United States of America, Plaintiff-appellee, v. Arturo Valenzuela-moroyoqui, Defendant-appellant, 978 F.2d 1266 (9th Cir. 1992)
Annotate this CaseBefore WALLACE, Chief Judge, and TROTT and T.G. NELSON, Circuit Judges.
ORDER
The district court's increase of Valenzuela's offense level under U.S.S.G. § 3B1.1(c) was clearly erroneous. The district court's upward departure based on "more than minimal planning" must be vacated, as it relied in part on conduct relating to a count dismissed from Valenzuela's indictment. See United States v. Castro-Cervantes, 927 F.2d 1079, 1082 (9th Cir. 1990).
The district court stated at the sentencing hearing that, if the court of appeals disagreed with the increase in Valenzuela's offense level and the upward departure, a six month sentence should be imposed. The parties agree that this is the proper procedure in this case.
Valenzuela's sentence is vacated and the case remanded for imposition of a six-month sentence. The mandate will issue now.
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