United States v. Diego Restrepo

We consider whether enhancing the base sentencing level because of possession of a firearm during the commission of a drug offense is proper under the Sentencing Guidelines.

I. BACKGROUND

A paid informant bought cocaine from Diego Restrepo at Restrepo’s residence in Fairbanks, Alaska. In a search of the home, agents found cocaine, packaging material, bags, bottles of inositol for mixing with cocaine for distribution, a portable scale, and grinders for processing cocaine. They found scales and other equipment in several places in the residence, including the bedroom, and $1,136 in Restrepo’s robe. A loaded .32 caliber automatic pistol was discovered hidden between the mattress and box spring of his bed.

Restrepo was charged with three counts of distribution of cocaine and one count of possession with intent to distribute, violations of 21 U.S.C. § 841 (a)(1) (1982). At the conclusion of the evidence at trial, the judge instructed the jury that it could consider evidence of prior criminal acts, not to prove Restrepo did the acts charged, but to prove his state of mind. The jury convicted him on all counts.

The court sentenced him under the Sentencing Guidelines. He was convicted…