United States v. Sabino Gonzalez-Sanchez, A/K/A Francisco Javier Sanchez-Luna, A/K/A "Paco"

Citations: 953 F.2d 1184; 92 Cal. Daily Op. Serv. 560; 1992 U.S. App. LEXIS 419; 1992 WL 5273Docket: 91-30000

Court: Court of Appeals for the Ninth Circuit; January 17, 1992; Federal Appellate Court

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Sanchez-Luna appeals a 46-month sentence resulting from his guilty plea to charges of distributing heroin and possessing heroin with intent to distribute. His appeal centers on the claim that his base offense level was improperly increased by two levels due to the conversion of $1541 found at his residence into an equivalent amount of heroin. 

During the investigation, Sanchez-Luna sold 25.01 grams of heroin to an undercover agent for $2700. When agents executed a search warrant at his home, they found him attempting to flush evidence and discovered 3.49 grams of heroin, 1.67 grams of cocaine, drug records, firearms, and cash. A probation officer determined that Sanchez-Luna was responsible for 28.41 grams of heroin, including the 25.01 grams sold and the 3.49 grams discovered during the search. The officer converted the seized cash into an equivalent of 14 grams of heroin based on the average wholesale price, resulting in a total responsibility of 42.49 grams and a recommended base offense level of 20.

At sentencing, Sanchez-Luna objected to the cash conversion. The government defended the conversion, citing Sentencing Guideline section 2D1.4, which allows for approximation of drug quantity when the seized amount does not reflect the offense's scope. The district court upheld the probation officer's recommendation without changes, supported by precedents from five other circuit courts endorsing similar currency-to-drug conversions.

Evidence indicated a connection between seized money and drug transactions in prior cases, such as Hicks, where the defendant acknowledged that most of the money came from drug sales, and Stephenson, where the arrangement of proceeds was identifiable. In Gerante, the court found sufficient reliability in the defendant's claims that seized money was from a drug transaction. However, in the current case, there was no evidence linking the $1541 seized to drug-related activities, rendering the conversion of this cash into a drug equivalent improper without a preponderance of evidence proving its connection to drug transactions.

The government argued that Sanchez-Luna should be held accountable for Zarazua-Lopez's drug activities under Sentencing Guideline section 1B1.3, referencing United States v. LaFraugh, which allows for attributing losses caused by a conspiracy to a defendant. Despite evidence suggesting a possible conspiracy between Sanchez-Luna and Zarazua-Lopez, neither the probation officer nor the district court found them to be conspirators. The probation report limited Sanchez-Luna's responsibility to the drugs he sold and those found in his residence.

If the drugs attributed to Zarazua-Lopez were included with those found with Sanchez-Luna, the offense level would be 26, applicable for at least 100 but less than 400 grams of heroin. Government counsel argued against exceeding a base offense level of 20. Should the court decide to hold Sanchez-Luna accountable for only some of Zarazua-Lopez's drugs, it would need to provide factual findings justifying a downward departure from the guidelines, as established in United States v. Lira-Barraza.

The government argued that the district court could have found that Sanchez-Luna flushed enough heroin to increase his responsibility from 28.41 grams to at least 40 grams, which would elevate his base offense level to 20. However, this claim lacks merit, as the presentence report only indicates that Sanchez-Luna was flushing a toilet when agents arrived, without any evidence of the specific amount of heroin flushed. A determination that he flushed at least 11.59 grams would be erroneous. The court vacated the sentence and remanded the case for further proceedings, deeming the case suitable for submission without oral argument. Additionally, the excerpt highlights a miscalculation in the total amount of heroin attributed to Sanchez-Luna, clarifying that the 28.41 grams reported was incorrect due to a summation error. The guidelines specify that distribution and possession of certain quantities of heroin correspond to specific base offense levels, which the court referenced in its findings. Notably, the government’s suggestion of double-counting the amounts received from drug sales was also addressed, indicating that the $1541 in question should not be attributed again after the heroin had already been counted against Sanchez-Luna.