Unpublished Disposition, 917 F.2d 566 (9th Cir. 1990)

No. 89-50572.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT, LEAVY, Circuit Judges, and KING^* , Senior District Court Judge.

MEMORANDUM^** 

Appellant Margarita Gonzalez was convicted after pleading guilty to the unlawful use of a communication facility in violation of 21 U.S.C. § 843(b). She appeals her sentence of twenty-four months imprisonment and one year of supervised release, claiming that the district court improperly relied on the longer sentence received by her codefendant to adjust her sentence upward. We agree and vacate the illegal portion of her sentence.

Gonzalez and three others were indicted for conspiracy to distribute cocaine and possession with intent to distribute cocaine. Gonzalez pleaded not guilty. The government then filed a First Superseding Information, charging Gonzalez with unlawful use of a telephone to facilitate the distribution of cocaine. Gonzalez pleaded guilty to this charge.

Following her guilty plea, the probation office established a base offense level of twelve for Gonzalez. The presentence report recommended that Gonzalez receive a two-point decrease based on her minor role in the offense, United States Sentencing Commission, Guidelines Manual, Sec. 3B1.1(b) (Nov. 1989), and another two-point decrease for acceptance of responsibility under section 3E1.1 of the Guidelines. Thus, the presentence report recommended a total offense level of eight. Based on Gonzalez's criminal history score of zero, the imprisonment range recommended by the Guidelines was two to eight months.

The district court refused to credit Gonzalez with acceptance of responsibility. This resulted in a total offense level of ten, with a guideline imprisonment range of six to twelve months. We hold that it was not clearly erroneous for the district court not to allow credit for acceptance of responsibility. Gonzalez minimized her involvement in the narcotics activity and the district court reasonably concluded that her representations were not credible.

The district court then departed upward an additional twelve months and imposed two years imprisonment. The district court's sole expressed basis for departing upward was to eliminate to the extent possible the disparity between the sentences of Gonzalez and her codefendant. However, Gonzalez's codefendant was convicted of possession with the intent to distribute cocaine, while Gonzalez was convicted only of unlawful use of a communication facility. Therefore, prior to the district court's upward adjustment, the sentences of the codefendants were disparate because the codefendants had been convicted of different crimes. Equalizing sentences among codefendants who are convicted of significantly different offenses is not a basis for upward departure. United States v. Enriquez-Munoz, No. 89-10256, slip op. 6543, 6551 (9th Cir. June 28, 1990).

Under the Guidelines, the maximum sentence that can be imposed on a defendant with a criminal history category of zero and an offense level of ten is twelve months. The excess portion of the sentence imposed by the district court is therefore vacated and Gonzalez's sentence is reduced to twelve months.

AFFIRMED IN PART AND VACATED IN PART