U.S. v. Crawford, PLAINTIFF-APPELLEE

• Decision Date: 02 August 1999
• Docket Number: PLAINTIFF-APPELLEE,No. 98-30222,DEFENDANT-APPELLANT,98-30222
• Citation: 185 F.3d 1024
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, v. TRINI L. CRAWFORD, A.K.A. MALIK HAYWORTH, A.K.A. T,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1024

185 F.3d 1024 (9th Cir. 1999)

UNITED STATES OF AMERICA PLAINTIFF-APPELLEE, v. TRINI L. CRAWFORD, A.K.A. MALIK HAYWORTH, A.K.A. T, DEFENDANT-APPELLANT.

No. 98-30222

U.S. Court of Appeals, Ninth Circuit

Argued and Submitted June 10, 1999

Decided August 02, 1999

Stephen R. Hormel, Federal Public Defender for Eastern Washington and Idaho, Spokane, Washington, for the defendant-appellant.

Karin B. Hoppmann, United States Department of Justice, Washington, D.C., for the plaintiff-appellee

Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, District Judge, Presiding D.C. No. CR-98-00008-RHW

Before: Donald P. Lay,¹ Alfred T. Goodwin, and M. Margaret McKeown, Circuit Judges.

McKEOWN, Circuit Judge

OPINION

This case requires us to decide which offense guideline section applies when a defendant pleads guilty to a controlled substance offense, but all counts charging that the offense occurred within 1,000 feet of a school are dismissed. In doing so, we must determine the appropriate method for selecting the "offense guideline section... most applicable to the offense of conviction." U.S.S.G. S 1B1.2(a). We hold that the district court erred in using the "relevant conduct" of school proximity to pick the applicable offense guideline section and that such error was not harmless. We therefore reverse and remand for resentencing.

I. Guidelines for Offenses Involving Drugs

We deal here with two offense guideline sections: U.S.S.G. S 2D1.1 and U.S.S.G. S 2D1.2. Section 2D1.1 is captioned "Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy." When, as here, death or serious bodily injury is not involved, section 2D1.1 establishes a base offense level corresponding to the type and quantity of controlled substance at issue, as set forth in the Drug Quantity Table in subsection (c).² For example, the base offense level for an offense like Crawford's, involving at least q20 but less than 35 grams of cocaine base, is 28. U.S.S.G. S 2D1.1(c)(6).

Section 2D1.2 is captioned "Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy." This section states a minimum base offense level of 13, but provides for a higher base offense level under certain circumstances.³ Here, the practical effect of applying U.S.S.G. S 2D1.2 instead of U.S.S.G. S 2D1.1 is a two-point increase in offense level, with a resulting hike in the guideline range.

II. Crawford's Plea and Sentence

Trini L. Crawford appeals from a 120-month sentence imposed following a guilty plea to violating 21 U.S.C. S 841(a)(1) by distributing cocaine base and possessing cocaine base with the intent to distribute. Pursuant to the plea agreement, all other counts of the indictment were dismissed. Of the dismissed counts, four charged distribution of cocaine base within 1,000 feet of a school. Crawford stipulated that, for sentencing purposes, the total amount of cocaine base at issue was 34.6 grams, resulting in a base offense level of 28 under U.S.S.G. S 2D1.1. The government agreed that Crawford was entitled to a three-level reduction for acceptance of responsibility and timely guilty plea pursuant to U.S.S.G. S 3E1.1, resulting in an adjusted offense level of 25. In computing Crawford's guideline range of 120-to-150 months, the district court sua sponte applied U.S.S.G.S 2D1.2, adding two points for conduct occurring near a protected location and assigning Crawford an offense level of 27. On appeal, Crawford contends that he should have been sentenced under U.S.S.G. S 2D1.1. He argues that he was not convicted of an offense for which U.S.S.G. S 2D1.2 is the appropriate guideline section, and that his offense level should have been 25, resulting in a guideline range of 100-to-125 months. We agree.

III. Applicable Offense Guideline Section

We review de novo a district court's interpretation and application of the Sentencing Guidelines. United States v. Bailey, 139 F.3d 667, 667 (9th Cir. 1998). Whether U.S.S.G. S 2D1.2 applies when a defendant pleads guilty to a controlled substance offense under 21 U.S.C. S 841(a),⁴ but not to conduct within 1,000 feet of a school in violation of 21 U.S.C. S 860,⁵ is an issue of first impression in the Ninth Circuit. Only one other circuit, the Fifth Circuit, has addressed this specific issue, holding that use of section 2D1.2 is inappropriate. United States v. Chandler, 125 F.3d 892 (5th Cir. 1997).

In related but somewhat different circumstances involving drug conspiracies under 21 U.S.C. S 846,⁶ four other circuits have weighed in concerning the applicability of U.S.S.G. S 2D1.2. The Fourth and Eleventh Circuits have held that use of section 2D1.2 is improper when the defendant was not convicted of (as opposed to charged with) an offense involving a protected person or location. United States v. Saavedra, 148 F.3d 1311 (11th Cir. 1998); United States v. Locklear, 24 F.3d 641 (4th Cir. 1994); see also United States v. Parsell, 815 F. Supp. 84 (D. Conn. 1993). In contrast, the Sixth and Eighth Circuits have approved use of U.S.S.G. S 2D1.2 in drug conspiracy cases. United States v. Benjamin, 138 F.3d 1069 (6th Cir. 1998) (citing United States v. McDowell, 902 F.2d 451 (6th Cir. 1990)); United States v. Oppedahl, 998 F.2d 584 (8th Cir. 1993). These circuits arrive at different results because they disagree about the role of "relevant conduct " in selecting the applicable offense guideline section. Because this case does not involve a conspiracy conviction, we do not need to reconcile the issues raised by the drug conspiracy cases.

Resolution of the question presented requires us to determine the appropriate method for choosing an offense guideline section. The Sentencing Guidelines establish a ninestep procedure for calculating the appropriate sentence. See U.S.S.G. S 1B1.1; Chandler, 125 F.3d at 897; see also Saavedra, 148 F.3d at 1314. Only certain steps are relevant here. The first and most important step is determining the applicable offense guideline section. The Statutory Index in Appendix A "provides a listing to assist in this determination."⁷ U.S.S.G. S 1B1.1(a). In choosing an appropriate offense guideline section, the court must

[d]etermine the offense guideline section in Chapter Two (Offense Conduct) most applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment... of which the defendant was convicted). Provided, however, in the case of a plea agreement... containing a stipulation that specifically establishes a more serious offense than the offense of conviction, [the court must] determine the offense guideline section in Chapter Two most applicable to the stipulated offense.⁸

U.S.S.G. S 1B1.2(a); see Braxton v. United States, 500 U.S. 344, 346 (1991).

Next, referring to the particular guideline in Chapter 2, the court ascertains the base offense level and applies any appropriate specific offense characteristics. U.S.S.G. S 1B1.1(b). Third, the court makes adjustments as appropriate with regard to victim, role, or obstruction of Justice as specified in Chapter 3, Parts A through C. U.S.S.G.S 1B1.1(c). Then the court includes applicable adjustments for acceptance of responsibility as described in Chapter 3, Part E. U.S.S.G. S 1B1.1(e). Finally, the court must calculate the defendant's criminal history category pursuant to Chapter 4 and determine the guideline range by referring to the table in Chapter 5, Part A. U.S.S.G. S 1B1.1(f) & (g).

Applying these steps to Crawford's case, we note that the Statutory Index identifies section 2D1.1 as the appropriate guideline for violations of section 841(a). U.S.S.G. App. A. Section 2D1.2, on the other hand, is listed as the applicable offense guideline for violations of, among others, 21 U.S.C. SS 846 (attempt or conspiracy), 859 (distribution to minors), 860 (distribution or manufacturing near schools), and 861 (involvement of minors). U.S.S.G. App. A. Crawford was not convicted of any offense under these four sections.⁹ Thus, for Crawford, section 2D1.1 -- relating to drug trafficking -- and not section 2D1.2 -- relating to protected locations or individuals -- is presumptively the guideline "most applicable to the offense of conviction." U.S.S.G. S 1B1.2(a); see Chandler, 125 F.3d at 897 ("According to the Statutory Index, the court is instructed to apply U.S.S.G. S 2D1.1, and not U.S.S.G S 2D1.2, to violations of 21 U.S.C. S 841(a)(1).").

The question remains whether any of the specific offense characteristics listed in U.S.S.G. S 2D1.1 dictated an adjustment to Crawford's base offense level on account of school proximity. They did not. Section 2D1.1 enumerates five specific offense characteristics warranting increases to the base offense level -- proximity to a school is not one of them.¹⁰ See Chandler, 125 F.3d at 898; cf. Locklear, 24 F.3d at 649 ("If the Sentencing Commission wished to include the use of an underage person as a specific offense characteristic warranting sentence enhancement, it could easily have done so in S 2D1.1(b). It did not."). We therefore hold that the district court erred in considering school proximity in computing Crawford's offense level.

IV. Consideration of "Relevant Conduct"

Under our holding, school proximity does not play a role in determining the offense level for a violation of 21 U.S.C. S 841(a). The government, however, argues that, pursuant to U.S.S.G. S 1B1.3(a),¹¹ school proximity may be considered as "relevant conduct" in selecting the applicable offense guideline section. We disagree. Section 1B1.3(a) does not envision consideration of "relevant conduct " in ascertaining which offense guideline to apply, but rather only in choosing among various base offense levels in the chosen guideline and in making adjustments to the offense level. See Saavedra, 148 F.3d at...