Unpublished Dispositionnotice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.united States of America, Plaintiff-appellee, v. William C. Lemons, Defendant-appellant.united States of America, Plaintiff-appellee, v. Joseph A. Kraus, Defendant-appellant, 909 F.2d 1486 (7th Cir. 1991)

ORDER

Defendants William C. Lemons and Joseph A. Kraus appeal from their sentences imposed pursuant to a plea agreement under Fed. R. Crim. P. 11(e) (1) (C). We consolidated their appeals, and for the reasons set forth below, we affirm both sentences.

Lemons pled guilty to ten counts of various cocaine distribution charges, with an agreed upon sentence of 15 years (180 months). Lemons' Presentence Investigation Report calculated his Criminal History Category as Level I, his offense level as 34, and his guidelines range as 151 to 188 months. The district court sentenced him to 180 months on each count, to be served concurrently. On appeal, he argues that he should not have been sentenced under the Sentencing Reform Act because his offenses occurred prior to November 1, 1987, that the district court should have required proof beyond a reasonable doubt of the amount of drugs involved in his offense and his status as an organizer, and that the Narcotic Penalties and Enforcement Act is unconstitutional.

Kraus pled guilty to eight counts of various cocaine distribution charges, with an agreed upon sentence of 15 years (180 months). Kraus' Presentence Investigation Report calculated his Criminal History Category as III and his offense level as 34,¹  with a resulting sentencing range of 188 to 235 months. The district court sentenced him to 180 months on each count, to be served concurrently. On appeal, he argues that his Criminal History Category was improperly based on unconstitutional convictions, and that he was improperly categorized as an organizer of the drug activity.

In both appeals, the government first argues that we should not even reach the merits of defendants' claims because we have no jurisdiction over these appeals. It argues that 18 U.S.C. § 3742 does not allow for the filing of a notice of appeal in this case. We disagree. While Sec. 3742(c) (1) provides that a defendant who has entered a plea under Rule 11(e) (1) (C) may not appeal under Sec. 3742(a) (3) or Sec. 3742(a) (4) if he has not received a sentence greater than that in the plea agreement, there is no such prohibition against bringing an appeal under Sec. 3742(a) (1) or Sec. 3742(a) (2). Here, Lemons' claims all fall under Sec. 3742(a) (1) as claims that his sentence was imposed in violation of the law, and Kraus' claims both fall under Sec. 3742(a) (2) as claims that the guidelines were incorrectly applied in his case to establish his guidelines range. Although both defendants signed plea agreements setting forth a sentence of 180 months, that does not prevent them from challenging the legality of the sentence that was imposed or the accuracy of the guidelines range determination. First, an illegal sentence cannot be enforced regardless of the plea agreement. Second, defendant Kraus' challenge regarding the application of the guidelines, if correct, would reduce the upper end of his guideline range to under 180 months, and thus have provided a different scenario for the district court judge, who, prior to accepting a plea, must specifically find justifiable reasons for any departure from the guidelines in a plea agreement's stipulated sentence. Sec. 6B1.2. In U.S. v. Tholl, 895 F.2d 1178, 1180 n. 2 (7th Cir. 1990), we held that we had jurisdiction over the appeal of a defendant who was sentenced pursuant to a plea agreement since he raised challenges under Sec. 3742(a) (1) and Sec. 3742(a) (2). Defendants thus are not and should not be prevented from appealing their sentences here.

Lemons makes three arguments on appeal. First, he argues that the Sentencing Reform Act was inapplicable to Count I of his sentence, since it is only applicable to crimes committed after November 1, 1987, and that the conspiracy alleged in Count I occurred in the Spring of 1986. He claims that application of the Act to him violates the ex post facto clause of the Constitution. Lemons argues that the conspiracy began before November 1, 1987, and the overt acts were committed at this time, and that the fact that his involvement in the conspiracy continued after that date is irrelevant because the Act is inapplicable to offenses begun before November 1, 1987 but completed after that date. We disagree. "A statute increasing the penalty for conspiracy does not violate the ex post facto clause when applied to a conspiracy begun before the increase that continued on after the increase." U.S. v. Pace, 898 F.2d 1218, 1238 (7th Cir.), cert. denied, 58 U.S.L.W. 3835 (1990). In U.S. v. Paiz, No. 89-1264, slip op. at 32 (7th Cir. June 6, 1990), we held that the Controlled Substances Penalties Amendments Act of 1984 could be applied to a conspiracy which ran from 1983 to April or May of 1987, since the offense "ran after" the October 27, 1986 effective date of the Amendment. In Paiz, we cited with approval two cases from other circuits which applied this reasoning to the 1987 Amendment to the Sentencing Reform Act. Paiz, slip op. at 32 (citing U.S. v. Story, 891 F.2d 988 (2d Cir. 1989) and U.S. v. Lee, 886 F.2d 998 (8th Cir. 1989)). We now join the seven circuits that have addressed this issue in specifically holding that a defendant in a conspiracy which begins before and ends after November 1, 1987 is properly sentenced under the Sentencing Reform Act and the Sentencing Guidelines. See U.S. v. Meitinger, 901 F.2d 27 (4th Cir. 1990); U.S. v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990); U.S. v. Thomas, 895 F.2d 51 (1st Cir. 1990); U.S. v. Rosa, 891 F.2d 1063 (3d Cir. 1989); U.S. v. Story, 891 F.2d 988 (2d Cir. 1989); U.S. v. Lee, 886 F.2d 998 (8th Cir.), cert. denied, 110 S. Ct. 748 (1990); U.S. v. White, 869 F.2d 822 (5th Cir.), cert. denied, 109 S. Ct. 3172 (1989). The conspiracy with which Lemons was charged began in 1986 but continued until July 25, 1988; he therefore was properly sentenced under the Sentencing Reform Act.

Second, Lemons claims that the district court was required to find that the amount of the drugs involved in his transaction and his status as an organizer of the criminal activity were proven beyond a reasonable doubt, and that the failure to use the reasonable doubt standard violates due process. We have held that the "Guidelines' standard for resolving disputes is a preponderance of the evidence, not reasonable doubt." U.S. v. White, 888 F.2d 490, 499 (7th Cir. 1989). Use at sentencing of a standard less than "beyond a reasonable doubt" does not violate due process. Jones v. Thieret, 846 F.2d 457, 461-62 (7th Cir. 1988).

Finally, Lemons challenges the constitutionality of the Narcotics Penalties and Enforcement Act as creating two inconsistent penalty schemes in violation of due process. The mandatory minimum sentencing provisions under which Lemons was sentenced read:

such person shall be subject to a term of imprisonment which may not be less than [stated years] and not more than [stated years], a fine ..., or both.

21 U.S.C. § 841(b) (1). Lemons claims this allows for the imposition of a fine in lieu of a prison term, but that that is inconsistent with a sentence in each subparagraph which states that "the court shall not place on probation or suspend the sentence of any person sentenced under this paragraph", which suggests that a prison term is required in every instance. He argues that such ambiguity in the statute violates due process, as it is unclear whether there is or is not a mandatory minimum term of imprisonment required under the statute.

We agree with Lemons that the language of that isolated provision suggests that a fine could be imposed in lieu of imprisonment. However, when the language of Sec. 841(b) is viewed as a whole, as it must be, U.S. v. Franz, 886 F.2d 973, 977-78 (7th Cir. 1989); U.S. v. Sager, 881 F.2d 364, 366 (7th Cir. 1989), we think it clear that a term of imprisonment is required in all instances where the language begins "such person shall be sentenced to a term of imprisonment which may not be less than...." First, every provision that contains this language ends with the following language:

Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed herein.

Lemons himself states that this language implies that a term of imprisonment be imposed for every offense committed which is sentenced under these subparagraphs. Second, the fact that the provisions set minimum prison terms for each category of offense would make it unreasonable to read those provisions as optional or alternative to the provisions allowing for fines (which in contrast set maximum limits). Finally, the language of the subparagraphs in Sec. 841(b) contrasts with that found in Sec. 841(d), which states that persons possessing certain chemicals "shall be fined in accordance with Title 18, or imprisoned not more than ten years, or both." (emphasis added). The language of Sec. 841(d) is clearly in the alternative and a fine under this section may be imposed in lieu of the prison term. It is significant that the language in Sec. 841(d) was added in 1988; the prior language had the same format as that still found in Sec. 841(b), stating that the convicted person

shall be sentenced to a term of imprisonment not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, ..., or both.

Pub. L. 100-690, Sec. 6055. Viewing the statute as a whole, we find the provisions of Sec. 841(b) at issue here to be mandatory minimum imprisonment sentences. The language which Lemons challenges thus means that the judge can sentence a defendant to either just the imprisonment term, or the imprisonment term in combination with the designated fine.

Furthermore, the history of the revisions to Sec. 841(b) make it absolutely certain that Congress intended that these statutory provisions serve as mandatory minimum sentences. The purpose of the amendments was to strengthen the penalties for drug and narcotic offenses as part of the larger scheme of the Anti-Drug Abuse Act. "Courts should not interpret statutes in a manner inconsistent with the overall statutory scheme." Norwood v. Brennan, 891 F.2d 179, 182 (7th Cir. 1989). Lemons does not claim that the Congressional purpose was otherwise, but rather argues that Congressional intent cannot save the statute here because by its terms it violates due process, and the rule of lenity used in criminal cases must be applied. We find the rule of lenity inapplicable here, since that rule acts as a tie-breaker only "when there is an otherwise-unresolved ambiguity." White, 888 F.2d at 497. As stated above, any ambiguity has been resolved here.

Finally, we observe that the two other circuits to address this issue have reached the same conclusion we reach today. See U.S. v. Hoyt, 879 F.2d 505, 511-12 (9th Cir. 1989); U.S. v. Musser, 856 F.2d 1484, 1486 (11th Cir. 1988), cert. denied, 109 S. Ct. 1145 (1989).² 

The first argument we address in defendant Kraus' appeal is his claim that the district court improperly found that he was an organizer of the cocaine activity, and thus should not have increased his offense level by four on that basis under Sec. 3B1.1(a). Kraus argues that the government had to prove his organizational role either by clear and convincing evidence or beyond a reasonable doubt. As stated above, we have held that the standard for resolving disputes under the Guidelines is by a preponderance of the evidence. White, 888 F.2d at 499. Our standard of review over this factual determination is for clear error by the district court. U.S. v. Brown, 900 F.2d 1098, 1101 (7th Cir. 1990). Given the testimony at sentencing of Special Agent Waggoner regarding Kraus' fronting of money for cocaine purchases, his trips to Florida to negotiate for the purchase of cocaine, his purchase of cocaine when others involved in the activity were unable to do so, and his arranging for the transportation of the cocaine from Florida to Indiana, we cannot say that the district court's finding that Kraus played an organizational role in the cocaine transaction was clearly erroneous.

Kraus' second argument on appeal is that the district court should not have used his two 1977 Kentucky convictions to support a Criminal History Category III because those convictions were constitutionally invalid. It is true that a defendant may attempt to prove that prior convictions were invalid and therefore should not be included in the Criminal History Category calculation. Sec. 4A1.2, Application Note 6. However, we decline to address this issue here because even were we to agree with Kraus' argument there would be no need for a remand for resentencing. We will not resolve disputes over Criminal History Categories where the same sentence could have been imposed under either of the argued applicable categories, and it is reasonable to conclude that the same sentence would have been imposed under either category. U.S. v. Dillon, No. 88-3505, slip op. at 5-6 (7th Cir. June 20, 1990); see also U.S. v. Tetzlaff, 896 F.2d 1071, 1073 (7th Cir. 1990). Here, Kraus' claim, if accepted, would move him down to a Criminal History Category I. However, the range for that category with an offense at level 34 (which is the appropriate offense level given our rejection of Kraus' challenge to his four point increase as an organizer of the cocaine activity) is 151-188 months. Kraus' 180 month sentence is within that range. It is reasonable to conclude that Judge Barker would have imposed that same term even had she viewed the range as between 151-188 months rather than the 188-235 month range upon which she relied, because she was accepting the sentence stipulated to in the plea agreement rather than relying solely upon the guidelines range. Under the Guidelines the judge was required to determine the appropriate range and make sure the stipulated sentence was within that range or that any departure was justified. Here the judge found that departing downward eight months was justified because of Kraus' remorse and expression of intent to rehabilitate himself, and because she felt it important to impose the sentence which the defendant had agreed to and participated in. It is therefore reasonable to assume Judge Barker would not have further departed downward had she been viewing the correct guideline range as 151-188 months, and would still have imposed the 180 month sentence.

The fifteen year sentences of Lemons and Kraus are AFFIRMED.