96 Cal. Daily Op. Serv. 1256, 96 Daily Journal D.A.R. 2133 United States of America v. Julius Asagba, United States of America v. Kenneth Taylor

Opinion by Judge GOODWIN; Dissent by Judge PREGERSON.

OPINION

The only substantial question in this consolidated appeal by the government from what it contends were legally inadequate sentences is the degree of deference due the district court in its fact-finding function in the imposition of a guideline sentence.

FACTS

Taylor and Asagba were convicted following separate jury trials of one count of violating 21 U.S.C. § 846 — conspiracy to distribute heroin and cocaine. The two defendants were caught in an investigation that netted some 18 codefendants charged in a series of multiple-count indictments after Taylor and Asagba were arrested in a Washington, D.C. hotel room. Taylor had 7.8 grams of heroin still in his alimentary canal, and his room contained 46 empty condoms that had been wrapped with electrical tape, swallowed, passed through some person’s digestive system, emptied of their load of heroin, and had not yet been disposed of when the officers arrived to make the arrest. The two defendants were convicted of conspiracy to distribute heroin and were sentenced to a term of custody fixed under the guidelines by the 7.8 grams proven to have been carried by…

dissenting:

I dissent. I see no reason to reverse and remand for further proceedings. Here, after considering what it regarded as reliable evidence, the district court refused to base its sentencing decision on what it regarded as speculation. I cannot say that the district court abused its discretion. United States v. Ponce, 51 F.3d 820, 828 (9th Cir.1995). I would affirm.

77 F.3d 324 96 Cal. Daily Op. Serv. 1256 , 96 Daily Journal D.A.R. 2133 UNITED STATES of America, Plaintiff-Appellant, v. Julius ASAGBA, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Kenneth TAYLOR, Defendant-Appellee. Nos. 95-10139, 95-10197. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 12, 1996. Decided Feb. 27, 1996. Theresa J. Canepa and Stephanie Hinds, Assistant United States Attorneys, San Francisco, California, for plaintiff-appellant. Nina Wilder, Weinberg & Wilder, San Francisco, California, for defendant-appellee Asagba. Gregor D. Guy-Smith, San Francisco, California, for defendant-appellee Taylor. Appeals from the United States District Court for the Northern District of California. Before: LAY * , GOODWIN and PREGERSON, Circuit Judges. Opinion by Judge GOODWIN; Dissent by Judge PREGERSON. OPINION GOODWIN, Circuit Judge. 1 The only substantial question in this consolidated appeal by the government from what it contends were legally inadequate sentences is the degree of deference due the district court in its fact-finding function in the imposition of a guideline sentence. FACTS 2 Taylor and Asagba were convicted…