Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

SUPPLEMENTAL MEMORANDUM^* 

In this appeal Chandler raises five issues: (1) whether the district court erred by basing its departure in part on Chandler's refusal to discuss his employment history, (2) whether the district court violated the notice requirement of Fed. R. Crim. P. 32(a) (1), (3) whether the district court erred in basing a departure from the guidelines in part on the presence of firearms after considering that factor as a specific offense characteristic, (4) whether the district court erred in considering manufacture and distribution of methamphetamine separate offenses under the guidelines and then basing its departure from the guidelines in part on its findings that Chandler manufactured the drug in order to distribute it, and (5) whether the district court's departure from the guidelines was unreasonable. We have previously decided and rejected Chandler's first two claims. United States v. Chandler, unpublished mem. disp., No. 89-10194 (9th Cir. February 16, 1990). We now decide Chandler's final claims using the standard of review established by United States v. Lira-Barraza, 897 F.2d 981 (9th Cir. 1990). We affirm.

In this Circuit Lira-Barraza established the following five step process to review departures from the Sentencing Guidelines:

(1) whether the district judge adequately identified the "aggravating or mitigating circumstance" (hereinafter "circumstance");

(2) whether the identified circumstance actually existed;

(3) whether the circumstance was adequately taken into consideration by the Sentencing Commission,

(4) if not, whether the circumstance should result in departure; and

(5) whether the extent or degree of departure was unreasonable.

Id. at 983.

Chandler argues that the district court improperly relied on the additional weapons that defendant possessed in departing from the Guidelines. We disagree; under the Lira-Barraza standard the district court properly departed from the Guidelines. The district court adequately identified the aggravating circumstance, stating,

While possession of a sawed-off shotgun was a specific offense characteristic of a drug offense, defendant also possessed two other shotguns, and a semiautomatic assault rifle, as well as two fully loaded weapons at his residence when he was arrested, and that fact aggravates the seriousness of the offense.

Defendant does not question the veracity of these facts.

The quantity and dangerousness of this cache of arms was not adequately taken into consideration by the Sentencing Commission. The Guidelines provide for a two level increase for possession of a dangerous weapon, Sent. Guidelines Sec. 2D1.1(b) (1). We agree with the Fifth Circuit that

the guidelines treat possession of a machinegun the same as possession of a single-shot, small-bore rifle, or a handgun, or a hand grenade. The court might justify its departure by reasoning that the type of weapon in issue, a machinegun, was "an aggravating ... circumstance ... that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b).

United States v. Lopez, 875 F.2d 1124, 1128 (5th Cir. 1989). Chandler's arsenal was both larger and more dangerous than the Sentencing Commission contemplated. This supply of arms may reasonably result in an upward departure. The extent of the departure, 20 months, is not unreasonable, in light of the other aggravating circumstances.

B. The Distribution of Controlled Substances Departure

Chandler also argues that the district court improperly departed from the Guidelines based on the court's finding that Chandler manufactured the drug in order to distribute it. Chandler claims that manufacture and distribution of controlled substances are not separate offenses and therefore the departure was illegal. Again we disagree. We have already held that manufacturing a controlled substance and possession with intent to distribute, in violation of 21 U.S.C. § 841(a) (1), are separate offenses. United States v. Roberts, 747 F.2d 537, 547 (9th Cir. 1984).

The district court's departure also survives the five part Lira-Barraza review: (1) The district judge adequately identified the aggravating circumstance: " [W]hile only trace amounts of the drug were present, there were sufficient laboratory supplies and other paraphernalia to indicate that the defendant was engaged in an illegal profit-making enterprise." (2) The record fully supports the court's findings on this matter. (3) The Sentencing Guidelines do not always take full account of the amount of drugs and their criminal purpose when only trace amounts are found, see United States v. Putney, slip op., No. 89-10504 (9th Cir., June 29, 1990). (4) The Guidelines did not in this case adequately account for the seriousness of Chandler's conduct. (5) The departure was reasonable, given the other aggravating circumstances.

AFFIRMED.

PREGERSON, Circuit Judge, dissenting.

I dissent. I agree with the majority that the firearms and distribution departures were permissible in this case. I would reverse, however, on constitutional grounds.

The district court stated at the conclusion of the sentencing hearing that its decision to depart from the guidelines was based in part on Chandler's refusal to answer questions about his employment history. The district court impermissibly punished Chandler for exercising his Fifth Amendment privilege against self-incrimination. In addition, the sentencing proceeding involved a clear violation of Chandler's right to notice of and an opportunity to be heard on the factors upon which the district court based its departure from the guidelines under our decision in United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir. 1989).