U.S. v. Hahn

• Decision Date: 07 April 1992
• Docket Number: No. 89-10592,89-10592
• Citation: 960 F.2d 903
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Y.B. HAHN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 903

960 F.2d 903

4 Fed.Sent.R. 285

UNITED STATES of America, Plaintiff-Appellee, v. Paul Y.B. HAHN, Defendant-Appellant.

No. 89-10592.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 18, 1991.

Submission Vacated and Deferred Jan. 30, 1991.

Resubmitted Jan. 8, 1992.

Decided April 7, 1992.

John Ashford Thompson, Honolulu, Hawaii, for defendant-appellant.

R. Michael Burke, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: TANG and NOONAN, Circuit Judges, and SHUBB, ^* District Judge.

TANG, Circuit Judge:

Paul Y.B. Hahn was convicted after a jury trial on four counts related to the illegal possession of a firearm and slightly less than a gram of methamphetamine. In similar cases involving this amount of methamphetamine, the United States Sentencing Guidelines prescribe a range of ten to sixteen months' incarceration. Yet on the drug possession offenses, Hahn was

                sentenced to prison for ninety-seven months--just over eight years--because of "relevant conduct" which occurred more than five months prior to the conduct for which Hahn was convicted.   The issue before us concerns whether conduct extraneous to a conviction is nevertheless relevant in passing sentence.   We vacate Hahn's sentence and remand for resentencing
                

FACTS AND PROCEEDINGS

On March 18, 1989, Honolulu police approached Hahn's parked car to investigate a discrepancy between the car's apparently valid registration sticker and a report that the car's registration had expired. When Hahn opened one of the car's tinted windows, the police saw a pistol lodged between the car's seats. Hahn and Lori Mitsunaga, the car's other occupant, were then arrested. Two searches of the car resulted in the seizure of approximately 92/100ths of a gram of methamphetamine contained in a total of nine separate packets.

Hahn was indicted on four counts, all based strictly on the events of March 18, 1989: (1) possession of a firearm in commerce by an unlawful user or addict of a controlled substance, in violation of 18 U.S.C. § 922(g)(3); (2) possession of a controlled substance, in violation of 21 U.S.C. § 844; (3) carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (4) possession of approximately four grams of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). ¹

At trial, the government presented testimony from Mitsunaga, her brother, and others, that Hahn was involved in large-scale methamphetamine dealing and had carried firearms in the year prior to his arrest. Law enforcement officers also testified that Hahn admitted dealing methamphetamine for more than a year prior to his arrest and selling a quarter of a pound of the drug per day in July and August of 1988. Pursuant to Fed.R.Evid. 404(b), the district court instructed the jury to consider this evidence only for the purpose of determining the intent element of the crime concerning the charge of possession with intent to distribute. The jury convicted Hahn on all four counts.

After trial, a presentence report was prepared. The report recounted not only Hahn's conduct relating to the offenses charged in the indictment, but also his methamphetamine dealing and carrying of firearms in the prior year. The report relied on interviews with witnesses, law enforcement officers, and Hahn, rather than on the trial testimony. The report included Hahn's admission to a law enforcement officer that he had made daily sales of a quarter pound of methamphetamine in July and August of 1988. It also included Hahn's admission to the probation officer that he had sold an ounce of the drug every three days between June and September 1988.

In calculating Hahn's base offense level for the possession with intent to distribute conviction (Count Four of the indictment), the presentence report did not use the less-than-a-gram quantity actually found in Hahn's possession when arrested in March 1989. Neither did it use the four-gram quantity mentioned in the indictment. Instead, the report relied on Hahn's admission that he had sold an ounce every three days between June and September 1988. In his report, the probation officer multiplied days by ounces-sold-per-day to arrive at a total amount of forty ounces sold. When Hahn was sentenced on October 16, 1989, the Sentencing Guidelines prescribed a base offense level of twenty-eight for possession of forty ounces of methamphetamine with intent to distribute. With Hahn's base offense level at twenty-eight, the Guidelines indicated the range for Hahn's sentence on Counts Two and Four to be seventy-eight to ninety-seven months. ² If the report had employed the Hahn objected to the use of the estimated forty ounces of methamphetamine to determine his base offense level. At the sentencing hearing, the government called to the witness stand Wayne Wong, the probation officer who prepared the presentence report. Officer Wong testified to Hahn's admission on which the forty ounce estimate was based. Furthermore, Drug Enforcement Administration Agent Howard testified to Hahn's admission that, during his "peak times" in the summer of 1988, he was selling a quarter pound of methamphetamine per day. During the sentencing hearing, the government also expressly referred to testimony at Hahn's trial concerning narcotics activity between September 1988 and Hahn's arrest in March 1989. ⁴ Further reference was made to "a certain notebook ... and certain papers of the defendant[ ]" detailing drug sales. At sentencing, however, defense counsel objected to this documentary evidence. From this objection, and the government's response thereto, it does not appear that this evidence was considered in determining whether the government proved facts sufficient to support Hahn's sentence. ⁵

                less-than-a-gram of methamphetamine underlying Hahn's convictions, however, Hahn's possible sentence for Counts Two and Four would have ranged only from ten to sixteen months.   See United States Sentencing Commission, Guidelines Manual, § 2D1.1 (Oct. 15, 1988). 3
                

The district court denied Hahn's objections and adopted the presentence report's calculations. The court sentenced Hahn to 157 months in prison, including ninety-seven months for the possession with intent to distribute conviction. Hahn timely appeals and raises the following four contentions concerning his sentence: (1) The Sentencing Guidelines deny due process in failing to provide for an individualized sentence; (2) the district court improperly relied on the June-September 1988 activities in sentencing Hahn for activities occurring in March 1989; (3) if the 1988 events are to form the basis of Hahn's sentence, they should be proved beyond a reasonable doubt; and (4) in any event, the district court erred in relying solely on Hahn's own admission of his activities occurring in 1988.

We reject summarily the first contention. See United States v. Brady, 895 F.2d 538, 540 (9th Cir.1990). Our resolution of the second contention obviates any present need to consider either the third or the fourth. We therefore leave these latter issues for future consideration by the district court.

STANDARD OF REVIEW

We review the legality of Hahn's sentence de novo. United States v. Turner, 898 F.2d 705, 708 (9th Cir.), cert. denied, 495 U.S. 962, 110 S.Ct. 2574, 109 L.Ed.2d 756 (1990). Whether conduct extraneous to an offense of conviction is part of the same "course of conduct" or "common scheme or plan" as the offense of conviction so as to be considered "relevant conduct" within the meaning of Guidelines § 1B1.3(a)(2), is reviewed for clear error. United States v. Motz, 936 F.2d 1021, 1026 (9th Cir.1991); United States v. Lillard, 929 F.2d 500, 504 (9th Cir.1991); Turner, 898 F.2d at 711.

DISCUSSION

A. Background

As indicated by its accompanying commentary, Guidelines section 2D1.1 governs the determination of a defendant's base offense level for possession with intent to distribute a controlled substance. Specifically, section 2D1.1 requires that the base offense level be determined in part on the basis of the quantity of illegal drugs attributable to the offense of conviction.

Under the Guidelines, the relevant quantity of controlled substances is not limited to the amount of illegal drugs directly involved in the offense of conviction. United States v. Nakagawa, 924 F.2d 800, 803 (9th Cir.1991). Instead, Guidelines § 1B1.2(b) instructs federal sentencing courts to determine the pertinent amount of drugs in accordance with the principles of "relevant conduct" set forth in Guidelines § 1B1.3.

Pursuant to section 1B1.3(a)(2), the Guidelines in effect at the time of Hahn's sentencing advise that, "in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." U.S.S.G. § 1B1.3 comment. (backg'd) (Oct. 15, 1988) (emphasis added). ⁶ The district court applied this provision to sentence Hahn on the basis of the June through September 1988 drug-related activities--activities for which Hahn was never indicted, tried, or convicted.

Under pre-Guidelines sentencing practice, a district court could properly look to almost any activity of the defendant in determining a just punishment. United States v. Restrepo, 946 F.2d 654, 655 (9th Cir.1991); id. at 665-66 & n. 1 (Norris, J., dissenting); United States v. Ebbole, 917 F.2d 1495, 1496 (7th Cir.1990). With the institution of the Sentencing Guidelines, however, consideration of certain conduct at sentencing became mandatory rather than merely discretionary. Restrepo, 946 F.2d at 655 (accepting defendant's premise that "the Sentencing Guidelines ... mandate the sentencing effect of uncharged crimes"); id. at 664-65, 669 ...