UNITED STATES of America, Plaintiff-Appellee, v. Dario RESTREPO, Defendant-Appellant.
No. 88-3207
United States Court of Appeals, Ninth Circuit.
Decided Aug. 24, 1989.
Argued and Submitted April 6, 1989.
884 F.2d 781
The Navy itself recognized that the bars manufactured without the design changes covered by the SCP were workable. This is most clearly evidenced by the fact that, although the Navy was aware of the changes wrought by the SCPs, it nevertheless approved the ordering and use of forty-two pre-change design bars for use in launching F-14s from aircraft carriers. The Navy merely assigned a different part number to these pre-change units to keep track of their shorter life span. There is nothing in the record to suggest that any of these pre-change bars ever failed to operate properly. The record does contain evidence that in over 250,000 deck launches using the bar only one possible operational failure has ever been noted.
The government directs us to language in Bell Helicopter Textron, 85-3 B.C.A. (CCH) at 92,423, suggesting that if a contractor receives even partial reimbursement for development costs previously voluntarily expended, the government may receive unlimited data rights. We do not believe such a rule, even if appropriate in some cases, should apply in a situation like this where the contractor could not reasonably have been aware that an application for reimbursement could later lead to total forfeiture of data rights which the contractor had in good faith sought to retain by appropriate legends. Here the government did not give Decoto any notice of its intent to claim data rights until ten years after the SCP was submitted.
The Navy contracting officer‘s findings that the key research and development, as defined under the standard of Bell Helicopter Textron and
The district court‘s entry of injunction against the Navy was proper and is AFFIRMED.
Stephen Cooper, Asst. U.S. Atty., Fairbanks, Alaska, for plaintiff-appellee.
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 Guidelines1 (“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
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
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 Guidelines6 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
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 § 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 § 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 § 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 DeMaldonado‘s counts (III and IV) with the quantities in Restrepo‘s counts (I and II) pursuant to Sections 3D1.2(d) and 3D1.3(b).10
We are not persuaded by the government‘s argument. In our view, the Multiple Counts section, by its explicit terms, applies only to counts of which the defendant has been convicted. As noted above, the opening sentence of the Multiple Counts section refers to “all the counts of which the defendant is convicted,” Guidelines at 3.9 (emphasis added), and Section 3D1.1 provides instructions for when “a defendant has been convicted of more than one count....” Guidelines at 3.10 (emphasis added). The language that the government cites in the Relevant Conduct section—which provides that conduct related to counts of conviction can be grouped together with conduct not related to any count of conviction—conflicts with the above quoted language of the Multiple Counts section.
At best, the Guidelines are ambiguous because they support both the interpretation offered by Restrepo and the interpretation offered by the Government. Given this ambiguity, our interpretation of the Guidelines should be informed by the “rule of lenity.” The Supreme Court articulated this rule in Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), stating that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Id. at 812, 91 S.Ct. at 1059; see also Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). More recently, the Court has held that the rule of lenity “applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose.” Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980).
Applying the rule of lenity, we hold that the district court erred in interpreting the Multiple Counts section of the Guidelines to require aggregation under subsections 3D1.2(d) and 1B1.3(a)(2) of quantities of drugs involved in counts of which Restrepo was convicted with quantities of drugs involved in counts of which Restrepo was neither charged nor convicted.
REVERSED AND REMANDED.
BOOCHEVER, Circuit Judge, dissenting:
Because I believe the Sentencing Guidelines, read in conjunction with the commentary sections, are not ambiguous as to whether conduct of which the defendant is not convicted can be aggregated to determine the total offense level, I respectfully dissent.
I could agree with the majority opinion were it not for the amendments to the commentary in 1988.1 The commentary to section 1B1.3 provides that: “Similarly, in 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.” United States Sentencing Commission Sentencing Guidelines Manual 1.19 (January 15, 1988) [hereinafter Guidelines]. The commentary to section 1B1.3 further provides that “multiple convictions are not required.” Guidelines at 1.18 (January 15, 1988).
The majority finds this commentary inconsistent with provisions of the Multiple Counts section of the Guidelines referring to aggregating “all the counts of which the defendant is convicted“, Guidelines at 3.9 (October 1987), and section 3D1.1 referring to “when a defendant has been convicted of more than one count.... Guidelines at 3.10 (October 1987). Consequently, the majority applies the rule of lenity because “[a]t best, the Guidelines are ambiguous because they support both the interpretation offered by Restrepo and the interpretation offered by the Government.” Opinion at 11. The sections cited by the majority, however, do not limit the aggregated quantity to the amounts charged in the counts of which the defendant is convicted. They do not state that only the counts of which the defendant is convicted may be considered. There is no inconsistency, therefore, when another provision mandates adding quantities of drugs “not specified in the count of conviction ... if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” See Guidelines § 1B1.3, commentary at 1.19 (January 15, 1988); see also United States v. Ruelas-Armenta, 684 F.Supp. 1048 (C.D.Cal.1988).
The Guidelines support the interpretation offered by Restrepo only if the commentary to the Guidelines is ignored. Section 1B1.7 of the Guidelines provides:
The Commentary that accompanies the guideline sections may serve a number of purposes. First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. Second, the commentary may suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines. Such commentary is to be treated as the legal equivalent of a policy statement.
Guidelines at 1.22 (January 15, 1988) (emphasis added) (citation omitted). The commentary to this section further provides that: “in seeking to understand the meaning of the guidelines courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them. In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of a drafter.” Guidelines at 1.22 (January 15, 1988). In this case, I believe the Sentencing Commission‘s intent is clear that conduct of which the
This case also raises the question whether the amended commentary may constitutionally be applied to conduct that occurred before the effective date of the amendments. If Restrepo furnished drugs to Maldonado before January 15, 1988, the effective date of the amended Guidelines, and those quantities were considered in the sentencing, I believe that an ex post facto question may be involved. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). A difficult constitutional question would be presented as to whether the amended commentaries would be considered “laws” for purposes of the ex post facto clause. See Vermouth v. Corrothers, 827 F.2d 599, 604 (9th Cir. 1987) (parole guidelines established by the Parole Commission were not “laws” for purposes of the ex post facto clause). Before attempting to resolve that difficult constitutional issue, however, it would be necessary to remand to the trial court for a determination of the exact dates when Restrepo furnished drugs to Maldonado. I, therefore, would remand the case to the trial court for that purpose.
HARRY PREGERSON
UNITED STATES CIRCUIT JUDGE
Notes
[I]t shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....
Restrepo also contends that the Sentencing Reform Act of 1984 and the Guidelines promulgated thereunder violate the federal constitutional doctrine of separation of powers. Since Restrepo‘s appeal was filed, however, the Supreme Court has held that no such infirmity exists. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).
After oral argument, the contention that the Guidelines violate the United States Constitution‘s ex post facto clause was raised as an alternative ground for reversing the district court. In light of the fact that we dispose of this case on a statutory ground, we need not reach the constitutional argument. See Califano v. Yamasaki, 442 U.S. 682, 692-93, 99 S.Ct. 2545, 2553-54, 61 L.Ed.2d 176 (1979) (“A court presented with both statutory and constitutional grounds to support the relief requested usually should pass on the statutory claim before considering the constitutional question. Due respect for the coordinate branches of government, as well as a reluctance when conscious of fallibility to speak with our utmost finality, counsels against unnecessary constitutional adjudication.“) (citations omitted).