Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1989)

MEMORANDUM^* 

Appellant Luis Diaz Moreno contends that the district court's sentence of 78 months imposed pursuant to the Sentencing Guidelines constitutes an improper upward departure. We have jurisdiction over Moreno's timely appeal pursuant to 28 U.S.C. § 1291 (1982). We affirm.

On January 4, 1988, Moreno attempted to distribute cocaine to an undercover police officer. When the officer approached Moreno, Moreno pulled out a gun. The officer subdued Moreno without injury.

Pursuant to a plea agreement, Moreno pleaded guilty to one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1). On May 1, 1989, the district court sentenced Moreno to 78 months.

The district court may not use a circumstance to depart upwardly from the applicable Guideline range unless the Sentencing Commission did not adequately consider that circumstance in formulating the Guidelines. United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989). We review this question de novo. United States v. Gomez, 901 F.2d 728, 729 (9th Cir. 1990). Moreno contends that the district court's upward departure, which he claims was based upon his possession of a firearm during his violation of 18 U.S.C. § 841(a) (1), was improper because the Guidelines adequately considered that circumstance in calculating the offense level for a violation of 18 U.S.C. § 841(a) (1). See United States Sentencing Guideline Sec. 2D1.1(b) (1) (if a dangerous weapon was possessed during commission of the offense, increase by 2 levels). Thus, claims Moreno, because the district court did not articulate that Moreno was possessing a firearm in a way not adequately considered by the Sentencing Commission in formulating the Guidelines, upward departure was improper. We reject Moreno's argument.

Contrary to Moreno's characterization of the district court's grounds for upward departure, the district court did not upwardly depart from the applicable Guideline range solely because Moreno possessed a firearm. The district court stated:

First of all, at the time of the arrest for this offense, we not only have the possession of a weapon which enhanced the offense level by two points, but here there was the beginning of attempts to use that weapon by reaching for it and necessitating the officers to draw their own weapons. And this I find was an extremely dangerous situation....

Although the district court accounted for Moreno's mere possession of a firearm by increasing his offense score by two levels, the district court upwardly departed from the prescribed Guideline range because of the dangerous situation Moreno created when he attempted to use the firearm to resist arrest. The Guidelines authorize upward departure in those circumstances. Sentencing Guidelines Sec. 5K2.14 provides that "if national security, public health, or safety was significantly in danger, the court may increase the sentence above the Guideline range to reflect the nature and circumstances of the offense."

Moreno is incorrect in contending that the court upwardly departed on the basis of the weapon possession already taken into account.

The judgment of the district court is AFFIRMED.