OpenJurist

919 F2d 146 United States v. Gonzalez

919 F.2d 146

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 89-30323.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 16, 1990.*
Decided Nov. 20, 1990.

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Carlos Rodriguez Gonzalez appeals his sentence after the district court granted Gonzalez's motion for reconsideration and resentenced him. Gonzalez contends that the district court erred in not specifying its reasons for an upward departure from the range recommended by the Sentencing Guidelines. He also argues that the district court relied on improper factors in departing upward. We vacate Gonzalez's sentence, and remand the case for resentencing.

3

* Gonzalez was convicted on one count of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. Sec. 846, and sentenced to 12 years incarceration on January 19, 1989. On March 13, 1989, Gonzalez filed an untimely pro se notice of appeal which the district court construed as a motion for reconsideration. The court granted the motion on the ground that Gonzalez should have been sentenced under the Guidelines. As a further basis for resentencing, the parties agreed that Gonzalez was not informed of his right to appeal the initial sentence, as required by Fed.R.Crim.P. 32(a)(2). Accordingly, the district court resentenced Gonzalez on October 5, 1989, ostensibly in conformity with the Sentencing Guidelines and Rule 32.

4

We will review Gonzalez's pro se motion for reconsideration as a motion pursuant to 28 U.S.C. Sec. 2255. Cf. United States v. Eatinger, 902 F.2d 1383, 1384-85 (9th Cir.1990) (prisoner entitled to resentencing under Guidelines may seek remedy under section 2255); United States v. Garcia-Flores, 906 F.2d 147, 148-49 (5th Cir.1990) (indicating that relief under section 2255 is available when prisoner who pleaded guilty was not informed of right to appeal sentence, as required by Rule 32(a)(2)). We thus have jurisdiction pursuant to 28 U.S.C. Secs. 1291, 2253. See Shah v. United States, 878 F.2d 1156, 1157 (9th Cir.), cert. denied, 110 S.Ct. 195 (1989).

II

5

In resentencing Gonzalez to a term of imprisonment of 92 months, the district court apparently departed upward from the range prescribed by the Sentencing Guidelines.1 In making this departure, the court offered the following explanation:

6

For the record, to the extent that [the sentence] constitutes a departure, the Court will also indicate that it took into consideration as a basis for that departure, the matters reviewed in the report, particularly the amounts involved--particularly the fact that Congress within a period of months established a mandatory minimum of ten years, which gives guidance to the Court concerning a minimum sentence.

7

On de novo review, see United States v. Gomez, 901 F.2d 728, 729 (9th Cir.1990), it appears that this explanation does not fulfill the mandate of 18 U.S.C. Sec. 3553. The district court made no finding that any of the factors mentioned were not adequately considered by the Sentencing Commission in formulating the Guidelines. See 18 U.S.C. Sec. 3553(b), (c)(2). This deficiency alone is sufficient to warrant remand for resentencing. See United States v. Lira-Barraza, 897 F.2d 981, 983 & n. 3 (9th Cir.), rehearing en banc granted, 909 F.2d 1370 (9th Cir.1990); United States v. Michel, 876 F.2d 784, 786 (9th Cir.1989) ("[a]bsent such a finding, departure is not permitted").

8

Furthermore, we note that a general reference to the presentence report cannot suffice as a reason for upward departure when the report itself does not consider the possibility of departing upward from the range recommended by the Guidelines. Cf. United States v. Gayou, 901 F.2d 746, 747-49 (9th Cir.1990) (where district court incorporated presentence report as a basis for sentence, and report recommended an upward departure, reasons for departure set forth in report will be considered on appeal in deciding whether departure was warranted).2 Consideration of an improper factor in departing upward usually necessitates remand for resentencing. See United States v. Nuno-Para, 877 F.2d 1409, 1414 (9th Cir.1989).

9

We also observe that one factor mentioned by the district court, the amount of narcotics involved, actually appears to have been taken into account by the Sentencing Commission in promulgating the sentencing guideline applicable in cases of conspiracy to distribute a controlled substance--the offense involved here. See U.S.S.G. Sec. 2D1.1(a)(3) (table indicating offense levels for violations of 21 U.S.C. Sec. 841, based in part on quantity of controlled substance involved); id. Sec. 2D1.4 & comment. (indicating that section 2D1.1 and its Drug Quantity Table apply in determining offense levels for violations of 21 U.S.C. Sec. 846); cf. United States v. Bennett, 900 F.2d 204, 206 (9th Cir.1990) (allowing upward departure based on amount of narcotic where applicable guideline did not take quantity into account, even though another guideline--section 2D1.1--does take quantity into account).3 Departure on this basis therefore appears improper because the recommended sentence takes drug quantity into account. See Nuno-Para, 877 F.2d at 1413-14. For the reasons discussed above, we vacate and remand for resentencing.4

10

VACATED and REMANDED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

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

Gonzalez contends that the district court departed from a recommended range of 70-87 months. This range appears in the presentence report of December 22, 1988, and is the only range mentioned in the transcript of the October 5, 1989 resentencing hearing. The government acquiesces in Gonzalez's contention, even though a supplemental memorandum to the presentence report dated August 22, 1989, indicates a range of 92-115 months

2

The presentence report of December 22, 1988 does not suggest an upward departure. Although the supplemental memorandum of August 22, 1989 does make such a suggestion, it appears that in characterizing Gonzalez's October 5, 1989 sentence as a departure, the district court disregarded this memorandum. Thus, we assume that the court's reference to the presentence report in explaining its departure refers only to the report of December 22, 1988

3

After Gonzalez was resentenced on October 5, 1989, the Drug Quantity Table set out in section 2D1.1 was amended, effective November 1, 1989. See U.S.S.G.App. C, amend. 125. Both the new and old tables take drug quantity into account

4

In view of the inconsistent sentencing ranges recommended in the two presentence reports, the district court should determine on remand the correct range recommended by the Guidelines. Of course, if Gonzalez is resentenced within the correct range, no explanation for departure is necessary. See 18 U.S.C. Sec. 3553(c)(2)