U.S. v. Naranjo, 93-10732

• Decision Date: 10 April 1995
• Docket Number: No. 93-10732,93-10732
• Citation: 52 F.3d 245
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo NARANJO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 245

52 F.3d 245

UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo NARANJO, Defendant-Appellant.

No. 93-10732.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 14, 1994.

Decided April 10, 1995.

William G. Panzer and Dennis Roberts, Oakland, CA, for defendant-appellant.

Leo P. Cunningham, Asst. U.S. Atty., San Jose, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before LAY, ^* PREGERSON, and O'SCANNLAIN, Circuit Judges.

PREGERSON, Circuit Judge:

Appellant Lorenzo Naranjo appeals his sentence under 21 U.S.C. Sec. 841(b)(1)(A)(ii), which imposed a mandatory 10 year term of imprisonment for conspiracy to possess with intent to distribute five or more kilograms of cocaine. Naranjo pled guilty to violating 21 U.S.C. Sec. 846 (conspiracy to possess with intent to distribute cocaine) and 31 U.S.C. Sec. 5324 (cash transaction structured to evade reporting requirements). We have jurisdiction under 28 U.S.C. Sec. 1291 and Rule 4(b) of the Federal Rules of Appellate Procedure.

We vacate the sentence and remand for further proceedings.

I. BACKGROUND

From January to June 1992, Naranjo was under investigation by the Drug Enforcement Administration (DEA) because Richard Strini, a confidential informant for the DEA, and a friend of Naranjo's, told the DEA that Naranjo had been trafficking in narcotics for about the past eight to ten years. ¹ At the DEA's urging, Strini contacted Naranjo almost forty times by telephone from January through nearly the end of May in an attempt to get Naranjo to sell cocaine to Strini. Naranjo rejected all of Strini's requests to sell cocaine to him. ²

After Naranjo rejected Strini's many overtures to sell cocaine, the DEA told Strini to reverse the operation; Strini should now inform Naranjo that he could put Naranjo in contact with people from whom Naranjo could buy cocaine. The DEA directed Strini to suggest to Naranjo a purchase in the ten to twenty kilogram range. Strini told the DEA that Naranjo would never make such a large purchase. When the DEA told Strini to try to persuade Naranjo to buy five or ten kilograms, Strini recommended to the DEA that it set up only a one to two kilogram buy with Naranjo.

During a telephone call in May 1992, Strini first approached Naranjo about his buying cocaine. Naranjo indicated a willingness to buy but said to Strini, "grab me one" (one kilogram) only if the buy can be "fronted" for as long as a week; that is, Naranjo wanted a week before he had to pay for the one kilogram. Strini asked Naranjo how much Naranjo could sell if Naranjo was fronted for 24 hours. Naranjo answered, one-half a kilogram. Because Strini was unable to persuade Naranjo to buy five to ten kilograms of cocaine, the DEA told Strini to persuade Naranjo to meet with the seller. The seller, an undercover DEA agent, would handle the issue of weight.

Naranjo agreed to meet with Strini about a week later to discuss buying cocaine. At this first meeting, Strini introduced Naranjo to the DEA undercover agent Pete Ramirez. Naranjo was surprised by Ramirez's presence because Naranjo thought the meeting would be between just Strini and himself. After some preliminary discussion, Agent Ramirez indicated he wanted to sell Naranjo five kilograms of cocaine now, and five more within a couple of days. Naranjo indicated he did not have the resources to buy five kilograms. At this point, Strini leaned over to Naranjo and said he, Strini, could buy "three maybe four" kilograms from Naranjo. ³

At this same meeting, Naranjo's nephew, Humberto Arguello, later joined Naranjo, Ramirez, and Strini. Arguello apparently said nothing, and before the negotiations had ended, returned to Naranjo's van in the restaurant parking lot. At the conclusion of the meeting, as Naranjo and Ramirez were leaving the restaurant, Naranjo remarked to Ramirez that Arguello was his bodyguard and that Arguello checks to see that everything is all right during a buy.

Naranjo and Arguello had a second meeting with Agent Ramirez two days later. Arguello remained at a table with Naranjo and Ramirez for most of the meeting. At this meeting, Ramirez agreed to sell Naranjo two kilograms of cocaine, at $18,500 per kilogram, and front him three additional kilograms of cocaine to be paid for in three days. With regard to delivery, Ramirez indicated the five kilograms of cocaine would be placed in a vehicle with a secret compartment and Naranjo and Arguello could drive the vehicle away. The vehicle was to be returned when Naranjo paid for the remaining three kilograms.

Several days later, Ramirez telephoned Naranjo to inform him that the cocaine had arrived. Naranjo handed the telephone to Arguello to get instructions for the delivery. Ramirez told Arguello that the delivery would take place the next day at the Mexico Lindo restaurant, and he gave Arguello directions to the restaurant. Ramirez then reiterated to Arguello that the transaction was for five kilograms. Arguello answered "No, no ... for two I tell you." Ramirez repeated "five, right?" to which Arguello answered, "Yes, yes, no but for two, for two days?" Ramirez added, "five tomorrow" and "I will save you five more for one day." Arguello said, "Oh, ok," to both of Ramirez's statements.

The following day, Naranjo and Arguello met Ramirez and a second undercover DEA agent, John Carillo, at the Mexico Lindo restaurant. Naranjo informed Ramirez that he had enough money to pay for only one kilogram of cocaine, but that he could pay for the remaining four kilograms the following morning. Ramirez agreed to go forward with the transaction, now "fronting" Naranjo four kilograms of cocaine. After Arguello paid $18,500 for one kilogram of cocaine to Ramirez, Agent Carillo drove Arguello to a second location to inspect the cocaine. Arguello inspected the cocaine and noted that there were five bags. However, Arguello was dissatisfied that the vehicle did not have a secret compartment, as promised, and he was concerned that he had been followed by an airplane. Arguello returned to the Mexico Lindo restaurant without taking delivery of any of the five kilograms of cocaine.

After Naranjo talked with Arguello, Naranjo made new arrangements with Ramirez for the transfer of the five kilograms of cocaine. Ramirez told Naranjo and Arguello to meet him and Carillo at a designated Burger King for the transfer. Following the arrival of all four parties at the Burger King, Naranjo and Ramirez got out of their vehicles and walked towards the restaurant. Shortly thereafter, Carillo tossed the duffle bag containing the five kilograms of cocaine into Naranjo's van, which had its sliding side door open. ⁴ Naranjo and Arguello were then arrested.

The government then filed a two count information charging Naranjo and Arguello with violating 21 U.S.C. Sec. 846 (conspiracy to possess with intent to distribute cocaine) and charging Naranjo with violating 31 U.S.C. Sec. 5324 (cash transaction structuring). ⁵ Naranjo pled guilty to both counts of the information, pursuant to a plea agreement. However, the plea agreement stated that Naranjo "expressly disagrees as to the amount of cocaine upon which the determination of the mandatory sentence should be based...."

At a single sentencing hearing for Naranjo and Arguello, where no oral testimony was taken, the district court concluded that the evidence presented did not support a finding of "sentencing entrapment." ⁶ Further, the district court found that as to Naranjo, "under all the circumstances treating the transaction as a five-kilogram transaction is appropriate." The district court's finding resulted in Naranjo being sentenced under 21 U.S.C. Sec. 841(b)(1)(A)(ii), which carries a mandatory minimum sentence of ten years. ⁷ The district court's written judgment stated that Naranjo's "[c]riminal history and offenses do not justify a sentence in excess of the mandatory minimum." Thus, Naranjo was sentenced to the mandatory minimum sentence of ten years.

As to Arguello, the district court first noted the telephone conversation between Arguello and Ramirez where "five" was mentioned by Arguello. But the district court then stated, "I'm just not convinced that I know for sure what that means," and concluded that Arguello's "other actions would certainly be consistent with his thinking he was involved in a one- to two-kilogram deal, so I'm going to treat his case as involving two kilograms of cocaine...." The district court thus sentenced Arguello under 21 U.S.C. Sec. 841(b)(1)(B)(ii), which carries a mandatory minimum sentence of five years.

II. ANALYSIS

Naranjo now appeals his sentence on two grounds. First, Naranjo contends that the district court erred when it based Naranjo's sentence on a finding that Naranjo was involved in a five-kilogram cocaine transaction but based Arguello's sentence on a finding that Arguello, Naranjo's sole co-conspirator, was involved in only a two-kilogram cocaine transaction. Second, Naranjo contends the district court erred when it found that the government did not engage in sentencing entrapment.

We review the interpretation and application of the Sentencing Guidelines de novo. United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.1994). Factual findings in the sentencing phase are reviewed for clear error. Id.; United States v. Chapnick, 963 F.2d 224, 226 (9th Cir.1992).

The quantity of drugs for which a defendant is responsible is determined by the court at sentencing. United States v. Becerra, 992 F.2d 960, 966 (9th Cir.1993) (citing United States v. Harrison-Philpot, 978 F.2d 1520, 1523 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2392, 124 L.Ed.2d 294 (1993)). The government has the burden of proving by a preponderance of the evidence the quantity of drugs for which a defendant is responsible. It is this quantity that determines the defendant's base offense level. Id. (citing Harrison...