Unpublished Disposition, 907 F.2d 155 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 155 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.David Joseph BROWN, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Douglas G. HOUSLEY, Defendant-Appellant.

Nos. 88-1353, 89-10070 and 89-10406.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted as to No. 88-1353 Dec. 12, 1989.Submitted as to No. 89-10070 Dec. 12, 1989 and asto No. 89-10406 April 12, 1990.* Decided July 11, 1990.

Before CYNTHIA HOLCOMB HALL, BRUNETTI and NOONAN, Circuit Judges.


MEMORANDUM** 

Appellants David Joseph Brown and Douglas Gary Housley each

appeal from the district court's denial of their respective

motions under Fed. R. Crim. P. 35 for correction of illegal

sentence. This court has jurisdiction pursuant to 28 U.S.C.

Sec. 1291. We affirm in part and remand.

On May 13, 1986, a Federal Grand Jury returned an eleven-count indictment against Brown, Housley, and another co-defendant, Michael Warrenburg. Brown and Housley were each charged with conspiracy to manufacture and distribute a controlled substance, namely methamphetamine (count II), and an attempt to manufacture methamphetamine (count III), both in violation of 21 U.S.C. §§ 841(a) (1) and 846. The indictment alleged that the conspiracy began in 1980 and continued until January 8, 1986 (when it was discovered); it further alleged that the attempt to manufacture methamphetamine occurred on or about January 8, 1986. Both Brown and Housley were further charged with the manufacture of methamphetamine (count IV) and the distribution of methamphetamine (counts X and XI), all in violation of 21 U.S.C. § 841(a) (1). Housley was further charged with running a Continuing Criminal Enterprise (CCE) in violation of 21 U.S.C. § 848 (count I), and being a felon in possession of a weapon in violation of 18 U.S.C. app. 1202(a) (1) (counts V and VI).

Following a ten-day trial, the jury found Brown guilty of both the conspiracy (count II) and the attempt (count III) charges. Brown was found not guilty of manufacture of methamphetamine and distribution of methamphetamine. On September 10, 1986, the district court sentenced Brown to five years for the attempt and four years for the conspiracy, the two sentences to run consecutively.

The jury found Housley guilty of all the above-mentioned charges. On September 8, 1986, the district court imposed sentence on Housley as follows:

Group A1  Count I 20 years

Group B Count II 20 years

Count III 20 years

Group C Count IV 20 years

Count X 20 years

Count XI 20 years

The sentences within each "Group" were to run concurrent with one another. The sentences in "Group B" were to run consecutive to count I, while the sentences in "Group C" were to run consecutive to counts II and III, resulting in a total sentence of 60 years.

Brown and Housley each subsequently filed motions for correction of illegal sentence pursuant to Fed. R. Crim. P. 35. On August 24, 1988, the district court denied Brown's motion. On January 18, 1989, the district court issued an order ruling on a portion of Housley's motion, granting in part and denying in part the relief sought therein. Specifically, the district court amended the sentencing scheme so that the sentence for the conspiracy (count II) now runs concurrent to the sentence for the CCE (count I).2  On August 2, 1989, the district court ruled on the remaining issues raised by Housley's Rule 35 motion, again granting relief in part. The district court further amended the sentencing scheme so that the sentence for the attempt (count III) now runs concurrent to the sentence for the CCE. The resulting sentencing scheme is as follows:

Group A Count I 20 years

Count II 20 years

Count III 20 years

Group C Count IV 20 years

Count X 5 years

Count XI 20 years

Since "Group B" is now empty, the sentences in "Group C" now run consecutive to "Group A," resulting in a reduced sentence of 40 years.

Brown's appeal (No. 88-1353) from the district court's denial of his Rule 35 motion has been consolidated with Housley's appeal (No. 89-10070) from the district court's order entered January 18, 1989. In addition, Housley's motion to consolidate his appeal (No. 89-10406) from the district court's judgment entered August 2, 1989 with his previously filed appeal has been granted. Thus, the three appeals are consolidated for purposes of this decision.

While sentencing is an issue normally reserved solely for the sound discretion of the district court, United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986), the legality of a sentence is a question of law and thus is reviewed de novo. United States v. Arbelaez, 812 F.2d 530, 532 (9th Cir. 1987) (per curiam).

Brown's sole contention is that the district court imposed an illegal sentence when it imposed on him consecutive, rather than concurrent, sentences for convictions of both conspiracy and attempt under 21 U.S.C. § 846. Section 846 provides:

Any 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 offense, the commission of which was the object of the attempt or conspiracy.

Brown agrees that the rule for determining the validity of multiple sentences for violations of section 846 is that which was first suggested in United States v. Taylor, 716 F.2d 701 (9th Cir. 1983) and subsequently developed in a line of Ninth Circuit cases leading to United States v. McQuisten, 795 F.2d 858 (9th Cir. 1986). The rule, simply put, is this: "multiple punishments under section 846 are appropriate only if the defendant 'attempts or conspires' to violate the drug laws on two or more separate occasions." United States v. Touw, 769 F.2d 571, 574 (9th Cir. 1985) (citing Taylor, 716 F.2d at 713 (concurring opinion)); see also McQuisten, 795 F.2d at 868. Brown disagrees, however, with the district court's determination that the acts which formed the basis for Brown's attempt conviction were separate and distinct from the acts which formed the basis for his conspiracy conviction.

Brown concedes that there was sufficient evidence to establish that Housley and Warrenburg conspired to manufacture and distribute methamphetamine as early as 1980. Brown contends, however, that the evidence fails to establish his connection to the Housley Warrenburg conspiracy before January 8, 1986 so that, logically, the attempt to manufacture methamphetamine on January 8, 1986 must constitute the act that ties Brown to the conspiracy. Consequently, he argues, his convictions for conspiracy and attempt were based on a single course of action and therefore multiple punishment is inappropriate.

Brown's contention that the evidence fails to link him with the conspiracy until January 8, 1986 is without merit. In determining the sufficiency of the evidence, the appropriate standard of review is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988). Where, as here, the evidence establishes that a conspiracy exists, only a slight connection to the conspiracy is necessary to convict a defendant of knowing participation in it. United States v. Meyers, 847 F.2d 1408, 1413 (9th Cir. 1988); United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987). Viewing the evidence in the light most favorable to the government, the jury could have determined (on the basis of Kimberly Housley's testimony alone) that Brown knowingly participated in the conspiracy as early as 1980, when the methamphetamine lab was located on Rock Rim Road in Sonora, California.

Given Brown's early participation in the conspiracy, this case fits squarely within our decision in McQuisten, 795 F.2d at 868, that "a conspiracy followed by a later separate attempt could constitute separate punishable offenses." As was the case in McQuisten, the conspiracy here was followed by a number of separate transactions and events including the manufacture and distribution of methamphetamine and the relocation of the methamphetamine lab on three successive occasions. These transactions and events were in turn followed by the separate act of attempted manufacture of methamphetamine on or about January 8, 1986.

We thus conclude that the imposition of consecutive sentences for convictions of both conspiracy and attempt under section 846 was proper.

Housley appeals from the district court's judgments entered on January 18, 1989 and August 2, 1989 which granted in part and denied in part the relief sought under his Rule 35 motion. Housley contends that the district court erred by (1) refusing to address Housley's claim that the government presented false evidence and suppressed mitigating evidence during the sentencing process; (2) failing to vacate Housley's section 846 conspiracy conviction; and (3) failing to vacate the entire sentence and return Housley to court for resentencing.3 

In his Rule 35 motion before the district court, Housley claimed that his sentence should be vacated because the government violated Brady v. Maryland, 373 U.S. 83 (1963), in that it presented false evidence and suppressed mitigating evidence during his trial and subsequent sentencing hearing. In Brady, the Supreme Court held that it is a denial of due process for the prosecutor to fail to disclose evidence in his possession which is material to the defense. While we express no opinion on the merits of Housley's claim, we reject his contention that his claim is within the scope of a Rule 35 motion.

The purpose of a Rule 35 motion is to challenge the sentence imposed, not to review errors that occurred before sentencing. See Hill v. United States, 368 U.S. 424, 430 (1962); United States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987). A motion to correct an illegal sentence under this rule should not be confused with the procedure authorized in 28 U.S.C. § 2255. The "illegality" referred to in Rule 35 is one disclosed by the record such as a sentence in excess of statutory provision, while section 2255 covers a broader field of collateral attack upon the validity of a conviction or sentence by matters outside the record. Housley's Brady claims do not concern the legality of the sentence itself; rather, they concern alleged violations which are not disclosed by the record and which occurred, if at all, prior to sentencing. Accordingly, the district court's refusal to address itself to the merits of Housley's Brady claims was proper.

Housley next argues that the district court erred in failing to vacate Housley's conspiracy conviction. Housley was originally sentenced to consecutive 20-year terms for his convictions on count I (running a CCE, in violation of 21 U.S.C. § 848) and count II (conspiracy, in violation of 21 U.S.C. § 846). In response to Housley's Rule 35 motion, the district court amended the sentence for the section 846 conspiracy by ordering that it should run concurrent with, rather than consecutive to, the sentence for the section 848 CCE offense. Housley contends that this remedy does not go far enough and that the district court is required to vacate the section 846 conspiracy conviction.

In Jeffers v. United States, 432 U.S. 137 (1977) (plurality), cumulative punishments for conspiracy under section 846 and for CCE under section 848 were found to violate the double jeopardy clause. The majority of circuits have implemented Jeffers by requiring vacation of both the sentence and conviction for the section 846 conspiracy. See United States v. Moya-Gomez, 860 F.2d 706, 753 (7th Cir. 1988) (collecting cases). The Ninth Circuit has recently adopted the majority view. See United States v. Hernandez-Escarsega, 886 F.2d 1560, 1582 (9th Cir. 1989). Accordingly, the remedy required in the instant case is for the district court to vacate the conviction in Count II for the conspiracy in violation of section 846.4  Id.

Housley next argues that the district court erred in failing to vacate the entire sentence and return him to court for resentencing. This argument is without merit because under Rule 35 the district court's "authority to vacate and amend a sentence 'at any time' extends only to the illegal portion of the sentence, and does not empower the district court to reach legal sentences previously imposed, even when they arose out of the same criminal transaction." United States v. Minor, 846 F.2d 1184, 1188 (9th Cir. 1988); see also United States v. Jordan, 895 F.2d 512, 514-15 (9th Cir. 1989).

It is equally clear, however, that under 28 U.S.C. § 2106 the court of appeals has the authority to determine whether resentencing is appropriate.5  Jordan, 895 F.2d at 515; Minor, 846 F.2d at 1189 n. 5. Here, we have determined that Housley's conviction for conspiracy in count II must be vacated because the conspiracy merges with the CCE offense. We conclude, however, that there is no need for resentencing in this case because vacation of the conspiracy conviction will not disrupt the district court's sentencing scheme. As the scheme now stands, the 20-year sentences for the CCE, the conspiracy, and the attempt (counts I, II, and III, respectively) run concurrent to one another. The sentences for the substantive drug offenses (counts V, X, and XI) run concurrent to one another and consecutive to the sentences for counts I, II, and III, resulting in a total sentence of 40 years. Upon vacation of the conviction on count II, the substantive offense counts will continue to run consecutive to counts I and III, with the result that Housley's 40-year sentence remains unchanged. Cf. Hernandez-Escarsega, 886 F.2d at 1582 (case remanded for vacation of conspiracy convictions but not for resentencing where only one criminal undertaking involved and the sentences for the conspiracy counts were imposed concurrent to the sentence for the CCE count).

Housley's position that the district court should be given an opportunity to reconsider the entire sentence is not supported, as he supposes, by the Eleventh Circuit's decision in United States v. Alvarez-Moreno, 874 F.2d 1402 (11th Cir. 1989). There, the district court had imposed on the defendant a 25-year sentence for the CCE count and 10-year sentences for each of two conspiracy counts, the sentences to run consecutively for a total sentence of 45 years. The Eleventh Circuit found that it was improper to sentence the defendant to consecutive terms on the CCE count and the two conspiracy counts because the conspiracies merged into the CCE. The court went on to note that the district court could have sentenced the defendant to life imprisonment on the CCE count, but instead structured a consecutive scheme totalling 45 years. The court deemed it appropriate to remand the case for resentencing because the district court's sentencing scheme was disrupted by the incorporation of illegal sentences and " [t]o simply vacate the conspiracy counts would thwart the district court's intent." Id. at 1414. The court thus gave the district court an opportunity to increase the sentence for the CCE count. This is not, one would assume, the opportunity that Housley is seeking.

Finally, we decline to consider those arguments which Housley raises for the first time on appeal.

As to appellant Brown, the judgment of the district court is AFFIRMED. As to appellant Housley, the case is REMANDED for vacation of the conviction under Count II for conspiracy in violation of section 846; in all other respects, the judgment of the district court is AFFIRMED.

AFFIRMED IN PART and REMANDED.

 *

The panel unanimously agrees that these cases are appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

Group A also includes two-year sentences for each of Housley's convictions for being a felon in possession of a weapon (Counts V and VI)

 2

The district court also reduced the sentence for count X from 20 years to 5 years

 3

Housley additionally contends (1) that the district court's failure to follow the enhancement of sentence procedures set forth in 21 U.S.C. § 851(b) constitutes reversible error, and (2) that his conviction for attempt under 21 U.S.C. § 846 must be vacated. These two contentions are addressed separately in the court's published opinion

 4

The vacation of Housley's conviction for conspiracy renders moot his contention that the district court exceeded its legislative authorization when it imposed the sentences for the substantive drug offenses (counts IV, X, and XI) consecutive to the sentence for the conspiracy. We note, however, that a similar challenge was considered and rejected in United States v. Wylie, 625 F.2d 1371, 1380-82 (9th Cir. 1980), cert. denied, 449 U.S. 1080 (1981). There, we "conclud [ed] that Congress did intend to allow the courts to impose consecutive sentences for conspiracy (21 U.S.C. § 846), and for substantive offenses (21 U.S.C. § 841(a) (1))." Id. at 1382

 5

28 U.S.C. § 2106 provides:

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.