8 F.3d 629 (8th Cir. 1993), 93-1588, United States v. Balano

Docket Nº:93-1588.
Citation:8 F.3d 629
Party Name:UNITED STATES of America, Appellant, v. Joseph P. BALANO, also known as Joe Pat, Appellee.
Case Date:November 01, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 629

8 F.3d 629 (8th Cir. 1993)

UNITED STATES of America, Appellant,

v.

Joseph P. BALANO, also known as Joe Pat, Appellee.

No. 93-1588.

United States Court of Appeals, Eighth Circuit

November 1, 1993

Submitted Sept. 15, 1993.

Page 630

Charles E. Ambrose, Jr., Asst. U.S. Atty., Kansas City, MO, argued, for appellant.

Martin D. Warhurst, Kansas City, MO, argued, for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In mid-1992, Joseph Patrick Balano was tried in federal court on two counts of drug-related charges--conspiracy to distribute more than five kilograms of cocaine in early 1991, and distribution of one ounce (approximately 28 grams) of cocaine in December, 1991. A jury acquitted him on the conspiracy count and convicted him on the distribution count.

At sentencing, the trial court found that the evidence was clear and convincing that Mr. Balano had participated in the conspiracy charged. 813 F.Supp. 1423. The trial court also held, however, that Mr. Balano's participation in that conspiracy was not relevant conduct that had to be considered under the federal sentencing guidelines, see U.S.S.G. § 1B1.3(a)(2), § 2D1.1(a)(3) application note 12, in determining the appropriate sentence for the distribution count. The government appeals that ruling. We affirm the trial court. 1

I.

The federal sentencing guidelines provide that in arriving at the base offense level with respect to a conviction for distribution of cocaine, see U.S.S.G. § 2D1.1(a)(3), the trial court may consider "quantities of drugs not specified in the count of conviction." Id. application note 12. That calculation by the trial court "shall be determined" on the basis of relevant conduct--"all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).

The guidelines define acts and omissions included in the "same course of conduct" as those "sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses. Factors [appropriately considered] ... include the degree of similarity of the offenses and the time interval between the offenses." U.S.S.G. § 1B1.3(a)(2) application note...

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