Unpublished Disposition, 904 F.2d 41 (9th Cir. 1990)

MEMORANDUM^* 

Appellant Howard J. Harris pleaded guilty to a count of distribution of phencyclidine (PCP), a violation of 21 U.S.C. § 841(a) (1), in each of two indictments. Counts relating to a conspiracy to manufacture PCP, manufacture of PCP, and maintaining a place for the manufacture of PCP, were dismissed pursuant to a plea agreement. The district court sentenced Harris under the Sentencing Guidelines to 360 months imprisonment on each count, followed by five years of supervised release, all to run concurrently.

We are unable to determine from the record which sentencing range was used by the sentencing court. Because the record supports either of two sentencing ranges, and the application of one might result in a lesser sentence, we remand with instructions to enter specific findings supporting the sentence and, if appropriate, for a reduction of the sentence.

The sentencing court did not make an explicit finding as to Harris' base offense level. The presentence report recommended a base offense level of thirty-six, by considering the PCP amounts involved in the dismissed counts in addition to those involved in the counts of conviction. The report recognized that if the court only considered the amounts of PCP involved in the counts to which Harris pleaded guilty, the offense level would by thirty-four.

As will be discussed in more detail below, see Section IV, infra, the 360-month sentence suggests the sentencing court adopted the report's recommendation to consider the PCP amounts involved in all counts, including the dismissed counts.

Harris relies on United States v. Restrepo, 883 F.2d 781 (9th Cir. 1989) for the proposition that the sentencing court cannot consider the drug amounts involved in the dismissed counts in setting the defendant's base offense level. Restrepo was withdrawn, however. United States v. Restrepo, 896 F.2d 1228 (9th Cir. 1990). The subsequent Restrepo opinion observed that the Sentencing Commission allows aggregation of drug amounts involved in counts for which "the defendant is neither charged nor convicted but that were 'part of the same course of conduct or common scheme or plan as the offense of conviction,' " United States v. Restrepo, No. 88-3207, slip op. 4491, 4501 (9th Cir. May 8, 1990) (Restrepo II) (quoting the Background Commentary to Sec. 1B1.3), and adopted that approach. Id. at 4502. See also United States v. Turner, 898 F.2d 705, 711 (9th Cir. 1990).

We conclude that if the sentencing court considered the PCP amounts involved in the dismissed counts, the resulting base offense level of thirty-six would have been proper.

We are, however, unable to discern from the record whether the sentencing court took this approach. The court did not specify Harris' base offense level. Although the court stated at the sentencing hearing that it was sentencing Harris only on the basis of the counts to which Harris pleaded guilty, Transcript 11/28/88 (Transcript) at 12, the 360-month sentence suggests that the court may have changed its mind. See Section IV, infra. Because a base offense level of thirty-four may result in a lower sentencing range than a base offense level of thirty-six, we remand for a specific finding as to the base offense level.

The sentencing court clearly considered Harris to be a leader of a criminal activity, see Transcript at 3-4, 5-6, but the record is unclear as to the number of subordinate participants for whom the court found that Harris was a leader. If the court found that Harris was a leader of five or more participants, the resulting increase should have been of four levels. Guideline Sec. 3B1.1(a). If the court found that Harris was the leader of less than three participants, the increase should have been of two levels. Guideline Sec. 3B1.1(c).

Only two participants were involved in the distribution scheme, namely William Teague and Godfrey Carroll. Presentence Report p 20. Those two and three additional participants were involved in the manufacturing scheme. Id. Although the counts relating to the manufacturing scheme were dismissed, the presentence report considered Harris was the leader of criminal activity involving all five participants, and recommended a four-level increase.

The sentencing court made no explicit finding as to the increase in level, nor as to the number of participants for whom Harris was a leader. At one point of the sentencing hearing the court stated that Harris was a leader, Transcript at 3-4, 5-6, but at another point it stated that Harris was a go-between between the manufacturers and the undercover agent purchasing PCP. Id. at 11. Arguably the court meant that Harris was a leader as to the distribution of PCP, but not a leader as to the manufacturing operation, and increased his offense level by two levels. However, since the 360-month sentence suggests that the court might have adopted the presentence report's recommendation and increased the offense level by four levels, see Section IV, infra, we find the record ambiguous. We remand for specific findings of either a two- or a four-level increase due to Harris' leadership role.¹ 

Harris argues that the sentencing court wrongfully failed to grant a two-level reduction for acceptance of responsibility. "Whether or not a defendant has accepted responsibility for his crime is a factual determination" which we review under the clearly erroneous standard. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). The defendant bears the burden of showing that he accepted responsibility. See United States v. Howard, 894 F.2d 1085, 1089-90 & n. 4 (9th Cir. 1990). The mere fact that a defendant pleaded guilty to an offense does not, by itself, entitle the defendant to a downward adjustment. See Guideline Sec. 3E1.1, Application Note 3.

We affirm the sentencing court's decision not to reduce Harris' offense level by two levels. At sentencing, the court told Harris' attorney that the guilty plea was insufficient to award the two-level reduction. Transcript at 3. Harris' attorney responded that he had nothing to reply. Id. Harris therefore did not meet his burden of showing he was entitled to a reduction for acceptance of responsibility.

As mentioned previously, we cannot determine from the record which sentencing range the sentencing judge applied when sentencing Harris. Two sentencing ranges seem possible: (1) a range of 292 to 365 months; and (2) a range of 360 months to life.

The lower range results if we assume that the judge considered only the events relating to the counts of conviction, thereby setting Harris' base offense level at thirty-four, and adjusting upward two levels by considering Harris as the leader of criminal activity involving only two participants. See Guideline Table Sec. 5A (a defendant with criminal history category V, as Harris, and an offense level of 36 produces a range of 292-365 months).

The upper range results under any other combination of the factors applicable to Harris' sentence: (1) if the sentencing court considered the dismissed counts in setting Harris' offense level at thirty-six, and only adjusted it upward by two levels for his leadership role; or (2) if it considered Harris' base offense level at thirty-four and increased it by four levels by considering Harris to be the leader of five participants; or (3) if it considered Harris' base offense level as thirty-six and increased it by four levels. See id. (an offense level of thirty-eight or forty with a criminal history category V produces a range of 360 months to life).

The court imposed a sentence of 360 months. Absent any explanation for the particular sentence, it appears plausible that the court might have thought that the applicable sentencing range was 360 months to life, and sentenced Harris on the lower end of this range. As discussed, however, a lower range is also possible on this record. Because of the ambiguity in the record, we cannot discern which range the court found to be appropriate. If the lower range is applicable, a sentence of less than 360 months would also have been proper. We therefore remand with instructions that the court enter findings as to Harris' base offense level and leadership role. We also remand for resentencing in the event the court's findings result in a total offense level of less than thirty-eight.