U.S. v. McDougherty

• Decision Date: 28 November 1990
• Docket Number: No. 89-50245,89-50245
• Citation: 920 F.2d 569
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lesester D. McDOUGHERTY, aka Lester Johnson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 569

920 F.2d 569

UNITED STATES of America, Plaintiff-Appellee, v. Lesester D. McDOUGHERTY, aka Lester Johnson, Defendant-Appellant.

No. 89-50245.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 11, 1990.

Decided Nov. 28, 1990.

Mary F. Gibbons, North Hollywood, Cal., for defendant-appellant.

Richard E. Robinson, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before REINHARDT and HALL, Circuit Judges, and RE, Chief Judge. ^*

CYNTHIA HOLCOMB HALL, Circuit Judge:

Lesester McDougherty appeals his conviction and sentence for distribution of a controlled substance within 1000 feet of an elementary school in violation of 21 U.S.C. Secs. 841(a)(1) and 845a, and his conviction and sentence for aiding and abetting possession with intent to distribute cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. We have jurisdiction pursuant to 28 U.S.C. Secs. 1291 and 18 U.S.C. Sec. 3742(a) and we affirm.

DISCUSSION

McDougherty's conviction arose from his sale of two pieces of cocaine base to an undercover police officer in a park approximately 690 feet from an elementary school. McDougherty was sentenced to a prison term of 262 months, followed by six years of supervised release. He argues that the district court erred in denying his motion to dismiss the indictment under 21 U.S.C. Sec. 845a on various constitutional grounds. In addition, McDougherty claims that he was improperly classified as a career offender, that the government failed to comply with the procedures of 21 U.S.C. Sec. 851 in enhancing his sentence, that the district court's use of the Presentence Report violated due process, and that his sentence violates the eighth amendment. We address each argument in turn.

I.

The denial of McDougherty's motion to dismiss the indictment on constitutional grounds is a question of law which we review de novo. United States v. Savinovich, 845 F.2d 834, 839 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988). McDougherty raises three constitutional arguments, all of which have been recently rejected by this circuit in United States v. Thornton, 901 F.2d 738 (9th Cir.1990).

McDougherty first contends that the schoolyard provision violates due process by creating an irrebuttable presumption that the sale of drugs near a school is per se dangerous and threatening to children, citing Leary v. United States, 395 U.S. 6, 12, 89 S.Ct. 1532, 1535, 23 L.Ed.2d 57 (1969) (statutory presumption of knowledge of importation upon proof of possession violates due process). However, that case allowed the jury to presume the mens rea element of the offense from another set of facts. The Leary case is irrelevant here, where no presumptions as to guilt apply. The schoolyard provision is simply a congressional determination that drug dealing within the proximity of a school merits enhanced penalties. Thornton, 901 F.2d at 740. See also McMillan v. Pennsylvania, 477 U.S. 79, 87, 106 S.Ct. 2411, 2416, 91 L.Ed.2d 67 (1986); United States v. Holland, 810 F.2d 1215, 1220-22 (D.C.Cir.), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854 (1987); United States v. Agilar, 779 F.2d 123, 125-26 (2d Cir.1985), cert. denied, 475 U.S. 1068, 106 S.Ct. 1385, 89 L.Ed.2d 609 (1986).

McDougherty next argues that section 845a violates his right to equal protection because it is both overinclusive (punishes those whose drug transactions near schools do not involve children) and underinclusive (fails to punish those who sell drugs to children over 1,000 feet from a school). This precise argument was rejected by our circuit in Thornton, where the court determined that "the congressional goal of reducing the availability and hence the use of drugs by school children is rationally achieved by increasing the penalties for those who sell drugs near schools." ¹ Thornton, 901 F.2d at 740. The statute is not unconstitutionally overinclusive because the consequences of drug transactions near schools, even when children are not direct participants, contribute to the "violent and dangerous criminal milieu Congress sought to eliminate" in enacting the statute. Id. (quoting Holland, 810 F.2d at 1219). The statute may be underinclusive, but equal protection does not require Congress to eliminate all evils in order to legislate against some. Thornton, 901 F.2d at 740.

Finally, McDougherty argues that Congress exceeded its plenary authority under the Commerce Clause, Article I, section 8 of the Constitution in enacting section 845a. "A congressional finding that an activity affects interstate commerce must be afforded controlling deference if there is a rational basis for that judgment." Nevada v. Skinner, 884 F.2d 445, 450 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1112, 107 L.Ed.2d 1019 (1990). Congress has already determined, and the courts have accepted as rational, that drug trafficking affects interstate commerce. United States v. Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir.1977) (en banc), cert. denied, 435 U.S. 947, 98 S.Ct. 1532, 55 L.Ed.2d 545 (1978). It would be highly illogical to believe that such trafficking somehow ceases to affect commerce when carried out within 1000 feet of a school. ² Thornton, 901 F.2d at 741. There is no legal reason why Congress cannot choose to punish some behavior affecting commerce more harshly than other behavior, based upon its detriment to society.

II.

The legality of McDougherty's sentence imposed under the career offender provision of the Sentencing Guidelines is reviewed de novo. United States v. Marco L., 868 F.2d 1121, 1123 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989). McDougherty contends that the district court erred in sentencing him as a career offender, because one of his predicate offenses was not a crime of violence within the meaning of the Guidelines.

Guideline Sec. 4B1.1 provides in part that a defendant is a career offender if he "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." ³ The term "a crime of violence" is defined in section 4B1.2 by reference to 18 U.S.C. Sec. 16. That section describes a crime of violence as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Commentary to that Guideline section provides that " 'crime of violence' " includes "murder, manslaughter, kidnapping, aggravated assault, extortionate extension of credit, forcible sex offenses, arson, or robbery." Guideline Sec. 4B1.2, Application Note 1 (Jan. 15, 1988).

The two predicate crimes of violence which the district court used to assign McDougherty career offender status were battery (in violation of Cal. Penal Code Sec. 4501.5) and robbery (in violation of Cal. Penal Code Sec. 211). McDougherty argues that his robbery conviction should not have been counted because it was not necessarily a crime of violence. This argument fails.

Although it appears that McDougherty used a knife in connection with this robbery, he was not convicted of this (the enhancement under Cal. Penal Code Sec. 12022(b) for use of a knife was never imposed) and thus it cannot form the basis of a predicate conviction for a crime of violence. In any case, the court should not have to consider the specific conduct of the defendant in committing the predicate offense, or sentencing hearings will turn into unmanageable mini-trials themselves. Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607 (1990) ("[T]he language of Sec. 924(e) generally supports the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior conviction."); United States v. Sherbondy, 865 F.2d 996, 1008 (9th Cir.1988). This circuit has already held that persons convicted under the federal robbery statute, 18 U.S.C. Sec. 2113(a), have committed a crime of violence within the meaning of Guideline Sec. 4B1.1. United States v. Selfa, 918 F.2d 749, 751-52 (9th Cir., 1990), petition for cert. filed, (U.S. Aug. 10, 1990) (No. 90-5422) (applying Taylor's catagorical approach to the career offender provision of the Guidelines). We hold that robbery under California law is also by definition a crime of violence.

The California robbery statute prohibits "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Cal. Penal Code Sec. 211. Fear is defined as either "1. [t]he fear of an unlawful injury to the person or property of the person robbed ... or, 2. [t]he fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." Cal. Penal Code Sec. 212. This definition of robbery meets the requirements of Guidelines Sec. 4B1.2.

McDougherty argues that his robbery conviction did not constitute a crime of violence because it would be possible to commit the offense without the use of physical force. This same argument could be made about 18 U.S.C. Sec. 2113(a), which this circuit had already declared to be a crime of violence in Selfa. That statute includes not only taking money from a bank by force, but also entering a bank with the intent to commit any felony affecting the bank or any larceny. Use of physical force against the victim is only one element of 18 U.S.C. Sec. 16(b)'s definition of a "crime of violence." Threatening to use physical force against...