Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

MEMORANDUM^** 

Tyshone Lapaul Davis appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his guilty plea to a superseding information charging him with the unlawful use of a communication facility in violation of 21 U.S.C. § 843(b). Davis contends that the 48 month sentence he received was the result of an incorrect application of the Guidelines and that there was an insufficient factual basis for the district court's departure from the recommended range of 15 to 21 months. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Stipulations in a plea agreement are not binding on the sentencing court but the district court can use the stipulations together with the results of the presentence investigation to aid in determining relevant facts for sentencing under the Guidelines. United States v. Howard, 894 F.2d 1085, 1089 (9th Cir. 1990); See U.S.S.G. Sec. 6B1.4(d) and comment. Factual findings in the presentence report can be accepted by the sentencing court as accurate and are reviewed only for plain error if the defendant failed to raise objections below. United States v. Lopez-Cavasos, 915 F.2d 474, 475-6 (9th Cir. 1990); United States v. Corley, 909 F.2d 359, 362 (9th Cir. 1990). In sentencing on a charge of using a telephone to facilitate the distribution of drugs, the district court may properly consider the amount of drugs involved as an aggravating circumstance justifying an upward departure. United States v. Bennett, 900 F.2d 204, 206 (9th Cir. 1990).

Here, although Davis stipulated to a factual basis for a 48-month departure in his plea agreement, the district court expressly stated that it was not relying on the terms of the plea agreement as a basis for the departure to 48 months. Rather, the district court based its decision to depart on the quantity of drugs involved, which the presentence report found to be approximately 1400 grams of cocaine base.¹  While the base offense levels for many drug related offenses take quantity into account, the base offense level for violations of 21 U.S.C. § 843(b) does not. Compare U.S.S.G. Sec. 2D1.1 (narcotics trafficking) with U.S.S.G. Sec. 2D1.6 (use of communication facility for narcotics trafficking); see Bennett, 900 F.2d at 206. Thus, the amount of cocaine base as documented in the presentence report constitutes an aggravating circumstance not adequately considered by the Sentencing Commission and the district court did not abuse its discretion in basing the departure on this factor.²  See id. Furthermore, in light of the substantial discretion allowed the sentencing court and considering the significant quantity of cocaine base linked to Davis, the departure was not unreasonable.³  See id.

Thus, the district court's departure to 48 months was permissible. See Bennett, 900 F.2d at 205-6.

AFFIRMED.