United States of America, Plaintiff-appellee, v. Paul Michael Woolford, Defendant-appellant, 896 F.2d 99 (5th Cir. 1990)

Paul Michael Woolford pleaded guilty to and was convicted of conspiracy to possess with intent to distribute over 50 kilograms of marihuana. Woolford was sentenced under the Federal Sentencing Guidelines to fifty months in prison. We affirm the sentence.

* In December 1987, Paul Michael Woolford was indicted for conspiracy to possess with intent to distribute in excess of 50 kilograms of marihuana from October 1987 through about November 13, 1987. At the same time, he was also indicted for the substantive offense of possession with intent to distribute. Woolford pleaded guilty to the conspiracy charge. On February 7, 1989, he was sentenced pursuant to the Federal Sentencing Guidelines.

In determining Woolford's sentence, the district court calculated the amount of marihuana involved in the offense at 202.7 kilograms (446 pounds), creating a base offense level of 26. The court relied upon the involvement of this amount in spite of the fact that only 180 pounds of marihuana were discovered at the time of Woolford's arrest. The court arrived at its total by combining the 180 pounds with quantities of marihuana that Woolford had apparently possessed and transported earlier in the year, but which amounts were not included in the conspiracy charge.

From the base offense level of 26, the district judge increased the offense level by two by finding that Woolford organized the conspiracy. Then, with a further finding that Woolford had accepted responsibility for his conduct, the judge decreased the offense level by two. Hence, the total offense level was 26. Because Woolford had no countable prior criminal convictions, he had a criminal history category of one. The applicable guideline range for the category and offense level was 63-78 months.

In imposing sentence, the court took a discretionary downward departure because others similarly involved in the same transaction had been sentenced pursuant to old law and received lesser sentences. See 18 U.S.C. § 3553(a) (6). Accordingly, Woolford was sentenced to 50 months in prison followed by three years of supervised release. He also was fined $20,000 plus costs of supervision.

Woolford appeals the sentence by challenging the effective date of the Federal Sentencing guidelines, the Constitutionality of the guidelines, and the court's calculation of the amount of marihuana involved in determining the base offense level.

II

Woolford argues that the effective date of the sentencing guidelines should be December 19, 1987 instead of November 1, 1987. Since his conspiracy ended before the December date, he argues that the district court erred in applying the federal sentencing guidelines.

Woolford bases this argument on the statute enacting the guidelines, which contained a provision precluding it from taking effect until six months after the Sentencing Commission transmitted its report to Congress for review. See Continuing Appropriations, 1985--Comprehensive Crime Control Act of 1984, Pub. L. 98-473 Sec. 235, 98 Stat. 1837, 2031-32 (1984). Since that transmission did not happen until June 18, 1987, he contends, the guidelines could not have become effective prior to December 19, 1987.

While Woolford correctly argues that the guidelines were not to go into effect until after Congress had six months to consider the report, his assertion that the report was not transmitted until June 1987 is incorrect. Congress received the submission of the guidelines and policy statements with commentary on April 13, 1987, more than six months before the November 1987 effective date. See Sentencing Guidelines and Policy Statements (April 13, 1987); 133 Cong.Rec. H8107 (daily ed. Oct. 5, 1987) (statement of Rep. Conyers). On June 18, 1987, the Commission submitted only a supplementary report. See Supplementary Report on the Initial Sentencing Guidelines and Policy Statements (June 18, 1987).

Because there is no legislative history to indicate anything other than that the six month period was to begin running in April,¹  we hold that the effective date of the guidelines is November 1, 1987. To hold otherwise would go against every decision handed down by this and other courts since the existence of the guidelines. See, e.g., United States v. Hurtado, 846 F.2d 995, 996 (5th Cir. 1988), cert. denied, Aguas v. United States, --- U.S. ----, 109 S. Ct. 163, 102 L. Ed. 2d 133 (1988).

III

Woolford next argues that the sentencing guidelines are unconstitutional because they fail to afford defendants due process rights. The Supreme Court already has upheld the guidelines against basic Constitutional challenges. Mistretta v. United States, --- U.S. ----, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989). But Woolford, relying largely on Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), focusses on the need for individualized sentencing. The government's interest in obtaining a uniform system of sentencing, he claims, is inferior to the personal liberty interests of those sentenced. Hence, Woolford contends, the district judge should have taken into consideration particular mitigating aspects of Woolford's life in determining his sentence.² 

This attack on the sentencing guidelines is not unique. Indeed, it already has been considered by this court. In United States v. White, 869 F.2d 822 (5th Cir. 1989), cert. denied, --- U.S. ----, 109 S. Ct. 3172, 104 L. Ed. 2d 1033 (1989); cert. denied, Chambless v. United States, --- U.S. ----, 110 S. Ct. 560, 107 L. Ed. 2d 555 (1989), we rejected the argument:Appellants argue that this restricted discretion violates the Due Process Clause because it unduly limits the right of an accused to present mitigating factors prior to sentencing. There is, however, no such right guaranteed by the Constitution. The Constitution does not require individualized sentences. [citation] Congress has the power to completely divest the courts of their sentencing discretion and to establish an exact, mandatory sentence for all offenses.

White, 869 F.2d at 825 (citing Lockett v. Ohio, 438 U.S. 586, 602, 603-04, 98 S. Ct. 2954, 2963, 2964-65, 57 L. Ed. 2d 973 (1978)).

There is no difference between Woolford's contention and the one rejected in White. We find no Constitutional violation.

IV

Woolford's final attack on his sentence involves the district court's aggregation of the 180 pounds of marihuana found when Woolford was arrested and other amounts of marihuana Woolford had possessed and transported in the months prior to his arrest. The court combined the amounts, even though the previous amounts were not a part of the charge in this case.³  As a result of the aggregation, Woolford's base level for sentencing purposes was 26 rather than 24. Woolford asserts that given the two-step increase and decrease the judge made, the applicable guideline range for the resulting 24 level without the aggregation would have been only 51-63 months. Then, Woolford claims that with the same type of discretionary downward departure the judge made he would have received a much lighter sentence.

Since Woolford was sentenced in February 1989, all the 1988 amendments to the guidelines are applicable to his case. See 18 U.S.C. § 3553(a) (4) & (5) (courts should consider guidelines and policy statements issued by the Sentencing Commission that are in effect on the date of sentencing).⁴  Consequently, Sec. 1B1.3 of the Guidelines, as amended on January 15, 1988, controls this issue.⁵  That section allows for the consideration of "relevant conduct" in determining the base offense level to be applied to a particular case. Specifically, Sec. 1B1.3(a) (2) provides for the inclusion of "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction" in grouping multiple counts.⁶  The Commentary to the guidelines explains the applicability of this section to drug cases: " [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." Guidelines, Sec. 1B1.3 Commentary, Background (January 15, 1988). Accordingly, we have held that "the district court is not bound by the quantity of drugs mentioned by the indictment." United States v. Sarasti, 869 F.2d 805, 806 (5th Cir. 1989).

In aggregating the marihuana amounts, the district judge relied on both Sec. 1B1.3 and Sec. 2D1.4. At the time of sentencing, the latter provision read:

(a) Base Offense Level: If a defendant is convicted of participating in an incomplete conspiracy or an attempt to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy or attempt had been completed.

Guidelines, Sec. 2D1.4 (November 1, 1987). An application note explained that " [i]f the defendant is convicted of conspiracy, the sentence should be imposed only on the basis of the defendant's conduct or the conduct of co-conspirators in furtherance of the conspiracy that was known to the defendant or was reasonably foreseeable." Guidelines, Sec. 2D1.4 Commentary, Application Note 1 (November 1, 1987). Hence, upon accepting the presentence report's conclusion that the transportations were all a part of the same plan or conspiracy, the district court based its aggregation of the marihuana amounts on two grounds: (1) that the other transportations were in furtherance of the conspiracy and (2) that the other transportations were part of the same scheme or plan.

Woolford does not attack the district court's application of these sections of the guidelines to his case. Rather, he argues that the earlier transportations constituted separate transactions and were therefore neither in furtherance of the conspiracy nor part of a common scheme or plan. There is not a sufficiently strong nexus, he claims, between the transactions.

Our review of the district court's decision on this issue is governed by statute. 18 U.S.C. § 3742 directs that the Courts of Appeals

shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

18 U.S.C.A. Sec. 3742(e) (West Supp.1989). Under this deferential standard, we find no basis for upsetting the trial court's conclusion that the earlier transactions were part of the same scheme or plan. We need not decide whether the court's determination that Woolford's earlier transactions were part of the same scheme is a finding of fact, subject to the clearly erroneous standard of review, or whether it is an application of the guidelines to the facts and therefore entitled to due deference.⁷  Under either standard we find no reversible error.

The presentence report contains information indicating that all the transactions with which Woolford was involved included the same people as the transaction for which he was charged and even involved the same shipment of marihuana. Woolford has not objected to this conclusion. He claims instead that the transaction for which he was charged was distinct because it involved an attempt to return to Mississippi marihuana he had already obtained from someone selling the marihuana in Denver. Woolford apparently took the marihuana in order to return it to the supplier in Mississippi. Woolford claims that the marihuana had been picked up earlier in New Orleans and transferred to Denver to the person from whom Woolford later obtained the marihuana for return. Since the transaction for which Woolford was charged only occurred after a government informant had solicited the marihuana and involved delivery to Mississippi instead of Denver, Woolford claims the transactions were part of a separate plan. We find no support for Woolford's claim.

The presentence report makes it clear that all the transactions were a part of an organized drug operation. All the marihuana originated from the same shipment from the same country and involved all the same people. There is no basis, therefore, for Woolford's argument that the latter transaction was part of a different conspiracy just because it was a distinct transaction. One of the clear purposes of Sec. 1B1.3 of the guidelines is to include different transactions that are relevant to the charged conduct, particularly if they are part of a "common scheme or plan." Certainly transactions that are part of the same conspiracy meet this definition. Accord United States v. White, 888 F.2d 490, 500 (7th Cir. 1989) (equating "common scheme or plan" with "single conspiracy").

Giving due deference to the district court's conclusion that Woolford's earlier transactions were a part of the same scheme or plan as the one for which he was charged, we find no reversible error in the calculation of his sentence.

AFFIRMED.