Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1989)

MEMORANDUM^** 

Joaquin Aispuro-Torres (Torres) was indicted for conspiracy to distribute cocaine and distribution of cocaine in September of 1988. Torres failed to appear for his trial on January 10, 1989. In February, Torres was arrested in Oregon. In April, Torres pled guilty to both counts listed in the indictment and the subsequent charge for failing to appear at trial was dropped.

At the first sentencing hearing in May, Torres objected to information contained in the presentence report. During this hearing, both sides agreed that the net weight of the cocaine was less than 2000 grams. However, the presentence report calculated Torres' offense level at 28 based on a net weight of 2,126 grams of cocaine. The report identified the applicable guideline range for a defendant with an offense level of 28 and a criminal history score of 1 as 78 to 97 months. The presentence report did not give Torres a two-point reduction for acceptance of responsibility.

In July, the judge conducted a second hearing to resolve the factual disputes in the presentence report. At the hearing, the judge accepted the facts set out in the presentence report and sentenced the defendant to 85 months, within the guideline range identified in the report based on an offense level of 28. Torres appeals the sentence, claiming the judge erred in calculating his offense level and refusing to award him a reduction for acceptance of responsibility.

The district court's decision on whether a defendant has accepted responsibility for his crime, entitling him to a two-point reduction under the Sentencing Guidelines, is reviewed for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). The district court's application of the Guidelines is reviewed de novo. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990).

United States Sentencing Guideline Sec. 3E1.1(a) provides that a defendant's offense level will be reduced by two if he "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." The guideline goes on to state that a defendant who enters a guilty plea is not automatically entitled to a reduction under this section. U.S.S.G. Sec. 3E1.1(c). The application notes to Sec. 3E1.1 list factors to be considered in determining acceptance of responsibility, including the timeliness of defendant's conduct in manifesting acceptance of responsibility. U.S.S.G. Sec. 3E1.1, comment n.1(g).

Torres submitted a letter at the July sentencing hearing acknowledging his role in the crime and accepting responsibility. At the hearing, Torres stated that "I know I did error here. I will not do it again."

The sentencing judge's determination on acceptance of responsibility is entitled to great deference and will not be disturbed unless it is clearly erroneous. Gonzalez, 897 F.2d at 1019. Torres' acceptance of responsibility did not occur until the sentencing. Prior to this time, he did not accept responsibility for his role in the crime. Torres gave conflicting stories to the probation officer, as reflected in the presentence report. Further, Torres fled the jurisdiction and failed to show up for his first trial date. Based on these facts, the court's determination that Torres had not accepted responsibility is not clearly erroneous.

The presentence report identified the net weight of the cocaine involved as 2,126 grams. This amount of cocaine leads to an offense level of 28 under U.S.S.G. Sec. 2D1.1. Combined with a criminal history score of 1, this results in a guideline range of 78 to 97 months.

Both parties agree that this weight of cocaine was in error. The actual net weight was under 2000 grams. The offense level for a defendant convicted of distributing over 500 but less than 2000 grams of cocaine would be 26. U.S.S.G. Sec. 2D1.1(c) (9). An offense level of 26 and a criminal history score of 1 combine to produce a sentencing range of 63 to 78 months. U.S.S.G., ch. 5, part A. Torres was sentenced to 85 months. Based on the 85 month sentence, Torres argues that the judge sentenced him under the wrong offense level.

It is unclear from the transcript of the second sentencing hearing what offense level the judge used. After determining that the police informant, Mr. McCullough, was credible, the court stated that McCullough's testimony fully "supports and validates the findings and recommendations of the offer of the presentence report." Torres' counsel then brought up the inaccuracy of the offense level. The judge did not address the problem of the offense level and proceeded to sentence Torres to 85 months, which is within the range for a defendant with an offense level of 28. After the court imposed sentence, Torres' counsel asked the court to order that the presentence report be corrected to show Torres had a base level of 26, not 28. The judge stated that he "would want to consider that." However, the report was never corrected.

It is unclear whether the judge used an offense level of 26 or 28. In either case, the judge erred. If the judge used the incorrect level of 28, as indicated by his adoption of the presentence report, then the case must be remanded. United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989) (where the judge uses an incorrect offense level in determining the sentence, reversal is required).

Alternatively, if the judge used an offense level of 26, the sentence of 85 months was an upward departure. However, the judge gave no reasons for the alleged departure. A judge must give specific reasons for departing from the Guidelines. Id.; United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir. 1990). Therefore, even if we found that the judge used the correct offense level, the departure to 85 months was improper because the judge gave no reasons for it. Where the district court fails to identify its reasons for departing from the Guidelines, the sentence may be vacated and the case remanded for resentencing. Wells, 878 F.2d at 1233.

The government argues that the judge actually departed downward because the judge could have found Torres was responsible for the distribution of up to ten kilograms of cocaine based on Mr. McCullough's testimony. This amount of cocaine would lead to an offense level of 32, with a guideline range of 121 to 151 months. However, there is nothing in the record to show the judge actually used this reasoning.

Whether the judge used an offense level of 26 or 28, the 85 month sentence was imposed in error. Therefore, the case is remanded for resentencing.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.