United States v. Pajardo ( 2006 )

MEMORANDUM ^**

Joseph Pajardo pleaded guilty to four drug-related offenses under 21 U.S.C. §§ 841, 843 and 846. Pajardo appeals his sentence on two grounds. First, he claims that his sentence violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the facts related to drug amounts and firearm possession were not admitted or proven beyond a reasonable doubt. Pajardo also claims that the district court erred in denying his motion for downward departure for coercion.

Pajardo pleaded guilty to three violations of 21 U.S.C. § 841(a) (defining drug offenses), involving “more than 50 grams” of methamphetamine, in violation of 21 U.S.C. § 841(b) (establishing broad penalty categories based upon drug quantities involved in the offense). In determining the Sentencing Guidelines range, the district court found that approximately 3000 grams were actually involved. Pajardo contends that his sentence should have been based only on the 150 gram drug quantity that he pleaded guilty to possessing, and not the 3000 grams.

We decline Pajardo’s request that we vacate and remand his sentence, but agree, as the government concedes, that he is entitled to a limited remand under United States v. Ameline, 409 F.3d 1073 (9th Cir.2005). Even if the district court erred in calculating drug amount, the error did not increase the sentencing range beyond the statutorily authorized maximum based on Pajardo’s admission that the crimes involved more than 50 grams of methamphetamine. Nonetheless, the record in this case is insufficient to determine whether the sentence would have been different had the judge known the Sentencing Guidelines were advisory. On plain error review, a limited remand is appropriate. Id. at 1084-85.

Pajardo also challenges the district court’s enhancement of his sentence by two levels, pursuant to U.S.S.G. § 2Dl.l(b)(l), for possession of a firearm. The district court erred in applying this enhancement in a mandatory Guidelines regime. The record is similarly insufficient to complete the appropriate prejudice analysis. On plain error review, a limited remand is appropriate. Id.

Lastly, Pajardo challenges the district court’s decision not to grant him a downward departure for coercion under U.S.S.G. § 5K2.12. The district court recognized that it had the discretion to grant a downward departure for coercion but was not persuaded to do so. The district court’s discretionary refusal to grant a downward departure is not reviewable and thus this portion of the appeal must be dismissed. United States v. Linn, 362 F.3d 1261, 1262 (9th Cir.2004) (per curiam).

DISMISSED IN PART; REMANDED IN PART.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.