Appeal from the United States District Court for the Central District of California. D.C. No. CR-91-0748-JMI-01. James M. Ideman, District Judge, Presiding
Before: Pregerson, Leavy, and Trott, Circuit Judges.
Nelson Valencia-Toro pled guilty to three counts of falsely stating he was not an illegal alien on a federal firearms acquisition form, in violation of 18 U.S.C. § 922(a)(6). He also pled guilty to five counts of illegally possessing firearms as an illegal alien, in violation of 18 U.S.C. § 922(g)(5). He appeals his 33-month sentence under the sentencing guidelines. He contends that the district court erred when it departed upward seven offense levels. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We vacate the sentence and remand for resentencing.
Nelson Valencia-Toro is a Colombian citizen who at all relevant times was in the United States unlawfully. Between May 16 and December 7, 1988, Valencia-Toro purchased semi-automatic assault rifles (Norinco AK-47's and Colt AR-15's) from various gun shops in the Los Angeles area under the name of Nelson Valencia. For each of the purchases, Valencia-Toro falsely stated on a Bureau of Alcohol, Tobacco, and Firearm ("ATF") acquisition form that he was not an illegal alien.
Valencia-Toro purchased the rifles for an individual named Alberto Ramirez, whom he met at a discotheque. Ramirez paid Valencia-Toro twenty to forty dollars for each firearm purchase. Valencia-Toro did not inquire why Ramirez wanted the rifles. He did not know Ramirez's address, and he had not seen Ramirez since December 1988.
On September 30, 1991, Valencia-Toro pled guilty to three counts of making a false statement on a federal firearms acquisition form in violation of 18 U.S.C. § 922(a)(6). He also pled guilty to five counts of illegally possessing firearms as an illegal alien in violation of 18 U.S.C. § 922 (g)(5). There is evidence that Valencia-Toro purchased thirteen rifles. However, he pled guilty to counts involving nine rifles.
Two hearings were held regarding Valencia-Toro's sentencing, January 27 and April 27, 1992. The parties agreed that the base offense level was 11 under U.S.S.G. § 2K2.1 (effective November 1, 1987) ("the 1987 section 2K2.1"). The government then requested that the district court depart upward seven levels because Valencia-Toro illegally transferred the rifles with the certain or reasonable belief that the rifles would be used for an illegal purpose. The government also requested that the district court depart upward because Valencia-Toro's offenses threatened public and national security. The government presented an affidavit from an ATF agent, Jose Ballesteros, which stated that four rifles traced to Valencia-Toro's purchases were found in the possession of parties who have connections to the Medellin drug cartel in Colombia.
Using U.S.S.G. § 2K2.1 (effective November 1, 1991) ("the 1991 section 2K2.1") as guidance, the district court granted the departure. The court sentenced Valencia-Toro to 33 months imprisonment, followed by three years supervised release. Absent the upward departure, the applicable guideline range would have been eight to fourteen months.
We employ a three-part standard of review when reviewing the sentencing court's decision to depart upward from the guidelines. United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir. 1991) (en banc). We review de novo whether the sentencing court correctly identified factors not adequately considered by the Sentencing Commission (the "Commission") in the applicable guideline. Id. We review for clear error the factual findings supporting the existence of the aggravating circumstances. Id. We review the extent of the departure for an abuse of discretion. Id.
Under 18 U.S.C. § 3553(b), "the district court may not depart from the applicable Guideline range unless it identifies an aggravating circumstance of a kind or to a degree the Commission did not adequately take into account when formulating the Guidelines." Lira-Barraza, 941 F.2d at 746. Valencia-Toro contends that the district court erred when it decided to depart upward from the base offense level because it relied on factors already adequately considered by the Commission. We agree.
The district court departed upward from the base offense level because Valencia-Toro illegally transferred the rifles knowing or reasonably believing that they would be used illegally.*fn1 The district court used the 1991 section 2K2.1 as guidance ...