Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

MEMORANDUM^** 

William Stanley Stewart appeals his sentence, following the denial of his motion to correct his sentence pursuant to Fed. R. Crim. P. 35(a). Stewart was convicted by a jury for, inter alia, conspiracy to distribute LSD and conspiracy to distribute cocaine. This court affirmed his convictions, but vacated his sentence and remanded for resentencing. United States v. Stewart, 770 F.2d 825 (9th Cir. 1985) (Stewart I), cert. denied, 474 U.S. 1103 (1986). Stewart was resentenced and this court affirmed his sentence. United States v. Stewart, 799 F.2d 580 (9th Cir. 1986) (Stewart II) .

Stewart contends that his convictions for two counts of conspiracy should not have been the subject of separate consecutive punishments because only a single conspiracy was committed. We disagree and affirm.

The government proved and we affirmed the sufficiency of the evidence to convict Stewart of one conspiracy to distribute cocaine and another to distribute LSD. Stewart I, 770 F.2d at 831-32. Because sufficient evidence supported each of Stewart's conspiracy convictions, separate sentences were appropriate. See United States v. Richardson, 588 F.2d 1235, 1240-41 (9th Cir. 1978) (separate sentences for separate conspiracies is appropriate), cert. denied, 441 U.S. 931 (1979); see also United States v. Guzman, 852 F.2d 1117, 1121 (9th Cir. 1988) (some relationship between distinct conspiracies does not per se merge the conspiracies into a single criminal enterprise). Moreover, independent of our analysis in our earlier opinion, we conclude that the evidence was sufficient to support conviction on two conspiracy counts. Since two separate transactions involving different substances were contemplated, United States v. Palafox, 764 F.2d 558 (9th Cir. 1985) (en banc) is inapposite.

Additionally, although the district court could have used its discretion to impose concurrent sentences, Stewart's separate criminal conspiracies are subject to consecutive penalties. See Richardson, 588 F.2d at 1240-41. We hold that the district court did not abuse its discretion by sentencing Stewart to consecutive terms of imprisonment for the two separate conspiracies. See id.

AFFIRMED.