United States v. Richard D. Pedrioli

978 F.2d 457 UNITED STATES of America, Plaintiff-Appellee, v. Richard D. PEDRIOLI, Defendant-Appellant. No. 91-10392. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 17, 1992. Decided Oct. 13, 1992. James R. Homola, Fresno, Cal., for defendant-appellant. Jonathan B. Conklin, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before: WALLACE, Chief Judge, and GOODWIN and POOLE, Circuit Judges. GOODWIN, Circuit Judge: 1 Richard Dean Pedrioli appeals his sentence under section 2M5.2 of the United States Sentencing Guidelines for the unlawful exportation of handguns. The district court departed from the Guideline Range on the basis of the volume of commerce involved in the crime and the fact that the handguns were allegedly intended to wage war. We understand the sentencing judge's impatience with the statutory restrictions that displace the court's discretion in sentencing, but we are again compelled to vacate the sentence and remand for resentencing in accordance with the Guidelines. I. 2 Pedrioli was arrested for smuggling handguns into the Philippines. Bureau of…

Richard Dean Pedrioli appeals his sentence under section 2M5.2 of the United States Sentencing Guidelines for the unlawful exportation of handguns. The district court departed from the Guideline Range on the basis of the volume of commerce involved in the crime and the fact that the handguns were allegedly intended to wage war. We understand the sentencing judge’s impatience with the statutory restrictions that displace the court’s discretion in sentencing, but we are again compelled to vacate the sentence and remand for resentencing in accordance with the Guidelines.

I.

Pedrioli was arrested for smuggling handguns into the Philippines. Bureau of Alcohol Tobacco and Firearms agents observed the defendant marking two large metal boxes with the international insignia for scuba gear. Inspection of the boxes revealed that each container was constructed with double walls and bottoms. Agents found 74 handguns concealed in the hidden compartments. Defendant subsequently admitted that he had been smuggling handguns into the Philippines for the past two years and that he had smuggled approximately 800 guns during that period.

Pedrioli pled guilty to attempting to export munitions to the…

The district court departed upward for two reasons: (1) the number of weapons involved — 800, and (2) their purpose — waging war. I respectfully dissent from the decision to vacate this sentence.

In United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc) (Lira-Barraza), we set up a three-part test for reviewing decisions to depart from the Sentencing Guidelines. First, we review the legal authority of the district judge to depart de novo. Departure must be based on factors that are not adequately reflected in the Guidelines. See id. at 746 . Second, we review underlying factual findings for clear error. See id. Finally, we must determine whether the extent of departure was unreasonable in light of the standards and policies incorporated in the Guidelines. See id.

The authority to depart is clear. Application Note 2 to section 2M5.2 authorizes upward departures where “the volume of commerce” is “extreme.” U.S.S.G. § 2M5.2 application note 2. As the majority correctly points out, what constitutes an “extreme” number of weapons will vary with the type of weapons involved. By its nature, the question involves drawing lines. Here, the low caliber of the handguns is more…