U.S. v. Salazar, 92-50506
| Decision Date | 23 September 1993 |
| Docket Number | No. 92-50506,92-50506 |
| Citation | 5 F.3d 445 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John SALAZAR, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank T. Vecchione, Asst. Federal Public Defender, San Diego, CA, for defendant-appellant.
Patrick K. O'Toole, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge Presiding.
Before: REAVLEY, * PREGERSON, and FERNANDEZ, Circuit Judges.
This is another sentencing appeal. John Salazar, while an inspector at a port of entry from Mexico, allowed vans containing 1,615 kilograms of cocaine to pass through his inspection lane. He argues that his sentence should not have been computed on the cocaine volume for the reason that he agreed to favor importation of marijuana, but not cocaine. We reject his argument and affirm.
Salazar pleaded guilty to conspiring to import a controlled substance and to official corruption. There is no fact dispute. From July, 1990, through July, 1991, Salazar accepted bribes in exchange for allowing vehicles containing drugs to enter the United States through his inspection lanes. On June 20, 1991, he allowed two vans through his inspection lane. Federal agents searched the vans later and found secreted inside 170 kilograms of marijuana and 1615 kilograms of cocaine. On this record we assume that Salazar agreed to allow the importation of marijuana, but knew nothing of the cocaine.
In the sentencing the district court began with 42 base offense points by considering only the base offense of importation of more than 1500 kilograms of cocaine. U.S.S.G. Sec. 2D1.1(a)(3) (Nov. 1991). Salazar contends that the cocaine should be disregarded, because he neither knew nor had any reasonable expectation of the importation of any drug other than marijuana. He cites cases where the conspiracy was never completed or where coconspirators committed offenses without the participation or expectation of the defendants. The conduct for which a conspirator is accountable "includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant." Id. Sec. 1B1.3, comment (n. 1).
The expansion of defendant's accountability due to the relevant conduct of coconspirators is not what the district court had before it in this sentencing. As the 1992 clarifying change to Guidelines Notes indicates, ...
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