Unpublished Disposition, 940 F.2d 1537 (9th Cir. 1991)

No. 89-10655.

United States Court of Appeals, Ninth Circuit.

Before BRUNETTI and RYMER, Circuit Judges, and WILSON,^*  District Judge.

MEMORANDUM^** 

In an accompanying opinion, we reject Mariscal's claim that the district court improperly denied his severance motion. We deal with his remaining claims in this memorandum disposition.

There was sufficient evidence, taken in the light most favorable to the government, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), linking Mariscal to a conspiracy to distribute cocaine. There is evidence that Mariscal participated in an ongoing transaction involving the purchase of cocaine in an amount too great for personal use. Telephone conversations and the testimony of Serrano indicate that he had yet to complete but was making partial payments on a drug debt to Rojas-Oquita. See United States v. Zevala, 839 F.2d 523, 526-27 (9th Cir.) (payment of debt ensuring possibility of future dealings sufficient to facilitate conspiracy), cert. denied, 488 U.S. 831 (1988). This evidence also indicated that Mariscal knew or had reason to know, see United States v. Perry, 550 F.2d 524, 528-29 (9th Cir.), cert. denied, 431 U.S. 916, cert. denied, 434 U.S. 827 (1977), of the scope and manner of distribution in the organization. The telephone conversations between Mariscal and Rojas-Oquita also concern future drug transactions and assurances of customer satisfaction. Taken together, this direct evidence is sufficient to establish Mariscal's participation in a conspiracy to distribute cocaine. See United States v. Ramirez, 710 F.2d 535, 548 (9th Cir. 1983) (only slight connection to conspiracy required).

Federal Rule of Evidence 901(a) "requires that the government make only a prima facie showing of authenticity ' "so that a reasonable juror could find in favor of authenticity or identification." ' " United States v. Blackwood, 878 F.2d 1200, 1202 (9th Cir. 1989) (per curiam) (quoting United States v. Black, 767 F.2d 1334, 1342 (9th Cir.), cert. denied, 474 U.S. 1022 (1985)). The district court did not abuse its discretion in admitting the transcripts of the monitored telephone calls into evidence, because the transcripts themselves establish a prima facie case of authenticity circumstantially. [See, e.g., Exhibits 37B, 38B, 43B, 46B, and 50B.] In all five calls, one of the voices is identified as being that of Rojas-Oquita, while the other belongs to a person identified as "Junior." "Junior" is Mariscal's nickname. In two of the conversations [ (Exhibits 38B and 46B) ] the place called is identified as Micha's, a restaurant owned by Mariscal. DEA special agent Gomez testified that he had seen Mariscal at Micha's restaurant frequently. Taken together, these facts are sufficient to allow the jury to determine authenticity.

Because the evidence was sufficient to prove a conspiracy to distribute cocaine, Serrano's testimony concerning the previous sale and outstanding debt between Mariscal and Rojas-Oquita is admissible because it concerned acts that occurred during and in furtherance of the conspiracy. See Fed.R.Evid. 801(d) (2) (E). Serrano's discussions with Mariscal and Rojas-Oquita occurred within the timeframe of the conspiracy. Further, the payment of a debt would allow both Mariscal and Rojas-Oquita to continue in the drug trade, providing capital for Rojas-Oquita, and "good will" for Mariscal so that he could make future purchases. See Zevala, 839 F.2d at 526. Thus, Serrano's testimony was properly admitted by the trial court.

The district court found Mariscal's offense level to be 28 and his criminal history category a "I," producing a guideline range of 78-97 months. The court departed upward, imposing a 12-year sentence.

The district court's departure is invalid because Mariscal was not notified of the court's intention to depart, because the court did not find that the Sentencing Commission failed to consider the departure circumstances and because the court did not explain the degree of departure.

" [B]efore a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government, [Federal] Rule [of Criminal Procedure] 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling. This notice must specifically identify the ground on which the district court is contemplating an upward departure." Burns v. United States, 111 S. Ct. 2182, 59 U.S.L.W. 4625, 4628 (U.S. June 11, 1991). Accord United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir. 1989). There was no such notice given in this case, and the remedy is vacation of the sentence and a remand for resentencing. United States v. Hedberg, 902 F.2d 1427, 1429 (9th Cir. 1990); Nuno-Para, 877 F.2d at 1415.

The government's argument that Mariscal's counsel in fact addressed the issue of drug quantity and Mariscal's role in the offense at sentencing fails; the extent of Mariscal's involvement was certainly addressed, but only generally, not in the context of whether it constituted a proper grounds for departure. No matter how "readily apparent" it is that facts could be used to justify a departure, the notice requirements must be followed. United States v. Rafferty, 911 F.2d 227, 230 (9th Cir. 1990).

The district court also failed "to make a clear finding that the commission did not adequately consider" the specific aggravating circumstances, United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir.), reh'g granted, 909 F.2d 1370 (1990), and failed to state its reasons for the direction and the degree of its departure." Id. at 986 (emphasis added). Such errors also demand vacation of the sentence. United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989) (per curiam); United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989); cf. United States v. Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir. 1990) (example of district court's detailed rationale for departing from guidelines).

Even if these procedural requirements had been met in this case, the district court's stated reason for departure¹  would have been invalid. " [D]eparture is permissible if 'the court finds that there exists 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 that should result in a sentence different from that described.' " United States v. Pearson, 911 F.2d 186, 188 (9th Cir. 1990) (quoting 18 U.S.C. § 3553(b)). A departure is unwarranted, and a sentence is therefore invalid, when the sentencing court relies improperly on factors already considered by the guidelines. Nuno-Para, 877 F.2d at 1414.

As to the district court's first factor, drug quantity, the guidelines explicitly take that information into account in computing a base offense level. U.S.S.G. Sec. 2D1.1. Therefore, it is not a proper grounds for departure. Nuno-Para, 877 F.2d at 1414.

The second stated reason goes to aggravating role in the offense, a consideration the guidelines specifically deal with in Sec. 3B1.1. Therefore, departure on this basis is invalid as well. Nuno-Para, 877 F.2d at 1414.

Mariscal's conviction is AFFIRMED. His sentence is VACATED and the case is REMANDED for resentencing.