United States of America, Plaintiff-appellee, v. Craig Von Mitchell, Defendant-appellant, 977 F.2d 593 (9th Cir. 1993)

MEMORANDUM^** 

Craig Von Mitchell appeals his eighteen month sentence for violating 21 U.S.C. §§ 331(a) and 333(b), and 18 U.S.C. § 2, by introducing misbranded steroids into interstate commerce and aiding and abetting. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

During a two year period, Mitchell and others smuggled thousands of misbranded steroids into the United States and distributed them on a nationwide basis. Mitchell subsequently plead guilty to one count of a fourteen count indictment. The district court sentenced Mitchell to eighteen months.

In United States v. Shields, 939 F.2d 780 (9th Cir. 1991), Mitchell appealed his sentence. We reversed and remanded for resentencing. The district court resentenced Mitchell to eighteen months by relying on the quantity of steroids involved in dismissed counts and the duration of Mitchell's offense. Mitchell, now on his second appeal, contends that the district court erred when it relied on these factors to determine his sentence and when it refused to sentence him under newly amended guideline § 2D1.1 ("Unlawful Manufacturing, Importing, Exporting, or Trafficking").

A. Steroids Involved in Dismissed Counts and Duration of Offense

Mitchell contends that the district court improperly recalculated his sentence when it relied on the quantity of steroids involved in dismissed counts and on the duration of his offense. Mitchell's contention lacks merit.¹ 

On Mitchell's first appeal, we held that the district court could properly consider these circumstances when determining Mitchell's sentence. Shields, 939 F.2d at 782-84. Neither controlling authority nor the facts of this case have changed since our decision in Shields. Accordingly, the district court properly calculated Mitchell's sentence by relying on the quantity of steroids involved in dismissed counts and on the duration of Mitchell's offense when departing upward from § 2N2.1 ("Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product"), using § 2F1.1 as a guide.² 

Mitchell also contends that the district court erred by refusing to sentence him under newly amended § 2D1.1. Mitchell fails to realize, however, that the district court could have imposed an eighteen month sentence under § 2D1.1 as well. It could have departed upward based on the quantity of steroids involved in dismissed counts and the duration of Mitchell's offense. See United States v. Restrepo, 903 F.2d 648, 653 (1990) (district court properly relied on quantity of drugs not included in count of conviction when determining base offense level under § 2D1.1), withdrawn in part on other grounds, 946 F.2d 654 (9th Cir. 1991) (en banc), cert. denied, --- U.S. ----, 112 S. Ct. 1564 (1992); see also Guidelines Manual § 1B1.4 at 1.20 (1988) (in deciding whether to depart, sentencing judge may consider any information concerning the conduct of the defendant).

Because the district court could have sentenced Mitchell to eighteen months under § 2D1.1, we need not decide whether its refusal to use § 2D1.1 was improper.

AFFIRMED.

ORDER

Jan. 25, 1993.

The memorandum disposition filed on October 19, 1992 is hereby withdrawn. A new opinion will be filed in its place.