928 F. 2d 409 - United States v. Martinez

MEMORANDUM**

Appellant Alma Rosa Martinez appeals the sentence she received after pleading guilty to a single count of possession of a controlled substance, in violation of 21 U.S.C. Sec. 844(a). The sentence represented an upward departure from the guidelines range. Appellant contends that the departure was impermissible and unreasonable. The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

We review departures from the guidelines under a five-step process. United States v. Lira-Barraza, 897 F.2d 981 (9th Cir.), reh'g en banc ordered, 909 F.2d 1370 (1990). The first two Lira-Barraza requirements were met. The sentencing judge clearly stated on the record four grounds for departing upward from the guidelines, and his findings were supported by evidence in the presentence report (PSR). Appellant does not challenge the veracity of the report.

The third factor is whether the Commission considered the circumstances identified by the district court as justifying departure. Lira-Barraza, 897 F.2d at 987. The amount of methamphetamine possessed by Appellant, 34.3 grams, was "an exceptional quantity, substantially larger than what the Commission is likely to have had in mind when setting the score" for her offense. United States v. Bennett, 900 F.2d 204, 206 (9th Cir.1990). Her possession of a weapon was likewise a factor not adequately taken into consideration by the Commission in drafting the guideline under which she pleaded guilty. United States v. Carpenter, 914 F.2d 1131, 1134 (9th Cir.1990). Third, because Appellant possessed $6,440 in U.S. currency, acknowledged that her husband had for quite some time been involved in methamphetamine trafficking, PSR at 3, and admitted that she had not been gainfully employed for two and one-half years, id. at 6, the sentencing judge concluded that she was somehow involved in the sale of the methamphetamine she possessed at the time of her arrest. This was a circumstance justifying departure. U.S.S.G. Sec. 5H1.9; United States v. Guarin, 898 F.2d 1120, 1122-23 (6th Cir.1990) (criminal livelihood, if not adequately reflected in defendant's offense level, may also justify departure). Finally, departure was warranted under section 4A1.3 of the guidelines because Appellant's criminal history category did not adequately reflect the seriousness of her past criminal conduct, given her prior arrest for possession of 13 grams of methamphetamine, her failure to appear in court, and the existence of an outstanding bench warrant. See United States v. Gayou, 901 F.2d 746, 748 (9th Cir.1990).

Under the fourth step, we consider whether the district court abused its discretion in relying on these factors in departing upward. Lira-Barraza, 897 F.2d at 987. We conclude that it did not.

The fifth and final step is whether a given departure was reasonable. Lira-Barraza, 897 F.2d at 987-98. We find that the sentencing judge clearly and adequately identified the reasons for his departure. We cannot say that the degree of departure was unreasonable, particularly given the number of factors upon which the sentencing judge based his departure. See United States v. Pearson, 911 F.2d 186, 191 (9th Cir.1990).

We also reject Appellant's due process argument. Her acceptance of responsibility was duly accounted for. She was provided adequate notice of the charges against her, the possibility of an upward departure, and the sentencing judge's grounds for departing upward. See United States v. Acosta, 895 F.2d 597, 600-601 (9th Cir.1990).

AFFIRMED.