Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1990)

MEMORANDUM^* 

Davidson, Landis, and Stewart appeal their sentences of 188 months each, imposed under the Federal Sentencing Guidelines ("Guidelines") after they pled guilty to possession with intent to distribute in excess of 1,000 kilograms of marijuana on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a) and 21 U.S.C. § 960(b). They contend that the district court erred in calculating the Guidelines range by making an upward adjustment for obstruction of justice under Guidelines Sec. 3C1.1, and by failing to adjust downward for acceptance of responsibility under Guidelines Sec. 3E1.1 and for their minimal or minor roles in the offense under Guidelines Sec. 3B1.2. In addition, they argue that their due process rights have been violated because the guidelines fail to provide for a standard of proof and fail to provide for individualized sentencing.

Appellant Davidson also maintains that the district court improperly denied his motion to withdraw his plea, and that the district court was without jurisdiction because 46 U.S.C. § 1903, the statute under which he was convicted, is unconstitutionally vague and violates the prohibition against ex post facto laws.

Appellant Greyshock, who pled guilty to the same charges as the other appellants, in addition to the charge of destroying a cargo of marijuana in order to prevent its seizure by the United States Coast Guard, in violation of 18 U.S.C. § 2232, challenges only that part of his sentence which imposes a $100,000 fine under Guidelines Sec. 5E1.2 (formerly Sec. 5E4.2). He contends that he provided evidence that he could not pay such a fine, and that therefore, under Guidelines Sec. 5E1.2(f) (1), the court erred by imposing it.

We find appellants' arguments to be unpersuasive and affirm Davidson's conviction, as well as the sentences imposed on each appellant.

I. ISSUES RAISED BY DAVIDSON, LANDIS, AND STEWART

We review the district court's findings of fact for clear error and its conclusions of law de novo. United States v. Avila, No. 89-10390, slip op. 5899, 5903 (9th Cir. June 8, 1990).

Davidson, Landis, and Stewart contend that the district court erred in adjusting their offense levels upward two points for obstruction of justice under Guidelines Sec. 3C1.1. A court's finding that a defendant obstructed justice is a factual conclusion reviewed for clear error. United States v. Christman, 894 F.2d 339, 342 (9th Cir. 1990).

We cannot say that the district court's decision in this regard is clearly erroneous. The presentence report for each appellant recommended this adjustment based on false statements made by each appellant to federal officials who were investigating the crime immediately after rescuing the appellants from the sea after appellant Greyshock set fire to the vessel occupied by the appellants. The district court correctly recognized that a defendant's denial of guilt is not a basis for application of this provision, see Guidelines Sec. 3C1.1, application note 3, but concluded that each appellant did much more than merely deny guilt. After reviewing the record and looking at appellants' statements in context, we cannot say that the district court's determination that appellants attempted to obstruct justice is clearly erroneous.

Appellants' argument that their statements are not "material" for purposes of the obstruction of justice adjustment because the statements did not cause the federal officials to alter their conduct in any way has no merit. Section Sec. 3C1.1 encompasses attempted obstruction as well as actual obstruction. See United States v. Baker, 894 F.2d 1083, 1084 (9th Cir. 1990).

The district court did not err in denying downward adjustments for acceptance of responsibility. 18 U.S.C. § 3553(a) (5) provides that the court, in determining the particular sentence to be imposed, shall consider any pertinent policy statement issued by the Sentencing Commission that is in effect on the date the defendant is sentenced. Avila, slip op. at 5904. At the time of appellants' sentencing, Guidelines Sec. 3E1.1, Application Note 4, provided:

An adjustment under this section is not warranted where a defendant perjures himself, suborns perjury, or otherwise obstructs the trial or the administration of justice (see Sec. 3C1.1), regardless of other factors.

Because the district court found that the appellants had attempted to obstruct justice under Guidelines Sec. 3C1.1, it was certainly not improper to deny the reductions for acceptance of responsibility pursuant to this application note. See Avila, slip op. at 5905.

It is true that Application Note 4 has since been amended to allow for adjustments under both 3C1.1 (obstruction of justice) and 3E1.1 (acceptance of responsibility) in "extraordinary cases." See Guidelines Manual, Appendix C, amendment 258. However, we held in Avila that this amendment "is not instructive on how to apply the [previous version] of the Application Note." Id. at 5905-5906.

Appellants Davidson, Landis, and Stewart argue that the district court erred in not granting them downward adjustments for being minimal or minor participants under Guidelines Sec. 3B1.2. Whether a defendant is a minor or minimal participant is a factual determination subject to the clearly erroneous standard. Christman, 894 F.2d at 341. We have recognized that this downward adjustment is to be used infrequently. Id.

The district court's finding that appellants were not minor or minimal participants is not clearly erroneous. The court appropriately found that these appellants, comprising a small crew, were active participants and played an integral part in the attempt to bring a large amount of marijuana into the United States.

Appellants' argument that their role was minimal because this shipment of marijuana was a part of a much larger on-going conspiracy in which they played no part is unpersuasive. These appellants were not convicted or sentenced for the larger conspiracy, but only for possession with intent to distribute the marijuana on this particular vessel. We rejected a similar argument in Christman, 894 F.2d at 341. There, the appellant pled guilty to one count of using a telephone to facilitate a cocaine conspiracy and the district court found that he was a minor participant. On appeal, he argued that he was a minimal, rather than a minor participant in the conspiracy. We dismissed that argument, stating: "He was sentenced, however, based on the charge of using a telephone in the commission of a drug-related offense, not for conspiracy to distribute cocaine." Id. at 341.

Therefore, the district court's determination that the appellants were neither minor nor minimal participants is not clearly erroneous and the court did not err in refusing to reduce the offense level accordingly.

Appellants contend that the Sentencing Guidelines violate their Fifth Amendment due process rights by failing to provide for a standard of proof. This contention fails. We held in United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990) that the appropriate standard of proof on Guidelines issues is "preponderance of the evidence." We found that this standard is consistent with McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986), where the Supreme Court held that a state court may rely on factual findings established by a preponderance of the evidence in sentencing a defendant. Howard, 894 F.2d at 1090. In addition, because we find that the district court based its determinations on at least a preponderance of the evidence, appellants' due process rights as applied were not violated.

Appellants also contend that the Guidelines violate due process by failing to provide for consideration of individual mitigating factors. This argument was rejected in United States v. Brady, 895 F.2d 538, 540 (9th Cir. 1990), where we held that the Guidelines do not infringe a defendant's right to an individualized sentence.¹  We found that a court's consideration of a defendant's criminal history and the degree of seriousness of the crime, as well as its ability to depart from the Guidelines if a particular factor has not been taken into account under the Guidelines, constitutes "highly 'individualized' " sentencing. Id. We stated: "By requiring the sentencing court to consider all relevant factors and to articulate reasons for departing from such consideration, the Guidelines potentially pose fewer due process concerns than the pre-Guidelines sentencing practice of allowing nearly unfettered judicial discretion." Id. Because the district court properly applied the Guidelines in its sentencing, and because the Guidelines provide for individualized sentencing, appellants' due process rights in this regard were not violated.

A. Failure to allow withdrawal of guilty plea

Davidson contends that the district court wrongfully denied his motion to withdraw his plea. The decision to refuse permission to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Johnson, 760 F.2d 1025, 1026 (9th Cir. 1985). Here, it is clear that the district court did not abuse its discretion in denying Davidson's motion.

The Plea Agreement between Davidson and the United States stated that "the United States will not argue at the time of sentencing of the defendant that the Court should grant an upward departure." Davidson maintains that the government breached this agreement when it filed a "Response To The Several Sentencing Statements of Defendants Stewart, Landis, and Davidson" which stated that the probation officer was justified in recommending an upward adjustment of the offense levels for obstruction of justice. Davidson's contention is based on a misunderstanding of the terms "departure" and "adjustment" under the guidelines. The government at no point breached its agreement that it would not request a "departure." Furthermore, at argument, the government took no position as to whether the offense levels should even be "adjusted" upward. Therefore, the district court did not abuse its discretion in denying the motion to withdraw the plea.

Davidson appears to challenge the jurisdiction of the district court by arguing that 46 U.S.C. § 1903, the statute under which he was convicted, is unconstitutionally vague and violates the prohibition against ex post facto laws.

Davidson's arguments on these issues are inadequately presented, and in any event, are devoid of merit.

As part of Greyshock's sentence under the Guidelines, Judge Conti imposed a $100,000 fine upon him and mandated that the fine be paid within 120 days. Greyshock appeals the imposition of the fine, stating that the district court erred because he demonstrated that he was unable to pay it.

Guidelines Sec. 5E1.2 (formerly Sec. 5E4.2) mandates that the court impose a fine in all cases unless (1) the defendant establishes that he is not able to pay all or part of the fine required, even with the use of a reasonable installment schedule; or (2) imposition of a fine would unduly burden the defendant's dependents. Sec. 5E1.2(a) and (f).

The district court's determination that Greyshock is able to pay the fine is not clearly erroneous. Greyshock contends that his only asset is a $19,500 equity interest in a fishing boat. However, the record shows that he had received substantial amounts of money in cash during the months and years preceeding his arrest, a good portion of which was unaccounted for. This evidence led the court to the reasonable conclusion that, although Greyshock's bank account appeared to be empty, he had assets somewhere that he was not accounting for from which he could pay the fine.

AFFIRMED.