884 F.2d 1294 (9th Cir. 1989), 88-3208, United States v. Restrepo

Docket Nº:88-3208.
Citation:884 F.2d 1294
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Diego RESTREPO, Defendant-Appellant.
Case Date:September 12, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1294

884 F.2d 1294 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,


Diego RESTREPO, Defendant-Appellant.

No. 88-3208.

United States Court of Appeals, Ninth Circuit

September 12, 1989

Argued and Submitted Aug. 7, 1989.

As Amended Oct. 4, 1989.

Page 1295

David S. Marshall, Seattle, Wash., for defendant-appellant.

Michael R. Spaan, U.S. Atty., Stephen Cooper, Asst. U.S. Atty., Fairbanks, Alaska, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska.

Before WRIGHT, NORRIS and BEEZER, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

We consider whether enhancing the base sentencing level because of possession of a firearm during the commission of a drug offense is proper under the Sentencing Guidelines.


A paid informant bought cocaine from Diego Restrepo at Restrepo's residence in Fairbanks, Alaska. In a search of the home, agents found cocaine, packaging material, bags, bottles of inositol for mixing with cocaine for distribution, a portable scale, and grinders for processing cocaine. They found scales and other equipment in several places in the residence, including the bedroom, and $1,136 in Restrepo's robe. A loaded .32 caliber automatic pistol was discovered hidden between the mattress and box spring of his bed.

Restrepo was charged with three counts of distribution of cocaine and one count of possession with intent to distribute, violations of 21 U.S.C. Sec. 841(a)(1) (1982). At the conclusion of the evidence at trial, the judge instructed the jury that it could consider evidence of prior criminal acts, not to prove Restrepo did the acts charged, but to prove his state of mind. The jury convicted him on all counts.

The court sentenced him under the Sentencing Guidelines. He was convicted of offenses with a base level of 22, which carries a sentencing range of 41 to 51 months. The court increased the base sentence by two levels under United States Sentencing Commission, Guidelines Manual Sec. 2D1.1(b)(1) (1988) [hereinafter Sentencing Guidelines], after finding that Restrepo had possessed a firearm during the commission of one or more of the offenses. The additional two levels increased his sentencing range to 51 to 63 months. The court imposed a sentence of 56 months for each count, to be served concurrently. It also required restitution...

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