U.S. v. Taylor

• Decision Date: 21 January 1993
• Docket Number: No. 91-30418,91-30418
• Citation: 984 F.2d 298
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allen Rea TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 298

984 F.2d 298

UNITED STATES of America, Plaintiff-Appellee, v. Allen Rea TAYLOR, Defendant-Appellant.

No. 91-30418.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 2, 1992.

Decided Jan. 21, 1993.

Terrence Kellogg, Asst. Federal Public Defender, Seattle, WA, for defendant-appellant.

Robert H. Westinghouse, Asst. U.S. Atty., Seattle, WA, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, HUG, and POOLE, Circuit Judges.

POOLE, Circuit Judge:

Allen Rea Taylor appeals his sentence under the United States Sentencing Guidelines, following his conviction on a guilty plea, for one count of engaging in a monetary transaction in property derived from specified unlawful activity in violation of 18 U.S.C. §§ 1957 and 982. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we affirm in part and vacate and remand in part for resentencing.

I

In August 1990, Taylor, doing business as Westco Trading Company ("Westco"), agreed to sell 400 cellular telephones to Wangrow Company, Ltd. ("Wangrow"), a Taiwan business, for $360,000. As payment for the telephones, in September 1990 two Taiwan banks issued two letters of credit in favor of Westco in the amount of $219,600 and $140,400, payable upon shipment of the telephones.

On September 12, 1990, Taylor shipped six crates, purportedly containing the telephones, to Wangrow. When the crates arrived in Taiwan, Wangrow discovered that they contained bricks.

After confirmation of the shipments was sent, but before the crates arrived in Taiwan, the letters of credit were paid into a Security Pacific Bank checking account under the name of "Suds and Service." Taylor was the sole authorized signer on the account.

Taylor subsequently transferred $219,600 by wire from the bank account to a brokerage account at Piper, Jaffray & Hopwood, Inc. in Chicago. He used the rest of the money to purchase a home in Oregon which he later sold. Taylor spent all of the proceeds from the fraudulent telephone sale.

The government charged Taylor with one count of wire fraud in violation of 18 U.S.C. § 1343 (Count I), one count of money laundering in violation of 18 U.S.C. §§ 1956(a)(2)(A), 2, and 982 (Count II), and one count of engaging in a monetary transaction in property derived from specified unlawful activity in violation of 18 U.S.C. §§ 1957 and 982 (Count III). Taylor pleaded guilty to Count III of the indictment based on the wire transfer of $219,600 to the Piper, Jaffray account, and the government moved to dismiss Counts I and II. At sentencing, the district court found that Taylor had an offense level of 20 and a criminal history category of VI, resulting in an applicable Guidelines range of 70 to 87 months. On November 14, 1991, the court sentenced Taylor to 81 months imprisonment, three years supervised release, $360,000 restitution as a condition of supervised release, and a $50 assessment. This appeal followed.

II

Taylor first contends that the district court erred by treating his two prior state criminal sentences as separate, rather than related, sentences for purposes of calculating his criminal history category under U.S.S.G. § 4A1.2(a)(2). He argues that because he received concurrent sentences on the two prior state convictions, they should be considered "consolidated for sentencing" and thus related under U.S.S.G. § 4A1.2(a)(2) for purposes of calculating his criminal history category. This contention is meritless.

Whether two prior offenses are related under section 4A1.2 is a mixed question of law and fact that we review de novo. United States v. Chapnick, 963 F.2d 224, 226 (9th Cir.1992). We review for clear error any findings of fact that underlie the district court's sentencing decision. Id.

Under section 4A1.2(a)(2), "[p]rior sentences imposed in related cases are to be treated as one sentence" for purposes of calculating a defendant's criminal history. The commentary to section 4A1.2 provides that "[p]rior sentences are considered related if they ... (3) were consolidated for ... sentencing." U.S.S.G. § 4A1.2, comment. (n. 3).

This court must apply the commentary to Guidelines sections unless it is inconsistent with the text of the Guidelines. See, e.g., United States v. Bachiero, 969 F.2d 733, 734 (9th Cir.1992) (per curiam). There is no inconsistency between note 3 and the text of Section 4A1.2(a)(2). Id.

Here, Taylor pleaded guilty in February 1983 in Texas state court to theft by deception and was sentenced to three years imprisonment. The crime took place in August 1981, and involved the submission of a credit application with false information. In July 1983, Taylor pleaded guilty in Arizona state court to attempted theft and was sentenced to one and one-half years to run concurrently with the Texas sentence. The Arizona crime took place in September 1980, and involved the submission of a false insurance claim.

This court has not "definitively established a rule for determining whether cases have been 'consolidated' for purposes of § 4A1.2." Chapnick, 963 F.2d at 228. Under Ninth Circuit case law, however, Taylor's crimes were not "consolidated."

In United States v. Davis, this court held that imposition of concurrent sentences did not establish consolidation when the defendant was sentenced in separate courts under separate docket numbers for separate offenses pursuant to a single plea agreement. 922 F.2d 1385, 1390-91 (9th Cir.1991). The Davis court noted that the result would not change even if the defendant had been sentenced on the same day. Id. at 1390. The court suggested that concurrent sentences might indicate consolidation if the sentencing court considered that the offenses were somehow related. See id. at 1391; see also United States v. Smith, 905 F.2d 1296, 1303 (9th Cir.1990) (receipt of concurrent sentences for violation of probation on separate burglary and car theft convictions does not indicate consolidation); cf. Chapnick, 963 F.2d at 228-29 (order transferring a burglary case for sentencing with another burglary case plus imposition of identical concurrent sentences constituted "consolidation for sentencing").

Taylor's crimes were completely unrelated. Thus, unlike Chapnick, there is nothing to suggest that the Arizona sentencing judge considered the offenses related. See 963 F.2d at 228-29. Under Davis and Smith, the two offenses were not "consolidated for sentencing" merely because the Arizona court imposed a sentence concurrent to the Texas sentence. See Davis, 922 F.2d at 1390-91; Smith, 905 F.2d at 1303.

III

Taylor next contends that the district court erred by determining that wire fraud was a permissible basis for increasing his base offense level under U.S.S.G. § 2S1.2(b)(1)(B). We disagree.

Whether the district court properly applied section 2S1.2(b)(1)(B) is a mixed question of law and fact that we review de novo. See United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir.1989). We review for clear error any factual findings underlying the district court's sentencing decision. Chapnick, 963 F.2d at 226.

Under section 2S1.2(b)(1)(B), a defendant's base offense level is increased by two levels "[i]f the defendant knew that the funds were the proceeds of: ... (B) any other specified unlawful activity (see 18 U.S.C. § 1956(c)(7) [setting forth offenses that constitute "specified unlawful activity"]." Here, the district court increased Taylor's base offense level by two levels based on the "specified unlawful activity" of wire fraud.

Taylor argues that wire fraud was not a "specified unlawful activity" in the version of 18 U.S.C. § 1956(c)(7) that was in effect at the time he committed the offense. In support of his argument, he cites 18 U.S.C. § 1956(c)(7)(D), which was amended after the date of his offense to add the following to the list of specified unlawful activities: "section 1341 (relating to mail fraud) and section 1343 (relating to wire fraud) affecting a financial institution." Id.; see Historical and Statutory Notes foll. 18 U.S.C. § 1956 (West Supp.1992) (language added by the Crime Control Act of 1990). He contends that because section 1956(c)(7)(D) was amended to include these offenses, the offenses necessarily were not included in the pre-amendment version of section 1956(c)(7)(D).

Under 18 U.S.C. § 1956(c)(7)(A), however, "specified unlawful activity" includes "any act or activity constituting an offense listed in [18 U.S.C.] section 1961(1)." Section 1961(1) defines those offenses that may rise to the level of a violation under section 1962 of the Racketeer Influenced and Corrupt Organizations Act ("RICO") and includes the offenses of mail fraud and wire fraud. Because section 1961(1)'s offenses, as incorporated into section 1956(c)(7), include the offense of wire fraud, the district court properly increased Taylor's base offense level based on wire fraud.

Taylor nevertheless contends that section 1961(1) encompasses only offenses criminally punishable as RICO violations. He argues that if Congress intended to include any offense listed in section 1961(1), rather than those offenses only to the extent that they are punishable as RICO violations, then it would not have amended section 1956(c)(7)(D) to include wire fraud as a specified unlawful activity.

Section 1956(c)(7)(A), however, does not explicitly require a full RICO violation, as defined in 18 U.S.C. § 1962. If Congress had wanted to limit the offenses to those punishable as a RICO violation, it could have cited to section 1962 rather than only to section 1961(1), which merely lists the offenses that could rise to the level of a RICO violation under section 1962. See United States v. 16899 S.W. Greenbrier, 774 F.Supp. 1267, 1273-74 (D.Or.1991) (applying this analysis and holding that section 1956(a)(7)(A) encompasses mail and wire fraud).

The plain language of the statute compels the conclusion that section...