Unpublished Disposition, 911 F.2d 740 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 911 F.2d 740 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.John Albert SHOPE, Defendant-Appellant.

No. 89-30080.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1990.Decided Aug. 15, 1990.

Before EUGENE A. WRIGHT, TANG and CANBY, Circuit Judges.


MEMORANDUM* 

John Shope appeals his sentence of 188 months for possession of two pounds of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). He claims that the district court improperly increased his sentence by considering a quantity of drugs not involved in the conviction. We affirm.

FACTS

Shope was arrested during the execution of a search warrant at his mother's home. Results of that search led police to a safe at the home of Tammy Moore. Moore testified that Shope left the safe at her home and that only he had access to it.

After being advised of his Miranda rights, Shope told the police that the safe contained about twenty pounds of "crack," and provided the combination to the safe. Police found about twenty pounds (9.07 KG) of methamphetamine in the safe.

Shope was indicted on five counts of distribution of methamphetamine and cocaine, but no count included the drugs found in the safe. Pursuant to a plea agreement, Shope pled guilty to possession of approximately two pounds (.907 KG) of methamphetamine with intent to distribute, and the other counts were dismissed. The probation officer determined that Shope was responsible for 9.52 KG of methamphetamine.1  Over a defense objection, the district court included drugs not part of Shope's conviction in the computation of his base offense level, and sentenced Shope to 188 months.2  Shope appeals his sentence.

DISCUSSION

"We review the district court's interpretation of the guidelines de novo, and its factual findings underlying the sentence for clear error." United States v. Pemberton, No. 89-10341, slip. op. 5471, 5474 (9th Cir. May 31, 1990) (citing United States v. Restrepo, 884 F.2d 1294 (9th Cir. 1989)).

Shope contends that the district court erred when it considered drugs not included in his indictment in computing his sentence. We disagree. "Amounts of drugs calculated on the basis of conduct of 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' may properly be used to adjust the offense level." United States v. Restrepo, No. 88-3207, slip op. 4491, 4501 (9th Cir. May 8, 1990); see also U.S.S.G. Secs. 1B1.3(a) (2).

Evidence available to the sentencing judge strongly supports his determination that Shope possessed at least 9.52 KG of methamphetamine. Police found about 20 pounds of methamphetamine in a safe to which only Shope had access. This evidence would convince a reasonable person that the drugs in the safe and the drugs involved in Shope's conviction were part of a common scheme by Shope to sell methamphetamine. See United States v. Restrepo, slip op. at 4505 (relevant conduct must be proven by a preponderance of the evidence, "a sufficient weight of evidence to convince a reasonable person").

Shope also contends that his self-incriminating statements cannot be used to increase his sentence. The guidelines provide that self-incriminating information cannot determine a guideline range " [w]here a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others and the government agrees that self-incriminating information so provided will not be used against the defendant." U.S.S.G. Sec. 1B1.8 (emphasis added). Shope does not point to any promise or agreement by the government with regard to his self-incriminating statements. His plea agreement says nothing about the statements.3  Shope made the statements about the drugs in the safe after being advised of his constitutional rights, and he claims no Miranda violation. We conclude that Shope has not shown error in the use of his statements.

Finally, Shope contends that the district court erred by failing to depart downward for substantial assistance to authorities, pursuant to Sec. 5K1.1. We note that the government did not make, nor did it promise to make, the motion required for a Sec. 5K1.1 departure. Even had the government requested a departure, " [a] district court's discretionary decision not to depart downward from the guidelines is not subject to review on appeal." United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990).

CONCLUSION

The district court did not err in computing Shope's base offense level using a quantity of drugs for which he was not charged or convicted, nor did it err by using Shope's self-incriminating statements to increase his sentence. We cannot review the district court's failure to depart from the guidelines.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

It is not clear how the probation officer arrived at this figure. The two pounds (.907 KG) involved in Shope's conviction and the twenty pounds (9.07 KG) found in the safe total more than 9.52 KG. At trial, Shope did not object to the mathematical computations, perhaps because the error, if any, was in his favor. The probation officer also determined that Shope was responsible for a one ounce sale of methamphetamine on 12-8-87, and sales he arranged for one-half pound on 1-7-88 and one-quarter pound on 1-14-88

 2

Shope was granted a two level adjustment upward for his managing role in the offense and a two level adjustment downward for acceptance of responsibility. The district court accepted the probation officer's recommendation of a base offense level of 34, for 3 to 10 KG of methamphetamine. The guideline range was 188 to 235 months

 3

The government promised to dismiss certain counts unrelated to the drugs in the safe and to recommend a sentence at the low end of the range

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