U.S. v. Restrepo, 88-3207

• Citation: 883 F.2d 781
• Decision Date: 24 August 1989
• Docket Number: No. 88-3207,88-3207
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dario RESTREPO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 781

883 F.2d 781

2 Fed.Sent.R. 131

UNITED STATES of America, Plaintiff-Appellee, v. Dario RESTREPO, Defendant-Appellant.

No. 88-3207.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 6, 1989.

Decided Aug. 24, 1989.

Ted J. Stepovich, Fairbanks, Alaska, for defendant-appellant.

Stephen Cooper, Asst. U.S. Atty., Fairbanks, Alaska, for plaintiff-appellee.

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

Before PREGERSON, BOOCHEVER and NOONAN, Circuit Judges.

PREGERSON, Circuit Judge:

Dario Restrepo appeals his forty-six month prison sentence imposed after he was convicted of two counts of distribution of cocaine. The appeal presents the following question concerning the interpretation of the new Sentencing Guidelines ¹ ("Guidelines"): In sentencing Restrepo, did the district court err in construing the Guidelines' Multiple Counts section (Chapter Three, Part D) to apply to conduct that did not result in his conviction. We conclude that conduct that does not result in a criminal conviction should not be considered under the Multiple Counts section in fixing the appropriate guideline range for a narcotics offense. We therefore reverse and remand to the district court for resentencing.

BACKGROUND

On March 8, 1988, Restrepo was indicted on two counts of distribution of cocaine (counts I and II) under 21 U.S.C. Sec. 841(a)(1). ² His co-defendant, Judith DeMaldonado, also was charged with distribution of cocaine in count II. Additionally, she was indicted for possession of cocaine with intent to distribute (counts III and IV) in violation of 21 U.S.C. Sec. 841(a)(1). DeMaldonado pled guilty to counts II, III, and IV and agreed to testify against Restrepo in exchange for a lighter sentence. At trial, DeMaldonado testified that Restrepo provided all the cocaine that she had sold. Restrepo was convicted on counts I and II.

At Restrepo's sentencing hearing, held on August 5, 1988, DeMaldonado, the sole witness, repeated her trial testimony. At this time Restrepo challenged the constitutionality of the Guidelines on due process and separation of powers grounds. Restrepo also objected to how the district court's applied sections 3D1.1 (the Multiple Counts section) and 1B1.3 (the Relevant Conduct section) in determining the appropriate sentence guideline range for the offenses of which he was convicted. The court overruled the objections.

The court then found that all the drugs involved in the charges against Judith DeMaldonado set forth in counts III and IV were part of a common scheme in which Restrepo was a participant. ³ Based on this

                finding, and pursuant to the Multiple Counts section of the Guidelines, Part 3D, the court then ruled that the quantity of drugs involved in the charges against DeMaldonado (counts III and IV) were to be added to the quantity of drugs involved in the charges against Restrepo (counts I and II) for the purpose of fixing the appropriate guideline range of Restrepo's sentence. 4   As a result, the court adopted the guideline range of forty-one to fifty-one months imprisonment.  The court then sentenced Restrepo to a forty-six month prison term.  Had the district court not aggregated the drugs involved in counts III and IV with the drugs involved in counts I and II, the guideline range for Restrepo's sentence would have been thirty-three to forty-one months. 5
                

STANDARD OF REVIEW

Generally, we review a sentence imposed on a criminal defendant for abuse of discretion. United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986). However, "[i]ssues of statutory construction are questions of law which we ordinarily review de novo." Pathfinder Mines Corp. v. Hodel, 811 F.2d 1288, 1290 (9th Cir.1987) (citing United States v. McConney, 728 F.2d 1195 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)).

ANALYSIS

The issue here is whether the district court erred in determining the "total offense level" for Restrepo's convictions. Section 1B1.1 of the Guidelines ⁶ provides instructions for applying the Guidelines to fix the convicted defendant's total offense level. The trial court first determines the "base offense level" by resort to the guideline section of Chapter Two most applicable to the statute of conviction. Additionally, the particular guideline section in Chapter Two may contain specific offense characteristics which, if applicable, will enhance the basic offense level. Next, the court applies any appropriate adjustments to the offense level under the victim, role, and obstruction of justice provisions in Chapter Three. Section 1B1.3 sets forth conduct by the defendant that is relevant to the application of the adjustment provisions in Chapters Two and Three.

In case of multiple counts of conviction, these steps are repeated for each count. Then the court uses the procedures in Part D of Chapter Three to determine the "combined offense level" for all the counts of conviction taken together. Finally, the court makes any appropriate adjustment related to the defendant's acceptance of responsibility (Part E of Chapter Three). What results is the total offense level.

Restrepo contends that the district court misconstrued the Multiple Counts section of the Guidelines because it treated Restrepo's alleged conduct in supplying DeMaldonado the cocaine involved in counts III and IV of which she was convicted as if Restrepo has also been convicted of counts III and IV. ⁷

Application of Part 3D, the Multiple Counts section of the Guidelines, is essentially a two-step procedure. First, applying Section 3D1.2, the court combines multiple counts into a single group. Then, applying Section 3D1.3, the court determines the offense level applicable to that group. ⁸

Section 3D1.2 provides in pertinent part:

All counts involving substantially the same harm shall be grouped together into a single Group.... Counts involve substantially the same harm within the meaning of this rule:

* * * (d) When counts involve the same general type of offense and the guidelines for that type of offense determine the offense level primarily on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm. Offenses of this kind are found in Chapter Two ... [some sections of] Part D [including Section 2D1.1]....

Section 2D1.1 is the section that applies to Restrepo's offenses. Pursuant to Section 3D1.2(d), the district court grouped together counts I and II (i.e., Restrepo's two counts of conviction) with counts III and IV (i.e., two of Maldonado's three counts of conviction). After invoking Section 3D1.2(d), the next step is to aggregate quantities of drugs from the several counts pursuant to Section 3D1.3(b). See also Guidelines Sec. 1A.4(e), at 1.9 ("[The rules in Chapter Three, Part D] essentially provide: (1) When the conduct involves fungible items, e.g., separate drug transactions or thefts of money, the amounts are added and the guidelines apply to the total amount.").

Restrepo contends, however, that no provision of Chapter Three allows the grouping together of his counts of conviction with DeMaldonado's counts of conviction because Restrepo was never even charged with, much less convicted of, the latter counts. He cites the opening sentence of Part D, Chapter Three of the Guidelines: "This Part provides rules for determining a single offense level that encompasses all the counts of which the defendant is convicted." Guidelines at 3.9 (emphasis added). Moreover, Section 3D1.1 begins: "When a defendant has been convicted of more than one count, the court shall...." (Emphasis added.) Restrepo contends that Chapter Three of the Guidelines, when properly interpreted, applies only to the defendant's own counts of conviction. Accordingly, he argues that the district court erred in applying Chapter Three provisions to two of DeMaldonado's three counts of conviction to enhance Restrepo's sentence by increasing his base offense level. ⁹

The Government contends that Restrepo's interpretation of Chapter Three is precluded by the clear and unambiguous language of Section 1B1.3 (the Relevant Conduct section), which provides in pertinent part:

[A]djustments in Chapter Three, shall be determined on the basis of the following:

* * *

(2) solely with respect to offenses of a character for which Sec. 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction....

Guidelines at 1.17. The "Application Note" for this provision adds: "This subsection applies to offenses of types for which convictions on multiple counts would be grouped together pursuant to Sec. 3D1.2(d); multiple convictions are not required." Id. at 1.18 (emphasis added). This last phrase, so the government contends, clearly indicates that conduct of which the defendant was not convicted can be considered in applying the Chapter Three rules.

The government also points to the following language from the "Background" section following the "Application Notes":

[Section 3D1.2(d) provides] for grouping together (i.e., treating as a single count) all counts charging offenses of a type covered by this subsection. However, the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged.... [I]n 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.

Id. at 1.19. The government contends that this section controls the application of the rules contained in the Multiple Counts section of the Guidelines. Accordingly, the government argues that the district court properly aggregated the quantities of drugs involved in two of DeMaldonaldo's counts (III and IV) with the...