United States v. Michael Midkiff

972 F.2d 1346 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Michael MIDKIFF, Defendant-Appellant. No. 91-10530. United States Court of Appeals, Ninth Circuit. Submitted July 29, 1992.* Decided Aug. 5, 1992. Before TANG, BEEZER and KOZINSKI, Circuit Judges. [1] MEMORANDUM** [2] Michael Midkiff appeals his sentence under the United States Sentencing Guidelines, following a guilty plea, for unarmed bank robbery in violation of 18 U.S.C. § 2113(a). Midkiff contends that the district court erred by increasing his criminal history score based upon two prior misdemeanor convictions for being under the influence of a controlled substance in violation of California Health and Safety Code § 11550(a). He argues that these prior convictions are equivalent to convictions for public intoxication and should not have been counted in the computation of his criminal history score. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. [3] "We review de novo the district court's determination that a prior conviction falls within the scope of the Sentencing Guidelines." United States v. Martinez, 956 F.2d 891, 892 (9th Cir.1992) (per curiam). In Martinez, we considered the same argument and squarely rejected it. See id. at 893 ("convictions for being under the influence of a controlled substance are not 'similar' to public intoxication ..."). Accordingly, Midkiff's contention lacks merit and the district court properly included the offenses in calculating his criminal history score. See id. [4] AFFIRMED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 [-s-s] ** 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