Unpublished Disposition, 924 F.2d 1064 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1064 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Terry Elwood WHITLOCK, Defendant-Appellant.

Nos. 90-50068, 90-50095.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 11, 1990.Decided Jan. 29, 1991.

Before FLETCHER, BOOCHEVER and WIGGINS, Circuit Judges.


MEMORANDUM* 

Terry Elwood Whitlock appeals his forty-six month sentence following a bargained guilty plea to two counts of interstate transportation of forged securities and one related conspiracy count. We have jurisdiction under 28 U.S.C. § 1291. Because the district court improperly departed from the Guidelines range, we vacate Whitlock's sentence and remand for resentencing.

The district court stated that it was upwardly departing from the Guidelines range, at least in part,1  because Whitlock was "a typical textbook case" [SER at 53] of a drug abuser who needed "to get separated from the community.... [and] get run out of narcotics." [SER at 52].

Upward departure is unwarranted on the basis of drug abuse except in the exceptional case. United States v. Richison, 901 F.2d 778, 781 (9th Cir. 1990). In the typical case, drug abuse should affect only the terms and conditions, as well as the period, of supervised release. Id. If a particular defendant's condition is so out of the ordinary that departure is required, the district court must make a finding to that effect and state the reasons why a greater period of incarceration is more appropriate than a longer term of supervised release. Id.

Although the transcript of the sentencing hearing can be read to indicate that Whitlock's substance abuse is not so out of the ordinary to warrant departure, the district court did not explicitly address this issue and it is not our place to make such a determination in the first instance. See id. (remanding for resentencing in similar circumstances). Rather, on remand it is open to the district court to consider whether Whitlock's drug abuse was sufficiently out of the ordinary to warrant departure, as well as the propriety of departing on any other basis.

We VACATE Whitlock's sentence and REMAND for resentencing.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The district court gave other reasons for its departure as well. However, a complete review of the transcript of Whitlock's sentencing hearing indicates that the district court placed primary emphasis on Whitlock's drug abuse. [See, e.g., SER at 52-53.]

In any case, where the district court considered both proper and improper bases for departure we must vacate the sentence and remand for resentencing. United States v. Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir. 1990).