Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

MEMORANDUM^* 

In this sentencing appeal, the issues raised by the appellants are as follows:

1. Did the district court err in granting an upward departure from the federal sentencing guidelines based upon purity of the appellants' cocaine when measured against the street level purity of cocaine?

2. Did the district court improperly sentence appellant Lahey to the maximum term within the chosen guideline range without considering individualized factors?

3. Did the district court err in refusing to grant appellant Quintero a two-point downward adjustment in offense level for a minimal role in the offense?

We affirm with respect to the second and third issues, and remand for reconsideration of the appropriateness of an upward departure based on purity of the drug.

The appellants pleaded guilty to one count of possession of cocaine with intent to distribute and aiding and abetting, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. The presentence reports (PSRs) indicated that while appellant Lahey discussed with an informant the possibility of delivering twenty-five kilograms of cocaine, the appellants never contemplated delivery of any more than three kilograms.

At sentencing, the district court rejected the PSRs' recommendation that the applicable guideline range was that appropriate for a twenty-five-kilogram transaction. The district court stated that it would start its guideline calculation from the range applicable to offenses involving three kilograms of cocaine; the district court stated that, in so acting, it was making a "downward departure" from the applicable guideline range. The district court then granted each appellant a two-point downward adjustment for acceptance of responsibility and a one-point upward departure based on the purity of the drug involved.

Because the district court's calculation resulted in sentences that fell below the range the district court's language suggested was the applicable guideline range, we sua sponte questioned our jurisdiction. We lack jurisdiction to review a challenge to the extent of a downward departure from the applicable guideline range. United States v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir. 1990); see also United States v. Pighetti, 898 F.2d 3, 4 & n. 1 (1st Cir. 1990).

Upon hearing the arguments of the parties and reviewing the record with care, we conclude that the district court in this very unusual case simply misspoke, and did not in fact make a downward departure from an otherwise applicable range. Rather, the court determined that the appropriate range was the one applicable to a three-kilogram transaction, see U.S.S.G. Sec. 2D1.4 application n. 1, and made discrete and appealable rulings with respect to the downward adjustments requested by appellants. The district court also upwardly departed on the basis of purity, a departure which may be appealed as well. See 18 U.S.C. § 3742(a); United States v. Martinez-Duran, 927 F.2d 453, 455-57 (9th Cir. 1991). We therefore consider the merits of the appeals.

With respect to the purity issue, the government agrees that there is an uncertainty in the record as to the appropriateness of the departure. We therefore remand for reconsideration of whether the cocaine was of unusually high purity within the meaning of U.S.S.G. Sec. 2D1.1, application n. 9.

Appellant Lahey contends that the district court erred in sentencing him to the maximum term within the chosen guideline range without consideration of individualized factors. See United States v. Barker, 771 F.2d 1362, 1365-67 (9th Cir. 1985). This contention is without merit, as the record reflects that the district court gave adequate consideration to Lahey's individual circumstances.

Appellant Quintero's assertion that the district court erred in refusing to grant him a two-point downward adjustment for a minimal role in the offense is also without merit. In light of the record, we cannot say the district court's finding that Quintero did not play a minimal role in the offense was clearly erroneous. United States v. Williams, 898 F.2d 1400, 1403 (9th Cir. 1990).

Appellants' sentences are VACATED and the cases are REMANDED to the district court for reconsideration of the appropriateness of an upward departure based on purity of the drug.