U.S. v. Zamora, 93-10311

• Decision Date: 06 October 1994
• Docket Number: No. 93-10311,93-10311
• Citation: 37 F.3d 531
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cesar ZAMORA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 531

37 F.3d 531

UNITED STATES of America, Plaintiff-Appellee, v. Cesar ZAMORA, Defendant-Appellant.

No. 93-10311.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 17, 1994.

Decided Oct. 6, 1994.

Patrick M. Mooney, Mooney & Boetsch, Reno, NV, for defendant-appellant.

Daniel G. Bogden and Robert A. Bork, Asst. U.S. Attys., Reno, NV, for plaintiff-appellee.

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

Before POOLE, CANBY, and RYMER, Circuit Judges.

Opinion by Judge CANBY; Dissent by Judge RYMER.

CANBY, Circuit Judge:

Cesar Zamora appeals a five-level upward departure from the applicable guideline range in his sentence for distribution of cocaine and possession of cocaine with intent to distribute. We vacate his sentence and remand for resentencing.

BACKGROUND

On the evening of June 3, 1992, Zamora and several accomplices gathered in the parking lot of a Motel 6 in Reno, Nevada, to carry out their end of an agreement to supply three kilograms of cocaine for $22,500 per kilogram. Unfortunately for Zamora and his companions, their prospective buyers were agents of the Drug Enforcement Administration (DEA). After verifying that Zamora had the cocaine in his possession, the DEA agents revealed themselves and arrested him along with his accomplices, seizing a nine millimeter pistol found on Zamora's person, and three kilogram-sized bricks of what they thought was cocaine. Analysis of the bricks at the DEA crime laboratory in San Francisco revealed, however, that Zamora had attempted to cheat the agents; they had seized what in fact were three bricks of sawdust that had been slightly hollowed, and which contained a total of only about 25 grams of Zamora pleaded guilty to one count of distribution of cocaine, one count of possession of cocaine with intent to distribute, and one count of carrying a firearm in connection with a drug trafficking crime. At Zamora's sentencing on the drug counts, the district court departed five levels upward from the applicable guideline range, stating that the departure was warranted because there is a greater likelihood of violence during an attempted drug fraud than in an honest drug sale. To compute the extent of the departure, the district court focused on the difference between the value of the cocaine Zamora agreed to sell and the value of the cocaine he delivered, and analogized to the guidelines pertaining to fraud, U.S.S.G. Sec. 2F1.1. This calculation produced a five-level upward departure. After adjusting downward for acceptance of responsibility, the court arrived at Zamora's sentence of 25 months, 9 months more than the maximum allowed by the applicable guideline range. With the addition of the mandatory five year sentence for his conviction of the firearms count under 18 U.S.C. Sec. 924(c)(1), Zamora's total sentence came to 85 months.

cocaine inserted within the bricks but not mixed in with the sawdust.

DISCUSSION

This case is an unusual one; the defendant has been subjected to an upward departure because he sold a lesser amount of drugs than the buyers bargained for. ¹ His upward departure was measured by the fraud scale, yet it is difficult to see the public interest in the prevention of fraud against drug buyers, at least where that fraud consists in selling a smaller amount of drugs than the contract specified. Doubtless understanding this fact, the district judge did not base the departure on the deception itself (despite the fraud measurement of the departure), but on the danger of violence associated with a fraudulent drug sale. We review the upward departure, therefore, as one grounded on danger alone.

In reviewing the district court's decision to depart upward from the applicable guideline range, we apply the three part test announced in United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991) (en banc). First, we review de novo the district court's identification of an aggravating circumstance of a kind or degree not adequately taken into account by the Sentencing Commission in formulating the guidelines. Id. at 746. Absent such a circumstance, the district court lacked the legal authority to depart, and we must reverse. Id. Second, we review the district court's underlying factual findings for clear error. Id. If the district court's decision passes these first two hurdles, we last must determine whether the extent of departure from the guidelines is reasonable. Id. at 747.

Focusing on the first prong of that test, Zamora argues that the district court lacked the legal authority to depart because the danger attending an attempted drug rip-off is not a circumstance of a kind or degree not taken into account by the guidelines. We agree. In addition to his sentence on the drug charges, Zamora was sentenced to 5 years in prison pursuant to 18 U.S.C. Sec. 924(c)(1)--nearly quadrupling what otherwise would have been his sentence. The mandatory sentencing provisions of section 924 exist because the possession of a gun during a drug trafficking offense increases the risk of violence. See Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 2050, 2060, 113 S.Ct. 2050 (1993); cf. U.S.S.G. Sec. 2D1.1(b)(1) and comment (n. 3). The district court evidently viewed this risk as distinct from the risk posed by fraudulent drug sales, and thus concluded that it could depart upward.

Possession of a gun, however, is dangerous precisely--and only--because it may be used when one drug trafficker tries to cheat or rob another or when law enforcement officials try to apprehend a drug trafficker. Cf. United States v. Martinez, 912 The fact that an attempted fraud occurs in any given transaction adds little, if anything, to the risk already reflected in section 924's mandatory sentencing provisions. See U.S.S.G. Sec. 5K2.0, p.s.; United States v. Luscier, 983 F.2d 1507, 1513 (9th Cir.1993) (departure warranted only if factor is present "to a degree substantially in excess of what ordinarily is involved in the offense"). This simply is not a case in which the defendant's conduct differs so markedly from that contemplated by the applicable guideline that a departure is justified. Compare United States v. Nakagawa, 924 F.2d 800 (9th Cir.1991) (special risk caused by possession of 18 firearms, some fully automatic, during drug offense not adequately reflected by 18 U.S.C. Sec. 924(c)(1)); United States v. Loveday, 922 F.2d 1411 (9th Cir.1991) (danger due to possession of homemade pipe bombs not adequately reflected by U.S.S.G. Sec. 2K2.2, which is concerned mainly with danger from firearms); United States v. Carpenter, 914 F.2d 1131 (9th Cir.1990) (danger attendant in method of attempted murder (running victim off road with logging truck and/or blowing up propane tank adjacent to victim's trailer) not adequately...