United States v. Cesar Zamora

Opinion by Judge CANBY; Dissent by Judge RYMER.

Cesar Zamora appeals a five-level upward departure from the applicable guideline range in his sentence for distribution of cocaine and possession of cocaine with intent to distribute. We vacate his sentence and remand for resentencing.

BACKGROUND

On the evening of June 3, 1992, Zamora and several accomplices gathered in the parking lot of a Motel 6 in Reno, Nevada, to carry out their end of an agreement to supply three kilograms of cocaine for $22,500 per kilogram. Unfortunately for Zamora and his companions, their prospective buyers were agents of the Drug Enforcement Administration (DEA). After verifying that Zamora had the cocaine in his possession, the DEA agents revealed themselves and arrested him along with his accomplices, seizing a nine millimeter pistol found on Zamora’s person, and three kilogram-sized bricks of what they thought was cocaine. Analysis of the bricks at the DEA crime laboratory in San Francisco revealed, however, that Zamora had attempted to cheat the agents; they had seized what in fact were three bricks of sawdust that had been slightly hollowed, and which contained a total of only about 25 grams of…

dissenting:

Because I believe the added danger inherent in a fraudulent drag sale is an aggravating circumstance “of a kind or to a degree the Commission did not adequately take into account when formulating the guidelines,” United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en banc), I respectfully dissent.

The Guidelines determine sentences for drag offenses,.except for situations not present here, based on drag quantity. U.S.S.G. § 2D1.1. A “rip-off’ is not factored into the equation. Nor is there any indication that fraud occurs so frequently or in so many cases that the drag Guidelines must have taken such circumstances into account. By the same token, the fact that Zamora was subject to a mandatory minimum sentence under 18 U.S.C. § 924 (c)(1) for possession of a gun during the drag-trafficking offense says nothing about whether the Sentencing Commission considered the circumstance of an ordinary transaction with guns and a full deck to be the same as an extraordinary transaction with guns and a stacked deck. Possession of a gun is dangerous for lots of reasons not having to do with one drag dealer’s trying to cheat another — unloading on an innocent…

37 F.3d 531 UNITED STATES of America, Plaintiff-Appellee, v. Cesar ZAMORA, Defendant-Appellant. No. 93-10311. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 17, 1994. Decided Oct. 6, 1994. Patrick M. Mooney, Mooney & Boetsch, Reno, NV, for defendant-appellant. Daniel G. Bogden and Robert A. Bork, Asst. U.S. Attys., Reno, NV, for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before POOLE, CANBY, and RYMER, Circuit Judges. Opinion by Judge CANBY; Dissent by Judge RYMER. CANBY, Circuit Judge: 1 Cesar Zamora appeals a five-level upward departure from the applicable guideline range in his sentence for distribution of cocaine and possession of cocaine with intent to distribute. We vacate his sentence and remand for resentencing. BACKGROUND 2 On the evening of June 3, 1992, Zamora and several accomplices gathered in the parking lot of a Motel 6 in Reno, Nevada, to carry out their end of an agreement to supply three kilograms of cocaine for $22,500 per kilogram. Unfortunately for Zamora and his companions, their prospective buyers were agents of the Drug Enforcement Administration (DEA). After verifying that…