United States of America, Plaintiff-appellee, v. Walter Irvin; Michael L. Schumacher, Defendants-appellants.united States of America, Plaintiff-appellant, v. Santiago Gonzales; Walter Irvin; Michael L. Schumacher,defendants-appellees.united States of America, Plaintiff-appellee, v. Santiago Gonzales, Defendant-appellant, 2 F.3d 72 (4th Cir. 1993)

Walter D. Irvin and Michael L. Schumacher challenge their convictions and sentences for conspiracy to distribute and conspiracy to possess with the intent to distribute cocaine and marijuana, see 21 U.S.C.A. Sec. 841(a) (1) (West 1981); 21 U.S.C.A. Secs. 846, 841(b) (1) (A) (ii) (II), 841(b) (1) (B) (vii) (West 1981 & Supp.1993), and conspiracy to import controlled substances into the United States, see 21 U.S.C.A. Secs. 846, 952 (West 1981 & Supp.1993). Santiago Gonzales contests his conviction and sentence for conspiracy to distribute and conspiracy to possess with the intent to distribute cocaine. See 21 U.S.C.A. Secs. 846, 841(a) (1), 841(b) (1) (A) (ii) (II). The primary issue on appeal presented by Irvin and Schumacher is whether a district court must determine the quantity of narcotics reasonably foreseeable to each individual coconspirator prior to a determination of the applicability of the mandatory minimum sentencing provisions of Sec. 841(b). We hold that it must, and because the district court did not make this determination of reasonable foreseeability before application of the statute, we vacate the sentences imposed on Irvin and Schumacher pursuant to Sec. 841(b).

As an alternative to the mandatory minimum sentences, the district court imposed sentences on Irvin and Schumacher pursuant to the sentencing guidelines. We find no error with these sentences, and therefore affirm the sentences imposed on this basis. Further, we find no error with the guideline sentence imposed on Gonzales; accordingly, we also affirm his sentence. Because the alleged trial errors raised by all three Appellants are without merit, we affirm their convictions.

A grand jury returned two indictments charging Irvin, Schumacher, Gonzales, and others with involvement in a large drug importation and distribution conspiracy. Facts elicited at trial, viewed in the light most favorable to the Government, see Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942), revealed that Gonzales operated as a source of cocaine for other individuals who participated in different ways and at various levels of the conspiracy. Irvin and Schumacher worked at the retail level, with Irvin selling quantities of marijuana and Schumacher dispensing quantities of marijuana and cocaine.

Following the return of guilty verdicts,¹  a presentence report (PSR) was prepared for each coconspirator. Each PSR applied the precepts of relevant conduct²  in determining the quantity of narcotics properly attributable to each coconspirator. See United States Sentencing Commission, Guidelines Manual, Sec. 1B1.3 (Nov.1991). Gonzales' PSR recommended attribution of 5 to 15 kilograms of cocaine to him, see U.S.S.G. Secs. 2D1.4, 2D1.1(c) (6), and a four-level enhancement for his role in the offense, see U.S.S.G. Sec. 3B1.1(a). The resulting offense level of 36, combined with a Criminal History Category of I, yielded a guideline range of 188-235 months imprisonment. The PSR noted that because of Gonzales' participation in a conspiracy involved with five or more kilograms of cocaine, he was also subject to the ten-year mandatory minimum sentence under Sec. 841(b).

Irvin's PSR recommended attribution of 5.58 kilograms of marijuana to him, resulting in a base offense level of 14. See U.S.S.G. Secs. 2D1.4, 2D1.1(c) (15). Combined with a Criminal History Category of II, Irvin's guideline range was 18-24 months imprisonment. Schumacher's PSR recommended attribution of 700 grams of cocaine and 79 kilograms of marijuana to him, resulting in a base offense level of 26. See U.S.S.G. Secs. 2D1.4, 2D1.1(c) (9). Combined with a Criminal History Category of III, the resulting guideline range was 78-97 months imprisonment.

At sentencing, the district court observed that Gonzales' guideline range exceeded the statutory mandatory minimum sentence of ten years imprisonment mandated by Sec. 841(b). Consequently, it imposed a guideline sentence of 200 months imprisonment. With regard to Irvin and Schumacher, the Government argued that, due to their convictions on the conspiracy count, both also were subject to the ten-year mandatory minimum sentencing provision of Sec. 841(b). The district court found that the conspiracy as a whole was responsible for distribution of at least five kilograms of cocaine. In the event that the statute required imposition of the mandatory minimum sentence regardless of whether the quantity of narcotics attributed to the conspiracy as a whole was reasonably foreseeable to an individual coconspirator, the district court imposed a mandatory minimum sentence of ten years imprisonment on both Irvin and Schumacher. In the alternative, the court, after adopting the recommendations in the PSRs, imposed sentences under the sentencing guidelines: Irvin received a sentence of 24 months imprisonment and Schumacher received a sentence of 88 months imprisonment.

Section 846 provides that " [a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the ... object of the attempt or conspiracy." 21 U.S.C.A. Sec. 846.³  Here, the "object" of the conspiracy was possession with the intent to distribute and distribution of narcotics. See 21 U.S.C.A. Sec. 841(a) (1). Section 841(b) sets forth the penalties for these offenses, providing mandatory minimum sentences based on the quantity of narcotics "involv [ed]" in the object offense. 21 U.S.C.A. Sec. 841(b).⁴  Thus, the penalties established under Sec. 841(b) apply with equal force to attempts and conspiracies to violate the object offenses set forth in Sec. 841(a). See, e.g., United States v. Gilliam, 987 F.2d 1009, 1011 n. 2 (4th Cir. 1993) (noting that Congress amended Sec. 846 "to subject those who violate [this] section to the same penalties as those prescribed for the underlying offense"); United States v. Montoya, 891 F.2d 1273, 1293 n. 25 (7th Cir. 1989) (same). Because the quantity of narcotics is not an element of the offenses proscribed by Sec. 841(a), United States v. Uwaeme, 975 F.2d 1016, 1018 (4th Cir. 1992), in order to apply Sec. 841(b), a district court must determine the appropriate quantity of narcotics at sentencing by a preponderance of the evidence, United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).

As we have recognized, Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), controls questions of an individual defendant's criminal liability for acts done by others in furtherance of conspiratorial activity. E.g., United States v. Cummings, 937 F.2d 941, 944 (4th Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 395, 116 L. Ed. 2d 345 (1991). Under Pinkerton, in order to hold a coconspirator criminally liable for acts of other members of the conspiracy, the act must be "done in furtherance of the conspiracy" and "be reasonably foreseen as a necessary or natural consequence of the" conspiracy. Pinkerton, 328 U.S. at 647-48, 66 S. Ct. at 1184; see also Cummings, 937 F.2d at 944 (noting that Pinkerton "makes conspirators liable for all reasonably foreseeable acts of their coconspirators done in furtherance of the conspiracy"). In order to be reasonably foreseeable to another member of the criminal organization, and thus to hold a coconspirator criminally liable, acts of a coconspirator "must fall within the scope of the agreement between the" specific individual and the coconspirator. United States v. Jones, 965 F.2d 1507, 1517 (8th Cir.), cert. denied, --- U.S. ----, 113 S. Ct. 346, 121 L. Ed. 2d 261 (1992). The issue Irvin and Schumacher ask us to resolve is whether, in arriving at the proper quantity of narcotics for purposes of sentencing under Sec. 841(b) following a finding of guilt for a violation of Sec. 846, a district court must apply the principles of Pinkerton to determine the quantity of narcotics reasonably foreseeable to an individual coconspirator, rather than automatically rely on the quantity attributed to the conspiracy as a whole. They argue that in some cases the quantity attributed to the conspiracy as a whole properly may be attributed to an individual coconspirator, but that in other cases, the quantity properly attributed to an individual coconspirator may be less than that attributed to the entire conspiracy.

To support its conclusion that a standard of reasonable foreseeability has no role in interpretation or application of Sec. 841(b) following a finding of guilt under Sec. 846, the Government contends that the plain language of Sec. 846, which provides that the district court "shall" impose the "same penalties," requires that a district court apply Sec. 841(b) without any intervening assessment of whether the acts of other coconspirators were reasonably foreseeable. The Government also maintains that introduction of the principles of Pinkerton into Sec. 841(b) would impermissibly individualize sentences for conspiracy offenses by focusing on the acts of the individual coconspirator and the acts of others reasonably foreseeable to him, rather than on the existence of the criminal organization as a whole. For the reasons that follow, we disagree that these assertions support the position that the Government urges.

Construction of a criminal penalty provision requires exercise of plenary review, United States v. Hall, 972 F.2d 67, 69 (4th Cir. 1992), and "must begin with the language of the statute," United States v. Sheek, 990 F.2d 150, 152 (4th Cir. 1993). Absent ambiguity, a "court should not look beyond that language." Id. at 152-53; cf. United States v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 2527, 69 L. Ed. 2d 246 (1981) (noting that court must accord words of statute their common and ordinary meaning unless ambiguous). If ambiguity is found in the statute, resort to the legislative history is proper. Cf. Sheek, 990 F.2d at 152 (noting that "court should not look beyond" language of statute "unless there is ambiguity").

As noted previously, Sec. 846 provides that " [a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those" set forth for the object offenses. 21 U.S.C.A. Sec. 846. The Government argues that the common and ordinary meaning of this phrase, when read in conjunction with the sentencing provisions of Sec. 841(b), requires a district court to apply the mandatory minimum sentence set forth in Sec. 841(b) corresponding to the aggregate quantity of narcotics involved in the conspiracy. Thus, according to the Government, in a narcotics conspiracy comprised of different individuals and multiple criminal acts, a district court must determine the applicable sentence by ascertaining the quantity of narcotics involved in each object offense of the conspiracy, aggregate these amounts, and then assign to each coconspirator the mandatory minimum sentence of Sec. 841(b) corresponding to the aggregated quantity of narcotics.⁵ 

While we agree with the Government that its construction of Secs. 846 and 841(b) is plausible, we do not find the statutory language of these sections so obviously supportive of this interpretation alone.⁶  Under another logical reading of the statutory language, the sentencing provisions applicable to conspiracies involving multiple narcotics should be individualized to reflect a particular coconspirator's relative culpability in the conspiracy. In other words, the statutes require a district court to determine the accountability of each coconspirator for each object offense and the quantity of narcotics involved in each object offense using the principles of Pinkerton. Next, a district court would aggregate the quantities attributed to each coconspirator, and then apply Sec. 841(b). Thus, because the relevant statutory language is susceptible to interpretations other than the one suggested by the Government and is therefore ambiguous, we turn to the legislative history for assistance in ascertaining the intent of Congress.

An examination of the legislative history of Sec. 846 leads us to conclude that the most reasonable interpretation of the relevant statutory provisions requires a sentencing court to assess the quantity of narcotics attributable to each coconspirator by relying on the principles set forth in Pinkerton. Cf. United States v. Martinez, 987 F.2d 920, 925 (2d Cir. 1993) (holding that a standard of reasonable foreseeability must be applied to determine applicability of Sec. 841(b) for each coconspirator and reasoning that "there is nothing to indicate that Congress intended to abandon the theory of conspiratorial liability that has descended from Pinkerton");⁷  United States v. Bush, 813 F. Supp. 1175, 1180 (E.D. Va. 1993) (holding that if district court finds that defendant "could have reasonably foreseen involvement with only a smaller quantity of a controlled substance than that alleged in the [conspiracy] charge, the Court need not impose a statutory minimum sentence"). The legislative history indicates that Congress intended not to increase exposure for criminal punishment beyond that already available, but "to synchronize the penalties for conspiracies and their underlying offenses ... [by] ensur [ing] that a defendant who is charged with only conspiracy not be in a better position for sentencing than one who is charged solely with possession of the same amount of narcotics." Martinez, 987 F.2d at 925 (interpreting statement by Senator Biden that the amendment "make [s] clear that any penalty that may be imposed for a substantive drug offense may be imposed for an attempt or conspiracy to commit that offense") (citation omitted). Indeed, contrary to the assertion by the Government that the plain language mandates imposition of the same mandatory minimum sentence for each member of the conspiracy, "there is nothing in the legislative history to indicate that Congress intended the revision to expand the accountability of defendants beyond their substantive offenses," or that Congress sought to reject application of a standard of reasonable foreseeability. Id. We conclude that, had Congress so resolved, such an "intent would surely have been clearly expressed." Id. at 926. Moreover, requiring application of a standard of reasonable foreseeability under Sec. 841(b) is not inconsistent with Sec. 846 because, as noted previously, Sec. 846 does no more than mandate application of the same penalty as that imposed for the object offense. See id. at 926.

Although not controlling of our decision, we find support for our interpretation of Secs. 841(b) and 846 in the sentencing guidelines. Under the guidelines, a coconspirator is held accountable for the quantity of drugs reasonably foreseeable to him within the scope of his unlawful agreement. See Gilliam, 987 F.2d at 1012-13. This incorporates the concept of reasonable foreseeability as described in Pinkerton. See, e.g., United States v. Tisdale, 952 F.2d 934, 938 (6th Cir. 1992) (noting that the "concept [of Pinkerton ] unquestionably applies to" the guidelines); United States v. LaFraugh, 893 F.2d 314, 317 (11th Cir.) ("hold [ing] that the standards embodied in section 1B1.3 roughly approximate those detailed ... in Pinkerton"), cert. denied, 496 U.S. 911, 110 S. Ct. 2601, 110 L. Ed. 2d 281 (1990). This approach allows a sentencing court to differentiate, for sentencing purposes, among degrees of culpability of coconspirators even though all are convicted of the same statutory offense. See Gilliam, 987 F.2d at 1013. Thus, we join several other circuits that have concluded that the Pinkerton principles as detailed in the relevant conduct guideline, U.S.S.G. Sec. 1B1.3, determine the application of Sec. 841(b) for a defendant who has been convicted of Sec. 846.⁸  See Martinez, 987 F.2d at 925-26; United States v. Young, 997 F.2d 1204, 1209-11 (7th Cir. 1993); cf. United States v. Becerra, 992 F.2d 960, 967 & n. 2 (9th Cir. 1993) (rejecting the contention that "sentencing under the statutory mandatory minimums should differ" from the guidelines and opining that on remand, standard of reasonable foreseeability must be applied under Secs. 841(b) and 846); Jones, 965 F.2d at 1517 (holding that the standards for determining quantity under the sentencing guidelines apply to determining quantity under Secs. 841(b) and 846).⁹ 

In interpreting pronouncements of Congress, the courts must endeavor to be true to the legislative mandate. Recognizing this obligation, we take notice of the fact that the guidelines were created pursuant to the Sentencing Reform Act of 1984, 28 U.S.C.A. Secs. 991-998 (West Supp.1993), and that the individual guidelines, including the reasonable foreseeability test as set forth in the relevant conduct section, have been accepted by Congress.¹⁰  Thus, two distinct congressionally approved sentencing schemes, the mandatory minimum approach and the sentencing guidelines, are presently in place, two schemes that should be reconciled to the extent legitimate and practical.

We conclude that in order to apply Sec. 841(b) properly, a district court must first apply the principles of Pinkerton as set forth in the relevant conduct section of the sentencing guidelines, U.S.S.G. Sec. 1B1.3, to determine the quantity of narcotics reasonably foreseeable to each coconspirator within the scope of his agreement. If that amount satisfies the quantity indicated in Sec. 841(b), the district court must impose the mandatory minimum sentence absent a higher sentencing range resulting from application of the sentencing guidelines. If the quantity is less than that set forth in Sec. 841(b), the statutory mandatory minimum sentencing provision would not apply. Here, the district court erred in failing to determine the quantity of narcotics reasonably foreseeable to Irvin and Schumacher within the scope of their agreements prior to imposing the mandatory minimum sentences. Thus, we vacate their sentences imposed under Sec. 841(b). However, the district court correctly sentenced Irvin and Schumacher in the alternative under the sentencing guidelines. Accordingly, we affirm the sentences imposed on them on this basis and remand with directions that the district court amend the judgments to reflect imposition of sentences under the sentencing guidelines.

Gonzales, Irvin, and Schumacher present numerous challenges to the guilt phase of their trial. All three maintain that insufficient evidence exists to support their convictions, while Irvin and Schumacher claim evidentiary errors, violations of the Speedy Trial Act, 18 U.S.C.A. Sec. 3161(h) (West 1985), and errors relating to severance and the indictments. After careful review of the record, we conclude that these contentions are without merit and do not warrant discussion.

Gonzales raises two issues pertaining to application of the sentencing guidelines. He maintains that the district court miscalculated the quantity of narcotics attributable to him and improperly added four levels to his base offense level for his role in the offense. Again, our review of the record indicates that these contentions are without merit.

Accordingly, we affirm the convictions of all three Appellants. We also affirm the sentences imposed on them pursuant to the sentencing guidelines. Because we vacate the sentences imposed on Irvin and Schumacher pursuant to Sec. 841(b), we remand with directions to the district court to amend the judgments accordingly.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS TO AMEND THE JUDGMENTS.