Unpublished Disposition, 930 F.2d 29 (9th Cir. 1990)

MEMORANDUM^* 

NATURE OF THE CASE

On August 29, 1989, a Federal Grand Jury indicted Thomas Medina Padilla and Cesar Quiroz Chapa on charges of conspiracy to distribute heroin, distribution of heroin, and possession with intent to distribute heroin. Chapa pleaded guilty to count one of the indictment which charged him with conspiracy to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a) (1) and 846. On May 24, 1990 the district court sentenced Chapa to 84 months imprisonment. We affirm.

BACKGROUND

On July 18, 1989, three undercover Sacramento police officers arranged to purchase a small quantity of heroin from Marilyn Lance in central Sacramento, California. After Lance phoned telephone pager number 326-6088, Cesar Chapa and Thomas Padilla arrived in a blue Toyota Corolla, license number 643ZGX, with Padilla driving and Chapa in the passenger seat. Padilla and Chapa delivered 0.39 grams of black tar heroin to Lance who then sold it to the agents.

On August 3, 1989, Lance phoned the same number; this time Padilla and Chapa arrived in a blue Chevrolet, license number 1CLX109, and delivered 0.92 grams of heroin to Lance who again sold it to an undercover agent. Lance also agreed to introduce the agent to her suppliers who were, according to Lance, major dealers with the best heroin in town.

The next day Lance gave the pager number to an undercover officer and instructed him how to order heroin. Lance then phoned the number and allowed the agent to talk to her supplier and order some heroin. Padilla soon arrived, by himself, in the blue Chevrolet and delivered 0.51 grams of heroin to the agent. Later that evening police again phoned the number and requested one gram of heroin; a short time later Chapa and Padilla arrived in the blue Chevrolet. An undercover officer handed Chapa $120 dollars; Chapa in return handed the officer approximately one gram of black tar heroin. Chapa and Padilla then departed in the Chevrolet.

Police subsequently stopped the Chevrolet and arrested Padilla and Chapa. Police found in the car nine grams of heroin, $776 dollars in cash, $120 in marked funds which the agent had given Chapa for the heroin, and a telephone pager with a different number than the one the agents had been using to order heroin from Chapa and Padilla. A search of Chapa and Padilla's apartment at 2501 Edison Avenue in Sacramento turned up no additional evidence.

The manager of the apartment complex told police that as of February 9, 1989, the lessee on record for Chapa's apartment was Eduardo Lupercio. A man named Eduardo Lupercio Ramirez also was the lessee of three different apartments which were being investigated by police: apartment 172 at 2025 West El Camino Avenue; apartment 184 at 1100 Howe Avenue; and apartment 217 at 2355 Oak Harbor Way.

As a result of a information gathered in a different investigation, Sacramento police obtained a search warrant for apartment 172 at 2025 West El Camino Avenue. On August 8, 1989, police served the warrant and arrested a man named Gabriel Rodriguez inside; Rodriguez was carrying a card bearing the address of the Howe Avenue apartment. In the search of the West El Camino apartment police seized 180 grams of heroin and two Ohaus scales. Police searched Rodriguez's white Ford Fiesta which was parked in the stall assigned to apartment 172 and found 92 grams of black tar heroin, 79 grams of cocaine, a fully loaded semiautomatic weapon, and six loaded magazines.

Based on the information obtained in the surveillance of the West El Camino apartment, police obtained a search warrant for apartment 217 at 2355 Oak Harbor Way. Robert Garcia was arrested at apartment 217 and was found to be in possession of several pagers, one with the number 326-6088; undercover agents identified Garcia as the person they had talked to on number 326-6088, which resulted in the dispatch of Chapa and Padilla.

On April 4, 1990 Chapa and his counsel received a copy of the presentence report; on May 1, 1990 Chapa and his counsel received an amended version of the report which corrected a typographical error. Pursuant to section 1B1.3 of the Sentencing Guidelines, the report concluded that the drugs seized at the West El Camino Avenue apartment should be included in Chapa's base offense level because it was reasonably foreseeable to Chapa that these drugs were the source of the heroin he was selling. Accordingly, the report set Chapa's base offense at 30. The report assigned Chapa a criminal history category of I and recommended a two-level minor participant reduction. With an offense level of 28 and a criminal history of I, Chapa's sentencing range was set at 78 to 97 months.

At sentencing, Chapa argued that he should not be sentenced for the drugs seized after his arrest because he did not have a management position in the conspiracy and because his arrest terminated his involvement in the conspiracy. The court rejected both of these arguments and sentenced Chapa to 84 months imprisonment. Chapa filed a timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.

ANALYSIS

Chapa asserts on appeal that there are two reasons why the district court should not have utilized the drugs seized at the West El Camino apartment in calculating his base offense level: first, because his arrest constituted his effective withdrawal from the conspiracy; and second, because the district court did not find under Sec. 2D1.4 that the conduct of those in possession of the drugs at the apartment was in furtherance of the conspiracy and was known to Chapa or was reasonably foreseeable. We discuss each of these arguments in turn.

"This court reviews de novo the way in which the district court applied the Guidelines." United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990) (citation omitted). But we give "due deference to the district court's application of the guidelines to the facts," and " [w]e review the district court's findings of facts for clear error." Id. (citations omitted).

Chapa's argument that his arrest constituted an "effective withdrawal" from the conspiracy lacks merit. A " [w]ithdrawal from a conspiracy requires a disavowal of the conspiracy or an affirmative action that would have defeated the purpose of the conspiracy, or 'definite, decisive and positive' steps to show that the conspirator's disassociation from the conspiracy is sufficient." United States v. Loya, 807 F.2d 1483, 1493 (9th Cir. 1987) (quoting United States v. Smith, 623 F.2d 627, 631 (9th Cir. 1980)). Chapa's arrest was not a disavowal, an affirmative action, or a positive step on his part to disassociate himself from the conspiracy. Moreover, Chapa has provided this court with no evidence in support of his contention that he otherwise disavowed the conspiracy before the seizure of the drugs at the apartment.

C. The Amount of Drugs Included in Calculating the Offense Level

Relying on United States v. Turner, 898 F.2d 705 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990), appellant also contends the district court erred because it did not find under section 2D1.4 that the conduct of those in possession of the drugs at the West El Camino apartment "was in 'furtherance of the conspiracy [and] was known to the defendant or was reasonably foreseeable.' " Id. at 713 (citation omitted). Turner is easily distinguished.

In Turner three codefendants pled guilty to drug-trafficking charges. In sentencing one of the codefendants, Beler, the district court utilized all the drug sales made by Beler's coconspirators in calculating Beler's base level, even though Beler's presentence report clearly indicated he had withdrawn from the conspiracy before any of the sales took place. Id. When Beler was sentenced, "section 2D1.4 [made] it clear that only drug sales which were in furtherance of the conspiracy to which Beler pled guilty could be considered by the district court in sentencing Beler." Id. This court held that because Beler had clearly withdrawn from the conspiracy, the district court erred in not finding that the sales which occurred after his withdrawal were in furtherance of the conspiracy and were known to Beler or were reasonably foreseeable. Id.

In the case at bar, however, the presentence report which was adopted by the district court as being accurate found that the possession of the drugs at the West El Camino apartment by Chapa's coconspirators was conduct which Chapa "should have reasonably foreseen ... even if he did not know the extent or quantity of the available drugs." Chapa made no objection to this finding. Moreover, unlike the coconspirator in Turner, Chapa did not take the necessary steps to withdraw from the conspiracy.

The reasoning in Turner provides another basis for affirming the district court. When sentencing a coconspirator who has not withdrawn, Turner concluded that section 1B1.3(a) (2) provides the authority to aggregate "all the [drugs] involved in a [drug] distribution scheme" in determining the coconspirator's base offense level. Turner, 898 F.2d at 711. Turner 's reading of the guidelines is sound: Section 1B1.3(a) (2) explains that for a drug distribution offense, which is an offense that would require grouping of counts under Section 3D1.2(d), a defendant's base offense level is determined on the basis 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." U.S.S.G. Sec. 1B1.3(a) (2). In discussing section 1B1.3(a) (2), the background comments add that "in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." Other circuits agree that under the clear language of section 1B1.3(a) (2), all the drugs involved in a distribution scheme are to be used to calculate the offense level. E.g., United States v. Ross, 920 F.2d 1530, 1538 (10th Cir. 1990); United States v. Sleet, 893 F.2d 947, 948-49 (8th Cir. 1990); United States v. Williams, 880 F.2d 804, 805-6 (4th Cir. 1989); United States v. Sailes, 872 F.2d 735, 738 (6th Cir. 1989).

In determining Chapa's base offense level, the presentence report found that Chapa was linked to the drugs seized at the West El Camino apartment. Although Chapa stated that he arrived in Sacramento on July 20, 1989, police saw him accompany Padilla in a blue Toyota, California license number 643ZGX, and deliver .39 grams of heroin the day before. The report found that " [t]his blue Toyota became a primary link between the defendant and Robert Garcia and the West El Camino Avenue address." Again, Chapa did not dispute the accuracy of this finding at sentencing. Based on this linkage and other facts, the report concluded that the drugs seized at the West El Camino apartment were part of the "entire amount of controlled substance involved in this offense." Accordingly, the report concluded that these drugs should be used in calculating Chapa's base offense level. There is no error in this straightforward application of the guidelines.

AFFIRMED