94 F.3d 592 (9th Cir. 1996), 95-30259, United States v. Castaneda

Docket Nº:95-30259.
Citation:94 F.3d 592
Party Name:Serv. 6443, 96 Daily Journal D.A.R. 10,593 UNITED STATES of America, Plaintiff-Appellee, v. Ramon Montes CASTANEDA, Defendant-Appellant.
Case Date:August 29, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 592

94 F.3d 592 (9th Cir. 1996)

Serv. 6443,

96 Daily Journal D.A.R. 10,593

UNITED STATES of America, Plaintiff-Appellee,

v.

Ramon Montes CASTANEDA, Defendant-Appellant.

No. 95-30259.

United States Court of Appeals, Ninth Circuit

August 29, 1996

Submitted Aug. 5, 1996.[*]

Page 593

Michael Nance, Nance & Iaria, Seattle, Washington, for defendant-appellant.

Bruce F. Miyake, Assistant United States Attorney, Seattle, Washington, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. CR-95-173-2-JCC.

Before: WRIGHT, BEEZER and O'SCANNLAIN, Circuit Judges.

BEEZER, Circuit Judge:

This appeal requires us to review the imposition of a mandatory minimum sentence where the district court has found sentencing entrapment.

Ramon Montes Castaneda timely appeals his conviction and sentence for conspiracy to distribute cocaine and possession of cocaine with intent to distribute. We have jurisdiction, 28 U.S.C. § 1291, and we vacate the sentence and remand for resentencing. We affirm Castaneda's conviction.

I

Working with Agent Robert Kursar of the Drug Enforcement Agency ("DEA"), confidential informants Richard Orestad and Darrell Beck initiated purchases of cocaine through Theresa Sullivan, who lived with Orestad and Beck. Until her arrest, Sullivan did not know that Kursar was a DEA agent.

According to Sullivan's trial testimony, Castaneda supplied her with cocaine on numerous occasions. Sullivan and Orestad testified that, after one failed transaction, Castaneda agreed to provide them with one kilogram of cocaine. Orestad testified that he went to Castaneda's residence, where he met Castaneda, Graciela Becerra and Jose Abel Ramirez. Castaneda opened Becerra's purse and showed Orestad one kilogram of cocaine inside.

According to Orestad, he told Castaneda to meet him at his house to complete the transaction and then informed Agent Kursar. After Castaneda, Ramirez and Becerra arrived at Orestad and Sullivan's residence, Orestad left to meet Kursar, who was posing as a buyer for a wealthy Canadian. Kursar then telephoned Sullivan and told her that the deal was off. Sullivan tried to persuade Kursar to complete the transaction, stating that Orestad had given Castaneda title to Orestad's truck as collateral. Kursar refused.

Shortly thereafter, police watching Sullivan's residence saw Castaneda, Sullivan, Ramirez and Becerra depart in Castaneda's vehicle. Marked police cars attempted to stop

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Castaneda. During a two-mile chase, the purse containing the cocaine was thrown from Castaneda's vehicle. When the vehicle was stopped, police arrested Castaneda and found a fictitious title to Orestad's truck. A passerby found the purse and brought it to the police.

At trial, the defense claimed that Orestad had framed Castaneda and his friends by luring them to his residence with the promise of a favorable deal on his truck. The jury found Castaneda guilty of conspiracy to distribute and possession with intent to distribute cocaine.

At the sentencing hearing, the court found that sentencing entrapment had occurred, and the government did not oppose a downward departure from the applicable sentencing guideline range based upon sentencing entrapment. 1 The district court attributed one kilogram of cocaine to Castaneda and imposed the five year statutory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(B)(ii). The court said that it lacked discretion to sentence Castaneda to a term below the statutory minimum. Castaneda timely appealed.

After filing his...

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