Appeal from the United States District Court for the Central District of California. D.C. No. CR-90-0812-CBM-3. Consuelo B. Marshall, District Judge, Presiding.
Before: Thomas Tang, Mary M. Schroeder, and Robert R. Beezer, Circuit Judges. Opinion by Judge Tang.
During a joint undercover operation between the federal government and the Los Angeles Police Department ("L.A.P.D."), law enforcement officials witnessed, at different times, Jose Mondron and Juan Vilchez dealing in heroin. Mondron was arrested and prosecuted in California state court. Vilchez was arrested several months later and prosecuted in federal court. Vilchez subsequently pleaded guilty to the distribution of heroin. At sentencing, the district court departed downward below both the applicable Sentencing Guidelines range and the statutorily mandated minimum sentence. The district court explained that its decision to depart downward was necessary to avoid disparity between Mondron's and Vilchez's sentences. The government appeals the downward departure. We vacate and remand for resentencing.
On June 20, 1990, the L.A.P.D. arrested Jose Mondron after he and Jose Gamez arranged a sale of heroin with a confidential informant. Mondron had in his possession at the time of arrest 465 grams of heroin. The undercover operation that netted Mondron was a joint investigation conducted by the L.A.P.D. and the federal government. Mondron was prosecuted in state court, where he pleaded guilty and received a two-year sentence.
In the meantime, the joint undercover operation continued. In late September 1990, officers observed Vilchez, Gamez, and Louis Valencia make repeated sales of heroin to an undercover officer.
Vilchez, Gamez, and Valencia were arrested. Unlike Mondron, however, charges against them were filed in federal court.*fn1 On April 3, 1991, Vilchez pled guilty to one count of distributing 301 grams of heroin, in violation of 21 U.S.C. § 841(a)(1).
Because Vilchez was prosecuted in federal, rather than state, court, the United States Sentencing Guidelines and a federal mandatory minimum statute strictly constrained his potential sentence. At the sentencing hearing on June 20, 1991, the district court calculated Vilchez's Sentencing Guidelines range to be 51-63 months. Additionally, federal law required a five-year mandatory minimum sentence for Vilchez's crime. 21 U.S.C. § 841(b)(1)(B).
At Vilchez's sentencing hearing, the district court departed downward from the Guidelines and section 841(b)(1)(B) and sentenced Vilchez to three years imprisonment. The court explained that it departed in an effort to reduce the disparity between Mondron's and Vilchez's sentences.
On July 2, 1991, the government filed a motion for reconsideration. On July 29, 1991, the district court denied the motion, reiterating its desire to reduce sentencing disparity attributable solely to prosecutorial decision-making. The district court also noted that, because the government had filed a notice of appeal ten days earlier, the court probably did not have jurisdiction to rule on the motion for reconsideration.*fn2
The government timely noticed its appeal to this court of the district court's downward departure and failure to enforce section 841(b)(1)(B)'s mandatory minimum sentence.
In evaluating the district court's decision to depart downward from the Sentencing Guidelines range, we review de novo the district court's determination that it had the authority to depart. United States v. Floyd, 945 F.2d 1096, 1098 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992); see also United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir. 1991) (en banc). We review the factual findings upon which the departure is predicated for clear ...