Appeal from the United States District Court for the Southern District of Texas. D.C. DOCKET NUMBER CR-H-92-66-1. JUDGE Melinda Harmon
Before Goldberg, Garwood and Wiener, Circuit Judges.
Carlos Echevaria pleaded guilty to possession of crack cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1). At the sentencing hearing, the district court found that Echevaria's offense occurred within one thousand feet of a "protected area" and enhanced Echevaria's sentence by two levels under § 2D1.2 of the United States Sentencing Guidelines ("U.S.S.G."). On appeal, Echevaria challenges the district court's application of § 2D1.2.
We affirm the district court's determination that Echevaria's offense occurred within a thousand feet of a protected location under § 2D1.2. However, because the offense did not directly involve the protected location, the district court erred by increasing Echevaria's sentence by two levels rather than by one level. We thus vacate the sentence and remand to the district court for resentencing.
FACTS and PROCEEDINGS BELOW
The facts of this case are not in dispute. On the evening of February 18, 1992, at approximately 7:55 p.m., undercover police officer R.F. Benavides drove through the parking lot of an apartment complex in Houston. Benavides was flagged down by Echevaria who asked Benavides what he needed. Benavides told Echevaria that he wished to purchase $120 worth of crack cocaine. Echevaria sold the requested amount of crack to Benavides and was promptly arrested by other police officers on the scene. The parking lot at which the transaction between Echevaria and Benavides took place was 634 feet away from the "Robindell School," a private kindergarten.
During Echevaria's sentencing hearing, the government urged the district court to enhance Echevaria's sentence under § 2D1.2 of the U.S.S.G. because the drug offense occurred within a thousand feet of a "protected location." Echevaria objected to the enhancement, arguing that the Robindell School is not a protected location. The district court agreed with the government that the Robindell School was a protected location and increased Echevaria's sentence by two offense levels. Echevaria was sentenced to 36 months imprisonment to be followed by six years of supervised release.
Section 2D1.2 of the U.S.S.G. provides for an enhanced sentence for offenses occurring near protected locations. Protected locations are defined in 21 U.S.C. 860*fn1 as all areas
within one thousand feet of the real property comprising a public or private elementary, vocational, or secondary school, or a public or private college, junior college, or university, or playground, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility.
It is undisputed that Echevaria sold crack cocaine within one thousand feet of the Robindell School. The question we must resolve is whether the Robindell School, a kindergarten, is a "protected location" within the meaning of § 860.
The government claims that kindergartens are protected locations under § 860 because they fall within the definition of "elementary schools." Unfortunately, § 860 does not define or elaborate on the meaning of "elementary schools." The question of whether a kindergarten is an elementary school for the purposes of § 860 has never been squarely addressed by a federal court. Two federal courts have indicated in dicta that kindergartens are not elementary schools. The Ninth Circuit in United States v. Pitts intimated that elementary schools "may not include day care centers or preschools." 908 F.2d 458, 460 n.4 (9th Cir. 1990). Similarly, the District of Connecticut, in United States v. Parsell, 815 F.Supp 84 (D. Conn. 1993), stated in dicta that under the "rule of lenity" a religious nursery school might well fall outside the scope of § 860.*fn2
To determine whether the Robindell School is an elementary school under § 860, we must examine the purpose behind § 860. Congress enacted § 860 in recognition of the dangers that drugs, and the crimes associated with ...