Lopez

In December 1989, defendant Jose Orlando Lopez was indicted for conspiracy to possess with intent to distribute and to distribute cocaine and heroin, in violation of 21 U.S.C. § 846 , distribution of cocaine and heroin, in violation of 21 U.S.C. § 841 (a)(1), and aiding and abetting in violation of 18 U.S.C. § 2 . The district court originally dismissed the five-count indictment, finding that the government had engaged in misconduct by entering into plea negotiations with Lopez in the absence of his attorney. This court reversed the dismissal, determining it to be an inappropriate remedy. United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir.1993).

In March 1995, a jury found Lopez guilty on all five counts. In September 1995, the district court sentenced Lopez to 135 months in custody. In imposing this sentence, the district court departed downward three levels because of the prejudice to Lopez which resulted from the government’s conduct. The court also refused Lopez’s requests for a downward departure for sentencing entrapment and a downward departure for post-arrest general rehabilitation. Lopez appeals the court’s refusal to depart, and the government cross-appeals the court’s…