U.S. v. Smith

Decision Date22 April 1993
Docket NumberNo. 91-50029,91-50029
Citation991 F.2d 1468
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Andre SMITH, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Kevin R. Brehm, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.

Mark C. Holscher, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

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

Before: BEEZER, HALL, and WIGGINS, Circuit Judges.

ORDER

The opinion filed December 9, 1992, 982 F.2d 354, is withdrawn.

OPINION

WIGGINS, Circuit Judge:

Andre Smith appeals the sentence he received after pleading guilty to two counts of student loan fraud (20 U.S.C. § 1097 (1988)) and one count of making false statements to a government agency (18 U.S.C. § 1001). Smith contends that the district court erred in its application of the United States Sentencing Guidelines ("Sentencing Guidelines"). This court has jurisdiction of Smith's timely appeal pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for resentencing.

I. Facts

The two issues in this appeal involve Smith's criminal history. On November 28, 1983, Smith was convicted of one count of battery and was sentenced to four months in jail. At the same time, Smith was convicted of a separate count of false imprisonment and was sentenced to an additional four months in jail. Both the battery and false imprisonment were sexually motivated attacks on women, with each attack unrelated factually to the other and involving separate victims, dates, and locations. The two four month sentences were served consecutively. However, Smith was sentenced for both crimes in the same proceeding by the same judge under the same docket number.

On August 11, 1988, Smith was arrested again, this time on grand theft charges that arose out of a fraudulent scheme to obtain student loan proceeds. On June 1, 1989, Smith was convicted on these charges, sentenced, and placed on probation. Undeterred, Smith initiated another fraudulent scheme to obtain student loan proceeds while on probation. This second fraudulent scheme began in November of 1988 and ended when Smith was arrested in December of 1989. Smith admitted all counts of this second fraudulent scheme in a sworn affidavit and took full responsibility for his actions.

Because Smith embarked on this second fraudulent scheme after he was sentenced and placed on probation for the first fraudulent scheme and within two years of his release from imprisonment, the district court added three points to Smith's criminal history category under section 4A1.1(d)-(e) of the Sentencing Guidelines. The district court also added four points to Smith's criminal history by treating the two 1983 assaults as separate sentences for purposes of section 4A1.1(b) of the Sentencing Guidelines. Smith appeals the district court's interpretation and application of the Sentencing Guidelines. Because one of the issues presented in this case--interpretation of "relevant conduct" under the Sentencing Guidelines--was one of the issues briefed for en banc consideration in United States v. Fine, 946 F.2d 650 (9th Cir.1991), reh'g en banc granted, 963 F.2d 1258 (9th Cir.1992), we deferred submission of this appeal pending the resolution of Fine. Fine was issued on September 14, 1992. United States v. Fine, 975 F.2d 596 (9th Cir.1992) (en banc).

II. Standard of Review

We review de novo the district court's interpretation and application of the Sentencing Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir.1990); United States v. Williams, 891 F.2d 212, 214 (9th Cir.1989), cert. denied, 494 U.S. 1037, 110 S.Ct. 1496, 108 L.Ed.2d 631 (1990).

III. Mootness

Before considering the merits of this appeal, we must address the question of whether this case is moot. Although neither party has raised this issue, we are obligated to determine whether we have jurisdiction to consider issues presented on appeal. See United States v. Morales, 898 F.2d 99, 101 (9th Cir.1990).

While this appeal was pending, Smith completed his term of imprisonment and was released. However, Smith's sentence also included a three-year term of supervised release. If we agree with Smith's argument that he should have been sentenced to a shorter term of imprisonment, Smith will be entitled to an earlier end to his term of supervised release. Because our decision could affect Smith's term of supervised release, this case is not moot. United States v. Lira-Barraza, 941 F.2d 745, 746 n. 1 (9th Cir.1991) (en banc).

IV. Relevant Conduct Under the Sentencing Guidelines

Smith's first contention is that the district court erred in its calculation of his criminal history category by adding three points because Smith committed his offense while on probation for another crime and within two years of release from imprisonment. U.S.S.G. § 4A1.1(d)-(e). Although the second fraudulent scheme lasted through October of 1989, Smith correctly indicates that the counts to which he pleaded guilty (two, three, and four) involved acts that took place prior to June 1, 1989, the date on which he was sentenced and released on the first fraudulent scheme. Based on these dates, Smith argues that section 4A1.1(d)-(e) is inapplicable to the calculation of his criminal history.

Smith's indictment included eight counts, all related to his fraudulent scheme to obtain student loan proceeds. The eight counts specify certain criminal acts that took place between November 1988 and October 1989. While it is true that the crimes to which Smith actually pleaded guilty involved acts that took place prior to June 1, 1989, several of the acts included in the indictment's other counts took place after that date.

The application notes to section 4A1.1(d)-(e) contain identical introductory language that defines "instant offense" by reference to the term "relevant conduct." Read together, the notes state that "[three] points are added if the defendant committed any part of the instant offense (i.e., relevant conduct) while under any criminal justice sentence ... [and] less than two years following release." U.S.S.G. § 4A1.1 comment (n. 4-5). Smith asserts that "instant offense" is necessarily limited to the offense of conviction--the crime to which he pleaded guilty. The government contends that the district court is allowed to consider all acts from the indictment constituting "relevant conduct," as defined by the Sentencing Guidelines. Based on a straightforward interpretation of the Sentencing Guidelines, we conclude that the government's contention is correct and that the district court properly applied the Sentencing Guidelines.

The application notes clearly allow the district court to consider "relevant conduct" in considering the criminal history score under section 4A1.1(d)-(e). Although Smith argues that "relevant conduct" is limited to conduct that is part of the offense of conviction, the plain language of the Sentencing Guidelines demonstrates that the term "relevant conduct" extends to acts that are part of the same general criminal scheme.

By defining conduct relevant to the instant offense pursuant to section 1B1.3, application note 8 to section 4A1.2 demonstrates that conduct relevant to the instant offense includes conduct related to, but not part of, the offense of conviction. See U.S.S.G. § 4A1.2 comment (n. 8). Section 1B1.3 defines relevant conduct, in part, as "all such acts and omissions 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). The application note explicitly provides that "multiple counts of conviction are not required" for acts to be counted in "such acts or omissions." U.S.S.G. § 1B1.3 comment (n. 2). All acts included in Smith's indictment, including those to which Smith did not plead guilty, were part of Smith's common fraudulent scheme. Under the Sentencing Guidelines, all such acts are thus part of Smith's relevant conduct and the district court properly considered them in determining the applicable time period for purposes of section 4A1.1(d)-(e).

This court explicitly adopted this interpretation of the Sentencing Guidelines in United States v. Fine, 975 F.2d 596 (9th Cir.1992) (en banc). Specifically, in Fine, as here, the court considered the relevant conduct provisions together with the fraud and grouping provisions, and concluded that:

The relevant conduct provisions ..., taken together with the fraud and grouping provisions, mean that conduct which was part of the scheme is counted, even though the defendant was not convicted of crimes based upon the related conduct.... The words "as the offense of conviction" in the relevant conduct guideline necessarily imply that acts which are not included in the counts of conviction may be relevant conduct if the acts are part of a common plan or scheme or the same course of conduct.... The issue is nailed down firmly with the application note explicitly providing that "multiple convictions are not required" on the multiple counts.

Id. at 600. Thus, the main thrust of Smith's argument is foreclosed by this court's decision in Fine.

Nevertheless, Smith contends that we should ignore the clear guidance of the Sentencing Guidelines and argues that section 1B1.3(b) prohibits this court from using section 1B1.3(a) to define conduct relevant to the instant offense. However, section 1B1.3(b) merely states that, for chapter four, factors "that establish the guideline range shall be determined on the basis of the conduct and information specified in the [chapter four] guidelines." U.S.S.G. § 1B1.3(b). In defining "instant offense" for purposes of determining the applicable time period, chapter four specifically references section 1B1.3...

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