United States v. Richard Louis Durham, A/K/A Richard L. Durham, Richard Durham, and Rick Durham

Richard Louis Durham appeals his sentence for possession with intent to distribute methamphetamine, 21 U.S.C. § 841 (a)(1), and possession of a firearm in relation to a drug trafficking offense, 18 U.S.C. § 924 (c)(1). In United States v. Durham, 941 F.2d 858 (1991), we vacated his prior sentence and remanded for resentencing because the court failed to articulate its reasons for departure.

This appeal arises from that resentencing. On remand, the court departed upward 85 months from the prescribed Guidelines range and imposed a 210-month sentence for drug possession. It also sentenced him to an additional five years for the firearm possession. Durham challenges the court’s basis for departure and the reasonableness of his sentence. We affirm.

I

We follow the three-part test enunciated in United States v. Lira-Barraza, 941 F.2d 745, 746-747 (9th Cir.1991) (en banc) when reviewing a departure from the Sentencing Guidelines’ range. We review (1) de novo whether the court identified an aggravating circumstance of a kind or degree not adequately taken into account by the Sentencing Commission, (2) for clear error the court’s factual findings supporting the existence of the…