U.S. v. Newland

• Decision Date: 19 June 1997
• Docket Number: 96-10249,Nos. 96-10208,s. 96-10208
• Citation: 116 F.3d 400
• Parties: 97 Cal. Daily Op. Serv. 4655, 97 Daily Journal D.A.R. 7690 UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, v. Nick NEWLAND, Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 400

116 F.3d 400

97 Cal. Daily Op. Serv. 4655, 97 Daily Journal

D.A.R. 7690

UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, v. Nick NEWLAND, Defendant-Appellee-Cross-Appellant.

Nos. 96-10208, 96-10249.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 14, 1997.

Decided June 19, 1997.

James D. Whitney, Assistant United States Attorney, Tucson, AZ, for plaintiff-appellant-cross-appellee.

Jeffrey D. Bartolino, Tucson, AZ, for defendant-appellee-cross-appellant.

Appeals from the United States District Court for the District of Arizona; Richard M. Bilby, District Judge, Presiding. D.C. No. CR-91-00446-RMB.

Before: D. W. NELSON, FERNANDEZ, Circuit Judges and MOLLOY, ^* District Judge.

D. W. NELSON, Circuit Judge:

Nick Newland appeals the sentence imposed upon his jury conviction of two counts of conspiracy and three counts of money laundering. Newland contends that the district court erred in applying § 4B1.1, the career offender provision of the United States Sentencing Guidelines. The government also appeals the sentence and contends that the district court erred because it refused to consider drug quantities imported and possessed by Newland's coconspirators when it determined Newland's base offense level for conspiracy. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

In 1988, the government uncovered evidence of a criminal organization (the "Guzman organization") that imported large quantities of cocaine and marijuana from Mexico to Arizona. Nick Newland assisted the organization in various ways. For example, Newland purchased a Tucson warehouse that was later used to store contraband that had been imported by the Guzman organization. On March 24, 1993, a federal grand jury charged Newland with (1) conspiracy to import cocaine and importation of cocaine in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2; (2) conspiracy to possess with intent to distribute, and possession with intent to distribute, marijuana and cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2; and (3) three counts of money laundering and aiding and abetting in violation of 18 U.S.C. § 1956(a)(1)(A), (a)(1)(B)(i) and 18 U.S.C. § 2. On June 8, 1993, a jury convicted Newland on all counts. On October 18, 1993, the district court sentenced Newland to concurrent terms of 324 months on the drug offenses and 240 months on the money laundering offenses.

This court reversed Newland's substantive drug offense convictions. We explained that "as an aider and abettor [Newland] cannot be held liable under a Pinkerton[v. U.S., 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)] theory for the subsequent acts of his coconspirators." United States v. Newland, No. 93-10593, 1995 WL 422515 (9th Cir. July 14, 1995). We affirmed Newland's money laundering convictions and his convictions of conspiracy to import cocaine and conspiracy to possess with intent to distribute marijuana and cocaine, and remanded to the district court for resentencing.

The district court resentenced Newland on April 12, 1996. The court determined that it could not consider the drug quantities imported or possessed by the Guzman organization because the Ninth Circuit had concluded that Newland could not be held liable under Pinkerton for the substantive acts of the conspiracy. Accordingly, the court sentenced Newland to the mandatory minimum (60 months) on the conspiracy counts. The court determined that Newland laundered $180,968.65 and assigned him an offense level of 24 on the money laundering counts. The sentencing court also determined that Newland was a career offender and assigned him a criminal history category of six. See U.S.S.G. § 4B1.1. These determinations produced a sentencing range of 100 to 125 months, and the court imposed a sentence of 105 months on the money laundering counts, to run concurrently with Newland's 60-month sentence on his conspiracy counts. Newland and the government both appeal from this sentence.

DISCUSSION

We review the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996).

I. Conspiracy as a "controlled substance offense"

A defendant may be classified as a career offender if, inter alia, "the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1. ¹ The Sentencing Commission has determined that "[t]he terms 'crime of violence' and 'controlled substance offense' include the offense[ ] of ... conspiring ... to commit such offenses." U.S.S.G. § 4B1.2, comment. (n.1). Newland argues that the Commission lacks the authority to define conspiracy as a "controlled substance offense," and that Newland's classification as a career offender was erroneous insofar as such classification was based upon Newland's instant conviction for participation in the drug-related conspiracy.

We rejected this precise argument in United States v. Heim, 15 F.3d 830, 832 (9th Cir.1994), where we upheld the Sentencing Commission's authority pursuant to 28 U.S.C. § 994(a)(2) to include conspiracy within the definition of "controlled substance offense." See also United States v. O'Brien, 52 F.3d 277, 279 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 231, 133 L.Ed.2d 160 (1995). Thus, in this circuit, Newland's argument fails. Our decision is in accord with the weight of authority in the circuit courts. Only the D.C. Circuit and the Fifth Circuit have rejected the Sentencing Commission's inclusion of conspiracy within the definition of "controlled substance offense." See United States v. Bellazerius, 24 F.3d 698, 702 (5th Cir.1994); United States v. Price, 990 F.2d 1367, 1369-70 (D.C.Cir.1993). Every other circuit has rejected Price and has found that the Application Notes to U.S.S.G. § 4B1.2 were properly implemented pursuant to the Commission's broad mandate under 28 U.S.C. § 994(a), (h) (1994). See United States v. Piper, 35 F.3d 611, 616-18 (1st Cir.1994); United States v. Jackson, 60 F.3d 128, 131-32 (2d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 487, 133 L.Ed.2d 414 (1995); United States v. Hightower, 25 F.3d 182, 186-87 (3d Cir.1994); United States v. Kennedy, 32 F.3d 876, 888-90 (4th Cir.1994); United States v. Williams, 53 F.3d 769, 772 (6th Cir.1995), cert. denied, --- U.S. ---- 116 S.Ct. 928, 133 L.Ed.2d 856 (1996); United States v. Damerville, 27 F.3d 254, 257 (7th Cir.1994); United States v. Mendoza-Figueroa, 65 F.3d 691, 693 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 939, 133 L.Ed.2d 864 (1996); United States v. Heim, 15 F.3d 830, 832 (9th Cir.1994); United States v. Allen, 24 F.3d 1180, 1185-87 (10th Cir.1994); United States v. Weir, 51 F.3d 1031, 1031-32 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996).

II. Application of the career offender provision where the sentence is controlled by a money laundering offense

Newland argues that even if his conspiracy conviction could trigger the career offender provision, his money laundering conviction does not trigger § 4B1.1 because it is not a controlled substance offense. Therefore, argues Newland, the use of his money laundering conviction to calculate the offense guideline precludes reliance on the career offender provision.

Newland's attempt to rewrite the Guidelines is unavailing. The career offender provision is applicable where "the instant offense of conviction is a felony that is ... a controlled substance offense." U.S.S.G. § 4B1.1. Newland is being sentenced on two instant offenses, one of which qualifies as a "controlled substance offense." The grouping provisions of the Guidelines mandate that one offense level be calculated for both of these offenses. See U.S.S.G. § 3D1.3(a) ("[T]he offense level applicable to a Group is the offense level ... for the most serious of the counts comprising the Group, i.e., the highest offense level of the counts in the Group."). Newland's money laundering conviction determined a unitary offense level that encompasses both of Newland's "instant" offenses: money laundering and drug conspiracy. Applying the career offender provision to this base offense level thereby executes Congress's intent to punish more severely those who repeatedly engage in drug crimes. See 28 U.S.C. § 994(h) (1994) ("The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized" for career criminals.).

To accept Newland's logic would be to subvert the purpose behind the career offender provision. Newland wants to avoid the provision because he has committed an additional crime that, by fortuity, is grouped with his drug offense and carries a marginally greater base offense level. Repeat drug offenders like Newland would be spared a harsher sentence simply because they had engaged in more criminal conduct. The Guidelines should not be strained to reach such an unreasonable result. Accordingly, we affirm the district court's decision to invoke the career criminal provision in this case.

III. Relevant conduct

In its appeal, the government contends that the district court was required to consider the amount of drugs imported and possessed by Newland's coconspirators when it calculated Newland's base offense level for conspiracy. The district court believed that it was precluded from considering this sum because of our previous holding that as a mere aider and abettor of the drug conspiracy, Newland could not be liable under Pinkerton for the subsequent acts of his coconspirators. See Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946). The district court interpreted this holding to mean that Newland's offense level could not be based upon the drug quantities associated with his coconspirators' acts.

In order to determine the...