United States v. Dale F. Svacina

dеvelop support a factual of Ms ment on record that issue the reasons set forth opinion claim of ineffective assistance counsel. Schumer. Our is in all reinstated respects. other The end result is is respects. district court AFFIRMED in all parties shall bear their own costs. HYATT, aka, Hyatt, Michael A. Brian

Plaintiff-Appellant-Cross-

Appellee, America, UNITED STATES America, United States of ex rel. Michael Plaintiff-Appellee, (Brian) Hyatt King, A. and John W. Plaintiff, SVACINA, Defendant-Appellant. Dale F. No. 96-3317. CORPORATION,

NORTHROP Defendant-Appellee-Cross- Appeals, United States Court Appellant. Tenth Circuit. 94-55578,

Nos. 94-55638. 2, 1998. March Appeals, Court

Ninth Circuit.

April

Before: T.G. NELSON and

KLEINFELD, Judges, Circuit

WILKEN,* Judge. District Pursuant the Order of the United States — 23, 1997,

Supreme Court issued June

U.S.-, 117 S.Ct. 138 L.Ed.2d opinion

we have reconsidered the filed 11, 1996, April

this court on

light Hughes v.Co. United States Aircraft — Schumer, -, ex rel.

1871, 138 Based on this

reconsideration, portion we withdraw the opinion

our earlier that dealt with the retro-

spective application qui of the revised tarn

provisions of the 1986 amendments to the Act, seq.,

False Claims 31 U.S.C. 3729 et 1428-30,

published at 80 and affirm grant summary judg-

the district court’s * Wilken, sitting by designation. Honorable Claudia United States District California, Judge Northern District of (Thomas Ayres

David Y. M.Dawson with briefs), Leavenworth, Kansas, ‍‌​‌‌​‌​‌​‌​‌​‌‌​​​‌​‌​​‌‌​‌‌‌‌​‌‌‌‌​​‌‌‌‌​‌​‌‌‌​‍him on the Defendant-Appellant. (Jackie Williams, K.

Steven Lester N. Lind, Attorney, United States and David M. Attorney, Assistant United on the .States brief), Attorney, Assistant Dis- Kansas, Wichita, Kansas, trict of for Plain- tiff-Appellee. TACHA, McKAY,

Before and BRISCOE Judges. Circuit McKAY, Judge. pled guilty repre- tion. He to this conduct Circuit sented Count II. Defendant, January Mr. Dale On (I) Svaeina, F. was indicted on two counts: objects to the district possession with the intent to distribute more grams of court’s inclusion of 138.8 metham containing grams than 100 of a substance phetamine August from the 1995 transac relating methamphetamine, transaction purposes tion as relevant сonduct for of cal (cid:127) (II) 22, 1995; attempt culating his base offense level under the possess intent to distribute more with the Sentencing To Guidelines. de containing grams than 100 of a substance appropriate offense termine- base level methamphetamine, relating to a transaction guidelines, types “quantities under the 3,1995. to a written on November Pursuant drugs specified in the count Of conviction plea agreement, I was dismissed and Count they part are to ... if be included were Defendant'pled guilty to II. Defendant Count part the same course of or of a conduct 1996, 16, September on to a was sentenced plan or common scheme as the count of 163 months incаrceration and four term of Sentencing conviction.” United States years supervised Defendant chal- release. lB1.3(a)(2), § Guidelines Manual commen only appeal. ¶ on lenges his sentence tary, backg’d 3. The court determined that methamphetamine

Defendant’s August “part in the transaction was T. same course of conduct or common scheme that in late Defendant admits 1995 plan” attempt purchase, or as to Defendant’s transported1 to he from California Kansas thereby methamphetamine possess, packages containing “‘contraband’” for Ap the transaction on November 1995.2 ” ‘$3,000.’ paid Appel- which he was to “be pellant’s App. 20. at We review clear trip App. During lant’s at 26. his return to findings supporting error factual a district train, questioned Kansas Defendant court’s base offense level calculations under (DEA) by Drug Enforcement Administration lB1.3(a)(2). § U.S.S.G. v. Al- agents Albuquerque, New Mexico. Roederer, (10th Cir.1993). 11 F.3d 977 though the officers discontinued their inter- However, charged the relevance of conduct view to allow them when Defendant refused I question in Count is a of law which we carry-on luggage to his or examine .to use Hogan, de review novo. United States v. 116 dog luggage, narcotics detection to sniff his Cir.1997); F.3d. they notified Kansas DEA about his officers Slater, States v. 971 F.2d 638 Appellant’s Opening Br. at 6. destination. Cir.1992). agents DEA confronted Defendant when hе departed from the train in Kansas. After a agreed This court has with Sec dbg luggage, narcotics sniffed Defendant’s ond Circuit between the terms distinction luggage officers searched the and found 138.8 “same course of conduct” and “common Roederer, grams plan.” of actual Id. at scheme or at See F.3d 19. plan” may This conduct formed the basis Count 979. While a “common scheme or I against require of the indictment De- some Defendant. connection between the acts early participants, purpose, fendant then was arrested November common or overall scheme, attempting purchase grams 1995 for analysis to 80.64 of “same course of con methamphetamine of actual from pattern undercover duct” focuses on whether there is “a agents Investiga- (quoting the Kansas Bureau of of criminal conduct.” See id. Unit Although attempts distinguish aggregated grams Defendant 2. The court 138.8 of metham- phetamine grams "transporting” "possessing” drugs, from Count I with 80.64 methamphetamine from the count of conviction. transportation drugs necessarily implies their responsi- Under this Defendant possession. "transport” The verb calculation. defined as is grams, resulting for 219.44 in a base offense ble carrying moving something or someone from lB1.3(a)(2) §§ level of 32. U.S.S.G. & See one location to another. See Webster’sThird New 2Dl.l(c)(4). The court reduced the offеnse base Dictionary International acceptance respon- level to 29 for Defendant's sibility. § See U.S.S.G. 3E 1.1. ed, (2d Perdomo, conduct). Finally,-the 927 F.2d course of illus- record Cir.1991)). several Courts examine factors trates that the two offenses temporally were or more whether transac determine two they related because occurred less than three may part of the same tions considered apart. McKneely, months at F.3d id.; of conduct. United States v. course therefore'reasonably 1078-79. The court in- Hahn, Cir.1992), ferred that episode “each was an [offense] an ongoing drug Ap- distribution business.” Perdomo, (1993); pellant’s 20; Roederer, App. see 11 F.3d at 115; Santiago, United States v. 978-79. Defendant’s contention that the two (2d Cir.1990). may factors include These instances are of conduct unrelated is ' temporal similarity, “ regularity, proximity, persuasive. acts, nature of the ‘the defendant’s his [and] ' also argues dis Roederer, 11 (quoting role.’” erroneously trict court presen relied on the 872); Santiago, 906 F.2d at also see U.S.S.G. report findings to make its 9(B). concerning tence 1B1.3, commentary, n. Appellant relevant conduct.- Because failed Our review óf the record indicátes provide presentence us report with the the district on court relied several facts part appeal, record our review support findings and conclusion that R.App. this issue is limitеd. Fed. P. 10th part two offenses were of the same 10.3; Shalala, Cir. R. see O’Dell of conduct. was charged course Defendant Cir.1994) (noting n. that I in with with Count intent to although inadequate, excerpts record was grams more than of distribute a sub provided were sufficient for court to examine containing stance He merits). We have “held that a district court guilty pled attempting ‍‌​‌‌​‌​‌​‌​‌​‌‌​​​‌​‌​​‌‌​‌‌‌‌​‌‌‌‌​​‌‌‌‌​‌​‌‌‌​‍possess to to with may obligation by simply satisfy grams to distribute than intent more adopting presentence report the as its find or a in the same similar substance Count II. ing.” Farnsworth, comparison A Count I dismissed with — (10th Cir.), II similarity illustrates Count the of the of -, 136 L.Ed.2d 524 charged, conduct, Defendant’s fenses and the record, that, It is not the clear from in this Roederer, substance involved. See 11 F.3d at ease, simply adopted the district court the similarity 980. Another between the two presentence report any without further anal- transported offenses is that Defendant meth ysis. Although the district court the found in amphetamine August to the same area in accurate, presentenee -report only adopted it Kansas involved in the November transact presentence the true report relevant and v. McKneely, ion.3 See United States presentence an the analysis, report’s after Cir.1995). Additional findings objections and Defendant’s thereto. ly, large quantity methamphetamine Appellant’s at App. 19-23. -The record suppоrts in involved both instances a reason reflects facts upon by that certain relied able inference that Defendant intended to court in analysis its relevant conduct were drug comparison distribute the to others. A only by presentence substantiated not of the dismissed count with the count of report by plea agree- but also Defendant’s regularity also shows some conviction that ment and Defendant’s own statement submit- requirement exists—the minimum conduct conduct, 9-10, Roederer, ted id. at court. See 26. two instances reasonably interpret court (noting that could two more transac Defendant’s may part pos- voluntarily tions considered a of the same statement that he mean However, 3. is some in the There confusion record about Defendant's recitation of facts methamphetamine whether the in person Count I was luggage and states that his were searched seized in New Mexico or Kansas. The in district drugs after in seized he exited the train "[although court states that in Count I Appellant’s Opening Kansas. Br. at 18-19. Mexico, seized ... was suggest in New the circumstances drugs that the I Defendant's admission Count transporting that the was defendant it to were seized further indicates in Kansas that Wichitaf, area, Kansas] which is the same same area involved in both was transactions. Appellant’s App. involved area in Count II.” Custodio, alleged tionally, bеcause the rel- knowingly- issue and drugs sessed wncharged, the court was Kan- transported to his destination evant conduct them objects Moreover, might have while Defendant that some defenses sas. concerned findings in the methamphetamine purity had the con- to the defendant been available Custodio, not indi- report, the record does presentence charged. Id. Unlike been duct purity on the the court relied cate that the conduct at issue this case was conduct the two trans- that to determine substances charged in I of the indictment Count ' related conduct.4 were- plea agreement. See Roe- in the actions dismissed report alleg- objеcted presentence also derer, (stating drug quan- 11 F.3d at 980 victim, accom- no common ing that there was may counts be considered tities in dismissed there was a purpose, and plices, or conduct). oppor- Defendant had the relevant objection re- operandi. This modus different plea during his tunity present defenses plan” analysis scheme or lates to a “common in a trial negotiations pursue or to defenses finding court’s conduct. The for relevant I. merits of Count on the however, conduct, predicated relevant raised Briefly turning to the defenses analy- course of conduct” solely on-a “same Defendant, they no have sis; findings simi- we conclude the factual demonstrate temporal proximity of contends that he could larity, regularity, and merit. Defendant alleged illegal are successfully litigated See id. at 19-21. We an the two offenses. have argument that not convinced Defendant’s This is neither and seizure. defense search presentence rely on the court could not properly before this court. relevant nor that the court report, and we cannot conclude suppressed the Defendant' could have That adopting presentence clearly foregone erred evidence is not a allegedly tainted report. importantly, Defendant conclusion. More suppress the evi made a motion to never court’s find- also contends the Defendant' transaction.6 relating to the dence is unwarranted be- ing of relevant conduct Instead, op pursue chose to the Defendant presented defenses cause he could have plea bargaining. Defendant was free tion of pursuant to our deci- August the transaction plea agreement at the from the to withdraw Custodio, 39 F.3d sion hearing change plea of when he became (10th Cir.1994). does not con- 1121 Custodio the author that the court had ultimate aware Custodio, In disposition of this case. trol the conduct, despite the ity to determine relevant finding court’s agreed we with the district Appel plea agreement. See language of the prove government failed to that because the The App. lant’s at 15-16. record indicates that the by preponderance of the evidence plea agree into the that Defendant entered part of the alleged relevant conduct was knowledge full of the court’s au ment with of conduct or the same scheme same course final thority to make the determination conviction, plan of it did not or as the conduct conduct; He answered “Yes” to the relevant sentencing constitute relevant conduct asking he case, questions court’s several whether purposes. 1126. In this howev- Id. аt ultimately that the court would er, understood preliminary made a the district court Id. question decide the relevant conduct. supported a that the evidence determination at 14^16. finding of “same course of conduct.” Addi- erroneously accepted pre- conduct or common scheme or same course of 4. Even if the court the II,” purity finding, App. report’s plan Appellant’s we conclude the did sentence Count it level calculation was not court's base offense conduct on a base its conclusion of relevant clearly offense level erroneous because the base analysis. plan” or "common scheme the court had mea- would remain the same if drugs. gross weight the See sured drugs decide whether the in the 6.We need not (c)(4). U.S.S.G. 2D The record does not re- 1.1 illegally August were seized in viola- transaction by gross any objection to the veal Defendant the Fourth Amendment whether tion of weight drugs. Appellant’s App. 22- See exclusionary applies sentencing because rule 23; Appellant’s Opening atBr. 8-10. suppress the evi- Defendant made no motion dence seized. Although that Defendant’s the court states "possession part ... I was a in Count

1185 Reply part Defendant asserts his of the same course conduct as Count government plea II for sentencing purposes. government Brief that the breаched The agreement argued penalized when it that the court cannot correctly stating properly analyzed legal relevant by conduct issue: issue to be addressed this court. Generally, Moreover, above, for the issues raised first time as noted Defendant-did not reply object during change plea brief will not be considered. See Sade his hearing n INS, ghi v. questioned F.3d Cir. whe the court him about the 1994). However, government because the relevant conduct issue. The record indicates alleges it plea agreed its brief that stands it that is the court who agreement, we will construe Defendant’s ar makes the ultimate determination on rele conduct, gument response government’s as a vant admitted he under position implications and address his contention. id. stood the of the court’s sentenc government’s ing authority. 14-15; at 1143. Whether conduct Appellant’s App. Johnson, plea agreement question violated the is a of United States v. (10th Cir.1992).

law which novo. Allen v. we review de Had sufficiently Defendant was den, Cir.), 57 F.3 d consequences plea. cert. advised of his We denied, 133 conclude that plea breach of Defendant’s (1995). considering agreement argument In whether is baseless. violated, plea agreement we construe We hold that the court’s factual finding agreement the terms plea “according methamphet Defendant’s reasonably to what understood [Defendant] in August part amine 1995 was of the same ” plea. he when entered his United States v. course of conduct as the offense of conviction Jimenez, Cir.), is not clearly McKneely, erroneous. See S.Ct. Roederer, at 1078-79; 11 F.3d at 978- L.Ed.2d 129 79. The court err determining did not August metharnphetamine transac Based on the limited facts in the tion was therefore relevant conduct under record, government we conclude the did not sentencing guidelines. It properly ag unilaterally plea agreement breach the or act gregated drug quantity from Count I impunity. government with did not . with the quantity Count II to deter any attempt persuade make the court that mine Defendant’s bаse offense level. 1995 transaction was relevant Rather, government briefly conduct. an II. .questions concerning swered the court’s who makes the ultimate on argues determination rele the first time appeal vant conduct. at 363-64 (informing See id. that the court district made an ex pertinent post court of -application information cannot be con facto of the sentencing plea agreement); guidélines. sidered a breach applied see also The court district the Stemm, 636, guidelines States v. 847 F.2d 639 amended 1995 November (10th (“Disclosure Cir.1988) .sentencing, information as were effect on date of the 16, 1996, September to the nature of the offense and eaсh defen and on the date of the conviction, proper 3, dant’s role is within and the Govern count of November 1995.7 De duty despite provide, promise ment’s a fendant ap contends ‍‌​‌‌​‌​‌​‌​‌​‌‌​​​‌​‌​​‌‌​‌‌‌‌​‌‌‌‌​​‌‌‌‌​‌​‌‌‌​‍the court should have plied guidelines 22, that the Government would make no recom the in effect on sentence.”). 1995, govern mendation as to' The the date of the relevant conduct of However, actually ment its brief that fense. stated the Defendant did not raise objection report conduct at issue not relevant this presentence prior conduct. to the however, government, properly sentencing hearing. charac or at his Failure appeal object generally by terized the issue on precludes be whether the review this Saucedo, clearly finding district court I court. erred Count United States v. 950 F.2d (Amend. 518). guidelines 7. The effective date amended 344 1, U.S.S.G.App. was November See C 1995. at 1186 methamphetamine at Cir.1991), specific type of

1508, 1511 on other overruled 32(c)(1); States, sentencing. Fed.R.Crim.P. v. United See grounds Stinson Lande, 329, 1913, 36, v. 40 F.3d 330-31 123 L.Ed.2d United States 113 S.Ct. U.S. Cir.1994) (1993). alleges government a (holding Defendant now that the Because error, plain preponderance will review for we established a constitutional (holding post ex D-methamphetamine), at 1516-17 error. See id. 1988, sentencing guidelines 1122, application of the 131 L.Ed.2d 875

facto 115 S.Ct. U.S. error). Deninno, exists plain (1995); Plain error amоunted to 29 F.3d v. United States Cir.1994) affecting substan plain 572, a error (stating when clear or fair “seriously rights affeet[ed] tial has proving type of government has burden of ness, reputation of the integrity, public sentencing), cert. de controlled at substance proceeding.” v. United judicial 1117, Johnson nied, 1158, 115 S.Ct. 513 U.S. — 1544, States, U.S.-,-, 117 S.Ct. guide The amended L.Ed.2d 1081 (1997) (internal 1549, quota- L.Ed.2d 718 lines, 518, effectively Amendment reduced omitted); Fed. marks citations See tion sentencing by at government’s burden 52(b). R.Crim.P. L- deleting between D- and the distinction methamphetamine that “all forms of so Generally, sentencing court like methamphetamine be treated” [would] sentencing guidelines in ef apply the must U.S.S.G.App. at D-methamphetamine. C sentencing unless such feсt on the date of Further, change guidelines the Ex Post Facto application would violate punishment at “quantum increased the Constitution. Clause of the United States [offense],” Miller, 482 U.S. at tached to the I, 9, 3; § cl. Const. art. U.S.S.G. See U.S. 433, (quoting at 2453 Dobbert v. 107 S.Ct. Gerber, 1B1.11; § Florida, 282, 294, 97 S.Ct. U.S. (10th Cir.1994); Saucedo, (1977)), by sentencing 53 L.Ed.2d 344 Ex Post Facto Clause is at 1513. The violat type D. methamphetamine all forms of applies guideline to an event ed if the court Despite the U.S.S.G.App. C at 343-44. enactment, ap occurring and the before application” language “simplifying guideline disadvantages the plication guideline of that amendment, id. at this explaining the crimi “by altering the definition of defendant type change prоcedural is not a mere increasing punishment nal conduct or Miller, at clarification. See U.S. Mathis, Lynce crime.” U.S. 2453. We conclude S.Ct. 891, 896, -, 137 L.Ed.2d 63 117 S.Ct. change that the at issue is substantive Florida, (1997); see Miller v. implicates the Ex Post Facto therefore 2446, 2451, 96 L.Ed.2d 351 Gerber, 24 97. Howev Clause. (1987); Gerber, 24 F.3d at 96. er, application the court’s retroactive case, application In this guidelines violates November 1995 amended guidelines prior relevant the amended only Ex Facto if it disadvan Post Clause retrospective. Prior to Novem conduct was taged (citing id. at 96 Mil Defendant. See 1, 1995, Drug Equivalency Tables ber 2451). ler, 107 S.Ct. at commentary to U.S.S.G. 2D1.1 distin argues he was L-methamphet D- Defendant disadvan guished between and taged government the was nоt re U.S.S.G.App. at 343-44. Un because amine. See C sentencing type quired prove the of guidelines, old a sentence for der the methamphetamine in the relevant significantly less involved' Lmethamphetamine was disadvantage in D-methamphetamine. question If The of the conduct.8 than one for entirely a factual applied this case rests on determi guidelines had been to the rele old 22, 1995, type of occurring on nation of the vant conduct generally review factual issues to be de required have been to We government the would by sentencing the court for clear by termined prove preponderance a evidence transaction, Appellant’s Opening only gov- August 1995 see claims that the Because Defendant methamphet- proved type Br. at we do not address the the of metham- ernment should have the count of conviction. phetamine grams in the amine involved in for the 138.8 involved Saucedo, De argues F.2d at 1518. Had To the extent error. that methamphet objected type the of fendant his trial properly preserve counsel failed to amine, would have re government the been L-methamphetamine, the issue Dversus D- quired prove the distinction between and raises therefore an ineffective assistance by L-methamphetamine required as the and claim, of counsel we dismiss that claim with guidelinеs. old Thus Defendant would prejudice. out Generally, claims of ineffec disadvantaged government, upon the no if tive brought assistance counsel should be burden, prove either could not tice of in proceeding pursuant a collateral to 28 D, type methamphetamine proved was or it § 2255. U.S.C. See United States v. Gallo However, type to be L. the record indicates (10th Cir.1995) (en way, 56 F.3d object thereby not that Defendant did banc); Glover, also see United give issue to the or to notice of this court Cir.1996) (remand 1350-51 above, fail government.9 As discussed ing 2255 proceeding section to determine object generally precludes ure to ex review type methamphetaminе with instruction cept plain error. This court has held government if cannot establish sub repeatedly disputes brought that factual D-methamphetamine stance required was to the the court rise to attention of do not by guidelines, old -defense counsel’s failure to plain the level of error. See. United States in challenge regard defendant’s sentence this Yarnell, Cir. 1137-38 would constitute assistance ineffective 1997) Saucedo, 1518); (citing 950 F.2d at counsel). Deninno 29 F.3d see also Scrivner, States v. Defendant’s sentence is AFFIRMED. Cir.1997) (agreeing with Tenth Circuit’s Deninno).

holding precisely in This is BRISCOE, Circuit Judge, concurring: at sen Mnd of issue that should be raised before, tencing, if not so that “a suffi record ‍‌​‌‌​‌​‌​‌​‌​‌‌​​​‌​‌​​‌‌​‌‌‌‌​‌‌‌‌​​‌‌‌‌​‌​‌‌‌​‍majority correсtly concludes Svacina’s adequate thereby permit cient to is review unconvicted crime was relevant conduct to Saucedo, developed.” As 950 F.2d at 1518. major- crime conviction. Although issue, objection only a an factual is the ity also reaches the correct result conclud- by party give means which a can notice that ing resentencing Svaeina is not entitled to evidentiary hearing required an is post ex argument, based his facto I would .on government has burden it not met. has by reach result much different .route. properly Because Defendant failed to raise charged pos- Svaeina with crimes: two L-methamphetamine the Dversus issue methamphеtamine August session of court, the district we have no factual record possession methamphetamine on No- any which to id. conduct review. See pleaded guilty vember 1995. He to the We conclude that Defendant waived the later offense and the L-methamphetamine earlier offense dis- ap Dversus issue However, Therefore, determining drug missed. peal. although retro the court’s Svaeina, spective quantity application of the attributable court amended guidelines Ex implicated quantity Post Facto included the involved Clause, application earlier did not amount to crime because the earlier crime was plain error. guidelines. relevant conduct under the argues objection pre- purity goes argument objection 9. Defendant that his that the to the report's purity finding preserves “type” methamphetamine. sentence From our review record, L-methamphetamine purity Dversus review. issue for it seems that Defendant's ,10, Appellant's objection objec Br. at 25-27. We was treated as an Opening court weight decline to Defendant’s claim he amount consider because tion to the phetamine, or net of metham presentence report part “type" did not include the as of not its or structural formula. 10.3; 2Dl.l(c), (B); (A) appeal. Appel § the record on Cir. See &

1189 dock, 956 1534, (10th post-amendment of a crime Cir.1992), relevant conduct conviction, it is not inconsistent with the on grounds, 482, overruled other 519 U.S. contrary 921, guideline explains, (1997), it and it is not to 117 S.Ct. 137 L.Ed.2d 107 federal law. court held consideration pre- of losses from ' guidelines in determining fraud the offense pur- post The ex facto clause has two post-guidelines level for did fraud not violate legislatures poses^—to from arbi- restrain post Although ex facto clause. grouping trary legislative action to assure acts and “arguably losses more [made] burden permit give warning fair of their 'effect and punishment some post- Haddock’s for his rely meaning individuals on their until to crimes,” guidelines punishment post- for Miller, explicitly at 429- changed. 482 U.S. guidеlines crimes imposed was not retroac 2450-51; Graham, 30, 107 S.Ct. at Weaver v. tively. The court concluded “enhancement of 28-30, 960, 963-64, 101 450 U.S. S.Ct. 67 a for a later sentence offense based losses (1981); Gerber, 24 L.Ed.2d 17 96. with crimes that associated were committed “Critical to under the Ex Facto relief Post prior to the effective date of Guidelines right Clause is not individual’s to an less does not the Ex violate Post Facto Clause.” punishment, but the lack of fair notice and also, Id. at see United States v. Roe governmental legislature restraint when the derer, (10th Cir.1993). 975 punishment beyond pre- increases what was Cabrera-Sosa, crime Similarly, scribed when the was in consummated.” the defendant Weaver, post 101 964. rаised an challenge aggra- S.Ct. ex facto to an felony vated enhancement to his sentence for Here, post- his when Svacina committed illegal reentry deportation felony. after for a conviction, crime of had fair amendment he felony, He committed the underlying posses- warning pre-amendment his conduct could cocaine, sion of aggravated 1986 but. determining his used sentence felony provision was not until enacted 1988. post-amendment possession crime and that He reentered the United States L-methamphetamine regarded was now post The court held the ex clause facto just as serious as of D-metham not applying aggravаted violated the 1988 phetamine. It was not the amendment felony to a provision crime committed 1986 him, guidelines disadvantagéd but enhancing his sentence for the 1992 activity his election to his continue criminal explained crime of conviction. The court after the became amendment effective. He although clearly defendant was disad- easily coming could avoided have under the vantaged by felony aggravated enhance- continuing possess amendment not ment, he not for the sentenced United States penal- for illegal entry, offense but and the Cir.1994), Cooper, 35 F.3d 1250 unambiguous ties were he when reentered remanded, vacated 514 U.S. country after 1988. (1995), opiniоn S.Ct. reinstated, Cir.1995); Here, F.3d 761 see application guideline of the amended also, Cabrera-Sosa, pre-amendment relevant conduct used to Cir.), post-amend- U.S. enhance the sentence for the — -, (1996); L.Ed.2d 151 ment retroactively crime not conviction.did Bailey, penalty United States v. F.3d 1381 earlier for the crime. increase (11th Cir.1997). Instead, provided penalty it stiffer application crime of Although conviction. States, Moreover, in v. United Witte guideline may the amended have disadvan- S.Ct. L.Ed.2d 351 Svacina, taged post it did not violate the ex (1995), uncharged the Court held use of mis- facto clause because he was sentenced for post- conduct to enhance sentence for pre-amendment relevant conduct. guidelines crime conviction does not vio- post late the ex clause. application guide- facto This circuit has Because of the amended' analysis clause, also rejecting used the same ex post line-does not violate the ex facto post facto claims based on amendments we' need not address whether waived Svacina In sentencing objections laws. government’s States v. Had- failure to methamphetamine at sen- prove type of

tencing might have an ineffec- or whether he claim.

tive assistance counsel PIERCE, Plaintiff-Appellant,

Pascal D. SMALL’S OF BRANSON

SHORTY

INC., Defendant-Appellee.

No. 97-6001. Appeals, Court of

Tenth Circuit. 3, 1998.

March 10th R. U.S.S.G. notes Indus., 1548, App. United.States v. 48 F.3d at 21-22. Janus lant’s record is Because (10th Cir.), 824, permit proper 516 U.S. S.Ct. a insufficient issue, assessment of the 87, (1995); 133 L.Ed.2d 44 United v. Vas we will not review contention. States Defendant’s (10th 1993). Co., quez, Mfg. 985 F.2d 494-95 v. Cir. Thе See Deines Vermeer 969 F.2d (10th 1992). provided limited record contradicts Defendant's 979-80 Cir. rule, crime, the defendant is the “one book” “[i]f the first committed Svaeina When offenses, two the first committed provided lighter a sentence for convicted of guidelines before, after, a revised edi- L-methamphetamine than for and the second possession of became effec- quantity of D-meth of the Guidelines Manual equal of an tion tive, of the Guidelines government had the revised edition amphetamine, and the proving type applied to both offenses.” sentencing of Manual is to be burden lBl.ll(b)(3). Application § Note methamphetamine possessed. United U.S.S.G. Lande, explains: Cir. 40 F.3d v. Deninno, 1994); 29 F.3d States v. United (b)(3) provides that where Subsection (10th Cir.1994). However, when 572, 580 offenses, of two the defendant is convicted crime, committed the second Svaeina before, the second the first committed same sentence for provided the guidelines after, a revised edition of Guidelines for D- L-methamphetamine as possession effective, the revised edi- Manual became sentencing In him for is to be tion of the Guidelines Manual (cid:127) offense, treated the district court the later offenses, if the revised applied to both even of methamphetamine involved both the' penalty for in an increased edition results D-methamphetamine. fenses first offense. Beсause the defendant completed convicted of the earlier offense after Had Svaeina been second effect, crime, application guidelines took not the later amendment crime and prevent guidelines post to determine does not the amended the ex facto clause post determining violate the ex facto for that count drug quantity would the sentence is violated For post guidelines. The ex facto clause on the amended clause. based sentencing pleads guilty to a application example, of an amended if a defendant when occurring before its that oc- guideline single to an event cоunt of embezzlement disadvantages of the the defendant after the most recent edition enactment curred effective, increasing punishment for the crime became Guidelines Manual sentencing guideline range applicable the defendant is sentenced. which Mathis, 433, -, encompass any (e.g., Lynce v. relevant conduct will 892, 137 (1997); may L.Ed.2d 63 Miller offenses that S.Ct. related embezzlement Florida, 423, 430, 107 prior S.Ct. to the effective date have occurred (1987). Thus, amendments) when the guideline 96 L.Ed.2d 351 for the offense in of conviction is for the crime of conviction. The same would be true sentence after the by an amendment enacted convicted of two counts of creasеd a defendant committed, post embezzlement, facto the ex before the crime was one committed enacted, is violated. See United States were and the second clause amendments (8th Cir.1996); McMullen, example, post facto after. In this the ex Gerber, application States v. clause not bar would Cir.1994). conviction; guideline amended to the first contrary conclusion would mean Svaeina That is not what occurred here. subject to a lower such defendant was pre-amendment ‍‌​‌‌​‌​‌​‌​‌​‌‌​​​‌​‌​​‌‌​‌‌‌‌​‌‌‌‌​​‌‌‌‌​‌​‌‌‌​‍for the was not sentenced only guideline range than if convicted post-amend- His sentence for the offense. the second offense. not retroac- ment crime of conviction was The tively by the amendment. increased commentary interprets Guidelines binding commentary, as well as guidelines unless it explains guideline is authoritative appli- precedent, compels the conclusion statute, or a federal violates the Constitution guidelines pre- cation of the amended interpretation plainly or is a erroneous conduct does not vio- amendment relevant States, 508 U.S. guideline. v. United Stinson post facto clause. late the ex (1993); McCloud, 127 F.3d 1284 States v. Generally, guidelines manual effect United Cir.1997). commentary is not sentencing applies, unless it date application an amend- clearly wrong about post clause. violate the ex facto would (b). However, pre-amendment lBl.ll(a), guideline to unconvicted under ed U.S.S.G.

Case Details

Case Name: United States v. Dale F. Svacina

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Mar 2, 1998

Citation: 137 F.3d 1179

Docket Number: 96-3317

Court Abbreviation: 10th Cir.