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UNITED STATES v. ROBLES

March 3, 1993

UNITED STATES OF AMERICA
v.
JOSE ROBLES and JOSE CROUSSETT


Van Antwerpen


The opinion of the court was delivered by: BY THE COURT; FRANKLIN S. VAN ANTWERPEN

VAN ANTWERPEN, J.

 MARCH 3, 1993

 On April 22, 1992, following a two-day jury-trial before this court in Easton, Pennsylvania, defendants Jose Robles and Jose Croussett were both found guilty of conspiring to distribute cocaine-base and possessing cocaine-base with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. Defendant Robles was found not guilty of possessing cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

 United States Sentencing Guidelines §§ 2D1.1(a)(3), (c)(5) provide a base offense level for each defendant of 34 for the 171 grams of crack involved in this case. The Government has objected to the Pre-Sentence Report for each defendant on the grounds that the report fails to consider that the drug transaction occurred near a playground. The Government argues that a two point enhancement is appropriate under Guideline Section 2D1.2 ( Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy). The defendants have raised several legal and factual challenges to the Government's objection. Specifically, defendant Croussett argues that the enhancement cannot legally apply since the defendants where not convicted or charged with a violation of the substantive crime of distributing drugs near a protected area. 21 U.S.C. § 860. Both defendants also assert a factual defense that the playground is not open to the public and that it did not contain the requisite number of recreational apparatus on the date of the drug transaction in question. An offense level of 34 carries with it a Guideline sentencing range of 151-188 months, whereas an offense level of 36 carries a Guideline sentencing range of 188-235 months.

 DISCUSSION

 Guideline Section 2D1.2 provides for a two-point enhancement to the base offense level when a drug offense occurs near a protected location. This section provides, in pertinent part:

 
(a) Base Offense Level (Apply the greatest):
 
(1) 2 plus the offense level from § 2D1.1 applicable to the quantity of controlled substances directly *fn1" involving a protected location or an underage or pregnant individual.

 The commentary in this section expressly refers to 21 U.S.C. § 860. According to this statute, protected locations include schools and playgrounds and the area within 1,000 feet of the borders of their real property. A "playground" is defined as:

 
any outdoor facility (including any parking lot appurtenant thereto) intended for recreation, open to the public, and with any portion thereof containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards.

 21 U.S.C. § 860(d)(1).

 In order for the statute to apply, it is not necessary that a defendant know that an area is a protected zone. See United States v. Rodriguez, 961 F.2d 1089, 1095 (3d Cir. 1992). The same principal applies to an enhancement under the Guidelines. United States v. Mobley, 956 F.2d 450, 457 (3d Cir. 1992). The distance from the protected zone is measured by straight ...


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