Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)

MEMORANDUM^** 

In these consolidated appeals, Jamie Valencia-Mendoza and Muradija Bermudas assert that the district court erred in sentencing them for offenses committed in the course of a drug transaction. We affirm the sentences in both cases.

Valencia pled guilty to possession of a firearm by a felon and possession of a firearm by an illegal alien. Although the recommended sentence under the guidelines was four to ten months, the district court imposed a thirty-month sentence because Valencia committed the crime while acting as an "enforcer" or "protector" in an illegal drug transaction. Valencia argues that this departure was impermissible and unreasonable. We do not agree.

The guidelines permitted the district court to depart from the recommended sentence if it found that Valencia's offense involved "an aggravating or mitigating circumstance of a kind, or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b). More specifically, the guidelines expressly provided that the district court could increase the sentence above the guideline range if Valencia "committed the offense in order to facilitate or conceal the commission of another offense." U.S. Sentencing Commission, Guidelines Manual Sec. 5K2.9. In light of these provisions, we conclude that the district court acted well within its authority in deciding to depart because of the dangerous and illegal purpose for which Valencia carried the weapon.

Further, we find that the thirty-month sentence is not unreasonable. The statutory maximum sentence for each of the two offenses to which Valencia pled guilty is five years; thus, Valencia faced a possible maximum sentence of ten years. See 18 U.S.C. § 922(g) (1), (5). The actual sentence he received is well below that maximum. Moreover, the penalty for possessing a firearm in the commission of any federal felony (which, of course, includes illegal drug trafficking) is one to ten years. 18 U.S.C. § 924(c) (1). The court's imposition of a 2 1/2 year sentence is not out of line with this standard.

Valencia contends that the district court erred by "not explaining the relationship between the aggravating conduct and that associated with similar adjustments." Brief of Appellant at 11. There was no requirement, however, that the court explain the similarity between Valencia's conduct and the conduct of others whose sentences represent departures of similar magnitude. All the guidelines required was that the judge state "the specific reason for the imposition of a sentence different from [the recommended sentence]." 18 U.S.C. § 3553(c) (2). This the court did.¹ 

Valencia argues also that the district court effectively "double counted" by using Valencia's previous drug-related convictions, which were already included in calculating his criminal history score, as a basis on which to enhance the sentence. The record shows, however, that the court used Valencia's previous conduct as evidence that he was carrying the gun in order to "enforce" the deal and protect his associates. Thus, the factor supporting upward departure was not Valencia's prior record per se, but rather his purpose in carrying the weapon. Hence, there was no double counting.

Finally, Valencia objects to the district court's use of "real offense" information, suggesting that the court should have limited itself to "charge offense" information. The guidelines, however, specifically permitted the court to consider, in determining whether a departure from the guidelines was warranted, "any information concerning the background, character and conduct" of Valencia. Guidelines Manual Sec. 1B1.4.

Bermudas pled guilty to attempted possession of a controlled substance with intent to distribute, and the district court sentenced her to 97 months in prison. She contends that the court violated Fed. R. Crim. P. 11(c) by not informing her of the minimum sentence she faced under the guidelines. This position is contrary to the law of this circuit.

Rule 11(c) required the district court to inform Bermudas of "the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law." Fed. R. Crim. P. 11(c). The violation to which she pled guilty carried only a statutory maximum sentence, and the district court advised her correctly about that. The existence of the guidelines did not affect the district court's responsibilities under Rule 11(c). The court "was not required to inform [Bermudas] of the applicable offense level and criminal history category under the Sentencing Guidelines prior to accepting [her] guilty plea." United States v. Turner, 881 F.2d 684, 687 (9th Cir. 1989).

Bermudas argues also that the court should have held an evidentiary hearing to resolve disputed facts relevant to sentencing. She alludes specifically to the court's finding that she was the actual source of the drugs and therefore a major player in the transaction; on this subject, Bermudas and a co-defendant made conflicting statements. We conclude, however, that this dispute did not make it necessary for the district court to hold a special evidentiary hearing.

The court had discretion in determining how to resolve factual disputes relevant to Bermudas' sentence; a special evidentiary hearing was only one option. See Guidelines Manual Sec. 6A1.3 (Commentary). At the sentencing hearing, the court allowed Bermudas' counsel and the government to present information and arguments with respect to Bermudas' role in the transaction. In light of the substantial evidence supporting the finding that Bermudas was the source of the drugs, such an opportunity to dispute the point was sufficient. The court did not abuse its discretion by declining to hold a special hearing on the matter.² 

The sentences of Valencia and Bermudas are AFFIRMED.