U.S. v. Azeem, 1445
| Decision Date | 30 September 1991 |
| Docket Number | D,No. 1445,1445 |
| Citation | 946 F.2d 13 |
| Parties | UNITED STATES of America, Appellee, v. Mohammad AZEEM, also known as Khan Azim, Defendant-Appellant. ocket 90-1635. |
| Court | U.S. Court of Appeals — Second Circuit |
Eric Corngold, Brooklyn, N.Y. , for appellee.
Sam A. Schmidt, New York City (Barocas & Schmidt, of counsel), for defendant-appellant.
Before KEARSE and MAHONEY, Circuit Judges, and SNEED, * Senior Circuit Judge.
I.
The drug conspiracy began in April of 1987 when defendant Mohammad Azeem and two others, including a Drug Enforcement Agency (DEA) informant, met in Pakistan to discuss importing one kilogram of heroin into New York. In May of 1987, Azeem delivered the heroin to the informant, who transported it from Pakistan to New York. 1 The informant was unable to sell the heroin. He testified that he returned to Pakistan when Azeem told him to store the heroin in New York and come back to arrange a shipment to Cairo, Egypt.
Upon the informant's return, Azeem, the informant, and the same third party arranged the delivery of three kilograms of heroin from Pakistan to Cairo. In June of 1987, the informant took the heroin to Cairo and delivered it to a new party, who thereupon was arrested.
The informant came back to New York in October of 1987 to attempt to sell the original one kilogram of heroin but once more was unsuccessful. He again stored the heroin in New York and returned to Pakistan in October of 1987. There was conflicting testimony at trial concerning whether Azeem sold his interest in the New York heroin to a coconspirator to satisfy a debt or whether he merely promised to give that party the proceeds once the New York heroin was sold. The testimony does not show when this agreement was reached.
Azeem moved temporarily to the Philippines in December of 1987, where he attempted to sell 200 grams of heroin to an undercover agent.
The informant testified that in the summer of 1989, Azeem, apparently still unaware of the informant's true status, approached him with a scheme to get rid of the New York heroin. Azeem would volunteer to work for the DEA as an informant and claim that the heroin had recently been imported by someone else. The DEA met with Azeem and pretended to be fooled by his scheme. When Azeem arrived in New York, the DEA arrested him for the 1987 importation of the New York heroin.
On May 7, 1990, a jury convicted Azeem of conspiring to import heroin into the United States in 1987. The district court judge sentenced him under the Sentencing Guidelines. In calculating the amount of drugs involved for the purpose of determining the base offense level, the judge included the one kilogram of New York heroin, the three kilograms of heroin in the Cairo transaction, and the 200 grams in the Philippines transaction. The judge also increased the base offense level by two points on the ground that Azeem had given false testimony at trial.
Azeem claimed that the Sentencing Guidelines should not apply because the crime for which he was convicted, conspiracy to import heroin, ended before the November 1, 1987 effective date of the Guidelines. The judge disagreed, ruling that the case involved an offense which continued after the effective date of the Guidelines because the object of the conspiracy--that is, to obtain money by disposing of the heroin in New York--continued after 1987. Azeem also objected that the heroin from the other transactions should not have been included in his base offense level.
On appeal, Azeem renews his argument that he should not have been sentenced under the Sentencing Guidelines. He also continues to argue that the judge should not have included the Cairo transaction in determining the base offense level because 1) it was not part of the same crime and 2) it was not a crime against the United States. 2
II.
This court has jurisdiction under 18 U.S.C. § 3742.
III.
Factual determinations underlying the district court's application of the Sentencing Guidelines are upheld unless they are clearly erroneous. See United States v. Cousineau, 929 F.2d 64, 67 (2d Cir.1991); see also 18 U.S.C. § 3742(e). The district court's legal interpretation of a sentencing guideline is reviewed de novo. United States v. Irabor, 894 F.2d 554, 555 (2d Cir.1990).
IV.
Azeem's claim on appeal that the Guidelines are inapplicable is meritless. Azeem contends that he should not have been sentenced under the Guidelines because the offense for which he was convicted, conspiracy to import heroin, ended when the heroin reached the United States in May of 1987, prior to the November 1, 1987 effective date of the Guidelines. In the alternative, he argues that he terminated his role in the conspiracy prior to the effective date by consigning his interest.
This court has held that the Sentencing Guidelines apply to "straddle offenses," that is, continuing offenses begun before November 1, 1987 and continuing after that date. United States v. McCall, 915 F.2d 811, 816 (2d Cir.1990). A conspiracy continues after the occurrence of the underlying offense and is not completed until the conspirators receive their payoffs. See United States v. Knuckles, 581 F.2d 305, 313 (2d Cir.) ( that hearsay statements by a coconspirator are admissible into evidence when made "before the spoils are divided among the miscreants"), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978); see also United States v. Mennuti, 679 F.2d 1032, 1035 (2d Cir.1982) ().
Obviously, the goal of the Azeem conspiracy was not merely to import the heroin but to sell it and distribute the proceeds. Accordingly, the district court properly found that this conspiracy did not end with the May 1987 heroin importation. The court also found that Azeem did not terminate his involvement by consigning his interest, and that in fact Azeem personally committed acts in furtherance of the conspiracy, by pretending to be a DEA informant in order to dispose of the heroin, as late as 1989. Therefore, the district court's finding that Azeem's offense continued after the November 1, 1987 effective date of the Sentencing Guidelines was not clearly erroneous.
Azeem's second claim is that the Cairo heroin should not have been included with the New York heroin in his base offense level because each transaction was the object of a different conspiracy, with different goals and time frames, and not part of a common scheme. This claim also lacks merit.
Section 1B1.3 of the Sentencing Guidelines provides that the base offense level for drug-related crimes shall be determined on the basis of all drug transactions 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) (Nov.1990) (emphasis added); see also id., commentary n. 2. The "same course of conduct" is defined apart from "common scheme or plan" and looks to "whether the defendant repeats the same type of criminal activity over time" without requiring that acts be connected by common participants or an overall scheme. United States v. Perdomo, 927 F.2d 111, 115 (2d Cir.1991) ().
Here, Azeem used the same courier to transport heroin on two separate occasions. The Cairo transaction began shortly after the New York heroin reached the United States. The district court's finding that these transactions represented the same type of criminal activity and thus the same course of conduct was not clearly erroneous.
While we reject Azeem's claim that the Cairo and New York transactions were not part of the same course of conduct, we agree that the Cairo transaction should not have been included in the base offense level calculation because it was not a crime against the United States.
The district court's inclusion of the Cairo heroin affected Azeem's sentence in the following manner. Azeem was convicted of conspiracy to import one kilogram of heroin. Importation of one to three kilograms of heroin requires a base offense level of 32. See U.S.S.G. §§ 2D1.1(a)(3), 2D1.1(c)(6). Given a two point increase to Level 34 for false testimony, and a Criminal History Category of I, which are not challenged on appeal, the guideline sentence for the New York heroin alone would have been 151 to 188 months. See U.S.S.G. Ch. 5, Part A.
By adding the three kilograms of Cairo heroin, the district court increased the base offense level to 36 (importation of three to ten kilograms, plus two points for false testimony), with a guideline sentence of 188 to 235 months. S...
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