Unpublished Disposition, 917 F.2d 567 (9th Cir. 1990)

MEMORANDUM^* 

Defendant appeals his sentence for attempted possession of cocaine and use of a firearm. He pled guilty to participating in a transaction involving 5 kilograms of cocaine. As part of the plea bargain, the government agreed not to charge or prosecute him for any other drug-related crimes. At sentencing, the district court considered transactions involving 15 kilograms of cocaine defendant sold in prior years as relevant conduct in determining his base offense level. Defendant argues that the district court's consideration of transactions involving the 15 kilograms was improper because the transactions were not relevant conduct, and because it violated the plea agreement.

Sentencing Guideline 1B1.3(a) (2) states that the district court shall consider as relevant conduct "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." Defendant argues that the transactions in prior years and the offense of conviction were not part of a common scheme or plan.

We need not decide whether the prior transactions were relevant conduct because defendant was not prejudiced by their consideration. At the time he entered his plea, he was told by the district court that he faced a ten year minimum sentence on the drug count. RT 9. He did plead guilty and was sentenced to 121 months (10 years and one month). He does not dispute the government's contention that this sentence would have been within the Guidelines range if only the 5 kilograms had been considered. Appellee's Brief at 7 n 3.

Defendant further argues that the sentencing court's consideration of activities outside the scope of his conviction is unconstitutional. The Supreme Court and this court have both rejected that argument. See McMillan v. Pennsylvania, 477 US 79, 92 (1986) (" [W]e have consistently approved sentencing schemes that mandate consideration of facts related to the crime, without suggesting that those facts must be proved beyond a reasonable doubt." (citation omitted)); United States v Wilson, 900 F2d 1350, 1353 (9th Cir 1990) (due process prohibits sentencing based upon materially false information, but does not require sentencing court to consider only facts proved beyond a reasonable doubt.)

The terms of defendant's plea bargain were not violated because, as promised, he was not prosecuted for any other drug-related offenses. Prosecution for an act by the government and consideration of that same act by the sentencing court are not one and the same. See United States v Ykema, 887 F2d 697, 699 (6th Cir 1989), cert denied, 110 S Ct 878 (1990).

Defendant also points out that the plea agreement was negotiated while United States v Restrepo (Restrepo I), 883 F2d 781 (1989), withdrawn 903 F2d 648 (9th Cir March 2, 1990), was the law of this circuit. When he entered his plea, defendant construed Restrepo I as precluding a sentencing judge from considering non-charged criminal conduct. Defendant argues that he detrimentally relied on this interpretation of Restrepo I and that he should be allowed to rescind the plea agreement because the law had changed materially by the time he was sentenced.

Defendant's argument might have some force if the meaning of Restrepo I had been entirely clear and the law had changed abruptly. But defendant was relying on a particular interpretation of Restrepo I, an interpretation the district court did not agree with. ER 26-27. Defendant is in the same position as someone who enters a plea bargain in reliance on what turns out to be a misinterpretation of the law. He is not entitled to rescind the agreement.

AFFIRMED.