Unpublished Disposition, 912 F.2d 470 (9th Cir. 1990)

MEMORANDUM^* 

OVERVIEW

Appellant/defendant Jones appeals his sentence under the Sentencing Guidelines. Jones pled to one count of distribution of cocaine. He was sentenced on the basis of a conspiracy for which he was not convicted. Jones argues that he should have been permitted an evidentiary hearing to determine whether his conduct was part of the same scheme or plan as his co-defendant's conduct. We agree and remand for an evidentiary hearing.

FACTUAL AND PROCEDURAL HISTORY

During the summer of 1988, the government conducted a

narcotics investigation in conjunction with a confidential

informant who claimed that Douglas Zibell was a

multi-kilogram supplier of cocaine. The informant owed

Zibell money. In August 1988 the informant claimed that

Zibell ordered him to pay the past debt to Zibell through

appellant/defendant Bruce W. Jones who allegedly worked for

Zibell. On August 25, 1988 the informant met with Jones who

delivered one ounce of cocaine in exchange for $800.00. On

September 8, 1988 Zibell met with the informant and agreed

that the informant would work off more of his debt through

cocaine sales. Zibell then contacted his source and

arranged a shipment. Zibell delivered 620.3 grams of

cocaine to informant that same day.

Pursuant to this investigation, the government indicated six

co-defendants in an indictment containing seven counts all

relating to cocaine distribution. Jones was indicted on the

first three counts. Count I charged appellant, among

others, with conspiracy to distribute cocaine. Jones and

Zibell were charged in Count II with distributing one ounce

of cocaine on August 25, 1988 and charged in Count III,

along with others, of distribution of over 500 grams of

cocaine on September 8, 1988. Jones agreed to plead guilty

to a superseding information charging him only with the

distribution of one ounce on August 25.

At the sentencing hearing Jones was informed that in

determining his sentence the court would consider the 637

grams of cocaine that Zibell had sold to the informant which

formed the basis of Counts I and III. Jones claimed he was

not part of a conspiracy and had not known of or

participated in Zibell's September 8 drug transaction. The

court offered Jones the opportunity to withdraw his plea,

which he accepted.

A month later Jones again appeared in court to plead guilty.

As a part of the new plea agreement the government had

agreed that an evidentiary hearing could be held to

determine whether Jones was connected to the September 8

transaction involving Zibell. The court rejected this

agreement and stated that it did not intend to hold an

evidentiary hearing.

Two months later the appellant reappeared in district court

and entered a guilty plea to a one count information

charging him with distribution of one ounce of cocaine on

August 25, 1988. At the sentencing hearing appellant again

argued that he was not responsible for the drugs in the

dismissed counts. He repeatedly requested an evidentiary

hearing. The district court refused to grant an evidentiary

hearing and sentenced defendant based on the amount of

cocaine distributed by Zibell. Jones timely appeals his sentence.

"This court reviews the denial of an evidentiary hearing for an abuse of discretion." United States v. Packwood, 848 F.2d 1009, 1010 (9th Cir. 1988). We review de novo the district court's interpretation of the Sentencing Guidelines. United State v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990).

DISCUSSION

It is clear in the Ninth Circuit that in a drug case a defendant can be sentenced on the basis of co-conspirator's conduct. "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. at 4501 (9th Circuit, May 8, 1990) (internal quotations omitted); United States v. Avila, No. 89-10390, slip op. at 5907-08 (9th Cir., June 8, 1990). Thus, if Jones' distribution of one ounce of cocaine on August 25 was part of the same scheme or plan as the September 8 sale by Zibell, Jones can properly be sentenced on the basis of the drugs distributed by Zibell. The main issue in this appeal is whether the court should have held an evidentiary hearing to determine whether there was a common plan.

Jones claims he was entitled to an evidentiary hearing because he disagrees with the government's assertion that the conspiracy described in counts I and III was part of the same scheme or plan as his August 25 sale of one ounce.

The Sentencing Guidelines require that " [w]hen any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor." U.S.S.G. Sec. 6A1.3. The accompanying Commentary states that

[a]lthough lengthy sentencing hearings should seldom be necessary, disputes about sentencing factors must be resolved with care. When a reasonable dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate opportunity to present relevant information. Written statements of counsel or affidavits of witnesses may be adequate under many circumstances. An evidentiary hearing may sometimes be the only reliable way to resolve disputed issues.

This court has held that "where sworn statements and exhibits present directly contradictory accounts of events, a hearing is required." Packwood, 848 F.2d at 1010.

The government claims that no hearing was necessary because there is no factual dispute. In the presentence report and at the sentencing hearing, the government alleged that Jones' distribution of one ounce was part of a scheme between Jones, Zibell and the informant to pay off the informant's debts to Zibell. According to the government, the September 8 sale of 637.5 grams was just another transaction to pay off the debt. The government does not dispute the defendant's assertion that he did not know about or participate in the September 8 cocaine transaction. The only dispute, according to the government, is whether these allegedly uncontroverted facts constitute the same scheme or plan under the guidelines, a legal question.¹ 

Jones claims that there is a factual dispute as to his involvement in the larger drug scheme alleged in counts I and III. He argues that he was not a participant in the conspiracy. Jones pled only to "knowingly and intentionally [ ] distribut [ing] a mixture and substance containing cocaine."²  He stated at the sentencing hearing that he was not involved in the conspiracy. (Transcript of Sentencing at 11-12, 14-15). Additionally, in the sentencing hearing he told the court, "Your Honor, after I made the delivery, I told the other people I wanted nothing more to do with this, I refused to return their phone calls or answer my phone, and that's why the informant had to go right straight to Mr. Zibell." (Transcript of Sentencing at 14). Jones' sworn statement to the probation officer and the court also indicated that after the August 25 transaction, he had told Zibell that he "didn't want anymore to do with this." (Statement of Bruce Jones at 5). In his statement, he also claims that it was the last time he heard from Zibell.

Whether an issue is one of fact or law is seldom clear; a little rephrasing can always turn the tables. However, in the instant case, we find that a factual dispute does exist. We would agree with the government that it would be strictly a question of law if Jones were simply arguing that under the facts in the presentence report he was not part of a common scheme or plan. It is true that Jones is arguing that the evidence in the presentence report does not constitute a common scheme or plan; however he also is arguing that the presentence report's implied inclusion of him in the larger drug deal was incorrect. As a matter of fact, Jones is arguing, he was not a part of any larger scheme; he simply distributed one ounce of cocaine and then refused to distribute anything more.

From the transcripts it appears that the district judge refused to hold a hearing for two reasons. First he believed that there was no factual dispute because the existence of a conspiracy and amount of drugs charged in the indictment were undisputed. The court apparently believed that if the defendant was charged he could be sentenced on that basis. While dropped counts in an indictment are relevant in sentencing, United States v. Monaco, 852 F.2d 1143, 1149 (9th Cir. 1988), merely charging a defendant with a crime is not enough to sentence. To raise the offense level the government must prove by a preponderance of the evidence that the drugs involved in counts I and III were part of a common scheme in which Jones participated. See Avila, slip op. at 5903. Simply charging a defendant cannot relieve the government of its burden of proof. Thus, the district court erred in relying on the indictment as proof of a common scheme when the underlying basis of that indictment was challenged.

The district judge also refused to hold a hearing because he felt it would require the same amount of effort as trying the conspiracy counts. We are not convinced that the evidentiary hearing necessarily would have to be of the same scope as a trial. The court could determine what Jones knew, what actions he took and whether he had affirmatively disassociated himself from the conspiracy with the aid of only a few witnesses. More importantly, however, even if the district court is correct and the evidentiary hearing would be lengthy, that cannot be a legitimate reason to prohibit a defendant from challenging the facts underlying his sentence.

Accordingly, we find that it was an abuse of the district court's discretion not to grant an evidentiary hearing because a genuine factual dispute exists and the court stated no legitimate reason for denying the hearing.

Additionally, we find that the court violated Rule 32 of the Federal Rules of Criminal Procedure. Although the district court sentenced Jones based on the drugs distributed by Zibell, it made no finding that Jones was involved in the common scheme described in counts I and III of the indictment; instead, the court simply relied on the fact that Jones initially had been indicted on those counts.

The Guidelines provide that all disputed sentencing factors are to be resolved in accordance with Rule 32. See United States v. Jones, No. 89-50379, slip op. at 7150, (9th Cir., July 12, 1990). Rule 32(c) (3) (D) requires that if the defendant alleges any factual inaccuracy in the presentence report that court shall "make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing." Fed. R. Crim. P. 32(c) (3) (D). "When a defendant challenges the factual accuracy of a presentence report, strict compliance with the Rule is required. Jones, slip op. at 7150. In the instant case, the trial court made no findings or a determination that no findings were necessary. Upon remand, the court must make specific findings as to all disputed allegations concerning sentencing.

For the foregoing reasons, we vacate the sentence and remand for an evidentiary hearing on Jones' involvement in the conspiracy,³  and for resentencing.

SENTENCE VACATED; REMANDED FOR EVIDENTIARY HEARING AND SENTENCING.