United States of America, Plaintiff-appellee, v. James Daryl Evans, Defendant-appellant.united States of America, Plaintiff-appellee, v. Rico Orlando Walker, Defendant-appellant.united States of America, Plaintiff-appellee, v. William Robert Young, A/k/a Charlie Chin, Defendant-appellant.united States of America, Plaintiff-appellee, v. Brian Demetrius Murray, Defendant-appellant.united States of America, Plaintiff-appellee, v. Wesley Kimball Kelly, Defendant-appellant, 905 F.2d 1532 (4th Cir. 1990)

Before the Court are the appeals of James Daryl Evans, Rico Orlando Walker, Brian Demetrius Murray, William Robert Young, and Wesley Kimball Kelly. The appellants allege error in the district court's application of the Sentencing Guidelines promulgated pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551, et seq. ("Sentencing Guidelines"). Specifically, the appellants contend that the district court erred by considering evidence related to indictment counts that had been dismissed pursuant to plea bargains.

The case involves a six-count indictment issued against the appellants. Count one charged all of the appellants with conspiracy to possess and distribute cocaine and heroin. Counts two through six charged certain of the appellants with possession of, or possession of with intent to distribute, certain amounts of cocaine or heroin. A superseding information against Walker charged him with one count of possession of cocaine and one count of possession of heroin. None of the appellants pled guilty to the conspiracy count of the indictment. Instead each pled guilty only to either one or two of the other five counts, with the exception of Walker who pled guilty to the two counts in the superseding information against him.

Sentencing Guidelines Sec. 1B1.3(a) (2) provides:

The conduct that is relevant to determining the applicable guideline range includes that set forth below.

(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:

... (2) solely with respect to offenses of a character for which Sec. 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.

(Emphasis added.) The offenses to which the appellants pled guilty were offenses for which Sec. 3D1.2(d) would require grouping of multiple counts. Thus, in the case before us, the Sentencing Guidelines call for consideration 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" when determining the appellants' base offense levels.

Pursuant to the Guidelines, the appellants' presentence reports determined the base offense level by considering not just the amount of drugs alleged in the counts to which the defendants pled guilty. Instead, computation of the base offense level included consideration of the amount of drugs alleged in the conspiracy count. The district court sentenced the appellants accordingly.

The appellants have taken the position that "it is improper to aggravate a sentence imposed upon a plea of guilty by consideration of quantities of controlled substances reflected in counts of an indictment to which they did not enter pleas and for which no explicit factual basis was determined." Appellants' Brief at 15. The appellants believe that the district court's approach is unfair and they cite for supporting authority United States v. Smith, 1 Fed.Sent.R. 191 (W.D. Tenn. 1988) ("the conduct necessary to support inclusion in the base offense level must be established by finding of the jury, a plea of guilty confirmed by a finding of guilty in open court, or a stipulated offense other than the offense of conviction on a plea of guilty or nolo contendere"), rev'd, United States v. Smith, 887 F.2d 104 (6th Cir. 1989).

The appellants' argument faces the insurmountable hurdle of a growing body of contrary case law, including decisions of this Circuit. For example, in United States v. Williams, 880 F.2d 804 (4th Cir. 1989), we approved of the very Guidelines provision at issue here. Moreover, in United States v. Isom, 886 F.2d 736 (4th Cir. 1989), we held that a district court could properly enhance a defense level based on acts for which the defendant was acquitted. Noting that "for facts at sentencing, the burden of proof by a preponderance obviously differs in a significant way from proof beyond a reasonable doubt," id. at 738 n. 3, we observed that "a verdict of acquittal demonstrates only a lack of proof beyond a reasonable doubt; it does not necessarily establish the defendant's innocence." Id. at 738. In addition, other circuits, including the circuit from which the appellants' supporting authority emanates, see United States v. Smith, 887 F.2d 104 (6th Cir. 1989), have upheld the application of Sec. 1B1.3(a) (2). See United States v. Taplette, 872 F.2d 101 (5th Cir.), cert. denied, 110 S. Ct. 128 (1989); United States v. Guerrero, 863 F.2d 245 (2d Cir. 1988). As a result, we reject the appellants' argument.

The judgment of the district court is therefore

AFFIRMED.