectively overruled. The only relevant inquiry in reviewing Sentencing Guidelines departure cases is whether the trial court abused its discretion in imposing the sentence."). We have previously held that the evidence presented at Roston's trial would justify a departure from the Sentencing Guidelines under S 5K2.8 (extreme conduct). 1 Roston I, 986F.2d at 1293. Therefore, we need only consider whether thedegree of the district court's departure was reasonable. SeeSablan, 114 F.3d at 917.

At the sentencing hearing, the court observed that the forensic evidence collected from the ship's upper deck, as well as the condition of Mrs. Roston's body, showed that Mrs.Roston was severely beaten and strangled before her body was thrown overboard. The evidence also showed that Mrs.Roston never regained consciousness, and drowned without a struggle. Based on this evidence, the court determined that the circumstances of this crime were exceptional, and the judge observed that he had never seen a case in which a honeymoon ended in such a chilling and heartless manner.

In light of the severity of the crime and the unusually cruel circumstances of Mrs. Roston's death, the court found that an upward departure of seven levels was appropriate. We acknowledge that a seven-level departure from the Sentencing Guidelines is substantial, and should not be lightly taken. However, the district court was well-positioned to determine if the facts of this case were unusually cruel or brutal, as compared to other second-degree murder cases. It isappropriate to defer to the district court's assessment in thiscase. See Koon, 116 S. Ct. at 2047 ("District courts have aninstitutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do."); Sablan, 114 F.3dat 916 (quoting United States v. Koon). We also agree that the facts of this case are exceptional.

CONCLUSION
The district court did not abuse its discretion by departing upward from the Sentencing Guidelines in this case. The evidence in this case clearly supports a departure from theSentencing Guidelines under S 5K2.8 ("extreme conduct"),and the resulting 405-month term of incarceration is not an unreasonable punishment for a man who killed his wife in such a barbaric manner. The sentence of the district court is AFFIRMED.

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