Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Daniel CHANDLER, Defendant-Appellant.

No. 89-10194.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 14, 1989.Decided Feb. 16, 1990.

Before FARRIS, PREGERSON and RYMER, Circuit Judges.


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. At this time we decide only the first two issues. The proper standard of review used where district courts cite aggravating circumstances in support of an upward departure from the guidelines is currently before another panel of this circuit, United States v. Lira-Barraza, 88-5161, and we defer decision of the final three questions pending that panel's decision.

We understand Chandler's argument that the district court impermissibly based its decision to depart from the Federal Sentencing Guidelines on Chandler's refusal to explain his employment history. The unfortunate language used by the court supports Chandler's conclusion: " [D]efendant's refusal to explain his employment history for the five years prior to his arrest creates an inference that his income had an illegal source."

The fifth amendment applies to the sentencing phase of a criminal prosecution. Estelle v. Smith, 451 U.S. 454 (1981). The sentencing judge cannot punish the defendant for exercising his right to remain silent. If, however, the election to exercise this right leaves unrebutted, certain reasonable inferences from the record, the court, at the time of sentencing, is not required to ignore those reasonable inferences. The question turns on the reasonableness of the inferences, the presence of notice and the opportunity to be heard. The failure to rebut through the exercise of the right to remain silent is not a relevant factor.

We have carefully reviewed the record. We are satisfied that the court reasonably inferred that Chandler's income came at least in part from illegal activity. The sound basis for that conclusion was the record, not Chandler's silence. His silence merely failed to rebut what was obvious from the record. He could have rebutted in other ways but he elected not to do so. We therefore reject Chandler's argument. We find no fifth amendment violation.

We also reject Chandler's argument that he did not receive adequate notice pursuant to Fed.R.Crim.Proc. 32(a) (1). That argument reflects a misunderstanding of what notice is required. A sentencing court must notify the defendant of possible grounds for departure before imposition of the sentence in order to allow the defendant to respond. United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir., 1989). The district court complied with the requirements of Nuno-Para. Chandler was fully apprised of the court's reasons for departure. While the court did not specifically state one of the grounds--five years income from an illegal source--this factor was inferred from the other factors, and defense counsel was given an opportunity to address the court on that issue, as required by Rule 32(a) (1). The defendant had this opportunity but elected not to take advantage of it. The court gave adequate notice.

AFFIRMED.

PREGERSON, Circuit Judge, dissenting.

I dissent.

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 at 1415.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3