Unpublished Disposition, 911 F.2d 739 (9th Cir. 1988)

No. 88-5444.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT and LEAVY, Circuit Judges, and SAMUEL P. KING^** , District Judge.

MEMORANDUM^*** 

Hipolito Rivera-Ramirez ("Rivera") appeals from the district court's denial of his motion to correct an illegal sentence pursuant to Federal Rule of Criminal Procedure 35(a). We review the legality of the sentence de novo, United States v. Whitney, 785 F.2d 824, 825 (9th Cir. 1986) (per curiam) (as amended 838 F.2d 404 (1988)), and we affirm.

FACTS AND PROCEEDINGS

On November 16, 1981, Rivera pleaded guilty to one count of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846, and to one count of possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a) (1). On January 19, 1982, Rivera was sentenced to the maximum sentence of fifteen years imprisonment for each count, to be served consecutively, for a total of thirty years. See 21 U.S.C. § 841(b) (1) (A). Rivera was also sentenced to a $25,000 fine, plus a special parole term of life on the possession count.

On November 19, 1987, Rivera filed a motion under Fed. R. Crim. P. 35(a) to correct the sentence, alleging that the imposition of consecutive sentences was illegal. At the time Rivera was sentenced, Rule 35(a) provided that " [t]he court may correct an illegal sentence at any time...." The district court entered an order denying Rivera's motion on November 23, 1988. This timely appeal followed.

DISCUSSION

Rivera raises two arguments on appeal: (1) that his criminal conduct constituted one continuous scheme to which only a single term of imprisonment is authorized; and (2) that absent express statutory authorization, the imposition of consecutive sentences is unlawful.

Rivera contends that United States v. Palafox, 764 F.2d 558 (9th Cir. 1985) (en banc), prohibits the imposition of separate sentences for conspiracy to possess and distribute cocaine and possession of cocaine with the intent to distribute. In Palafox, we held

that where the defendant distributes a sample [of a controlled substance] and retains the remainder for the purpose of making an immediate distribution to the same recipients at the same place and at the same time, verdicts of guilty may be returned on both counts [of distribution and possession with the intent to distribute] but the defendant may be punished on only one.

Id. at 560 (footnote omitted). We reasoned "that where the defendant is convicted of multiple criminal steps leading to the same criminal undertaking, only one punishment should be imposed." Id. at 563. See also United States v. Wilson, 781 F.2d 1438, 1439 (9th Cir. 1986) (per curiam) (possession of piperidine and the manufacture of PCC were only "successive stages of a single criminal undertaking," that being the attempted manufacture of PCP).

The rulings of Palafox and Wilson are inapplicable in this case. Unlike Palafox where the "multiple criminal steps" leading to a single transaction occurred with the same people at the same time and place, Rivera participated in a criminal conspiracy over an eight month period which involved many separate transactions and individuals.¹  See United States v. Rodriquez-Ramirez, 777 F.2d 454 (9th Cir. 1985) (imposition of concurrent sentences for distribution of sample and possession of remainder for distribution two days later upheld).

Nor do we have merely successive steps in a single criminal undertaking as in Wilson. Rather, we have two distinct criminal acts. The well-established rule is that a conspiracy to do an act and the completed substantive offense are distinct crimes for which separate sentences may be imposed. See United States v. Wylie, 625 F.2d 1371, 1381 (9th Cir. 1980) (conspiracy to distribute and distribution may be punished consecutively), cert. denied, 449 U.S. 1080 (1981); United States v. Batimana, 623 F.2d 1366, 1370 (9th Cir.) (conspiracy to possess with intent to distribute and possession with intent to distribute punished consecutively), cert. denied, 449 U.S. 1038 (1980).

II. STATUTORY AUTHORIZATION AND CONSECUTIVE SENTENCES

Rivera next argues that the district court was not permitted to impose consecutive sentences absent express statutory authorization, which did not exist until 1984.²  We disagree.

A court may impose consecutive sentences absent express authorization where it is clear Congress intended that two statutory offenses be punished cumulatively. See Albernaz v. United States, 450 U.S. 333 (1981). Where the same act or transaction constitutes a violation of two distinct statutory provisions, the inquiry as to whether separate punishment may be imposed turns on " 'whether each provision requires proof of a fact which the other does not.' " Id. at 337 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).

We concluded in Wylie "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))." 625 F.2d at 1382. We noted that a substantive charge and a conspiracy charge based on the substantive charge are separate offenses under the Blockburger test because each requires proof of facts the other does not--conspiracy requires proof of an agreement while conviction on the substantive charge requires consummation of the crime. Id. at 1381; United States v. Rubalcaba, 811 F.2d 491, 495 (9th Cir.), cert. denied, 484 U.S. 832 (1987). We also found nothing in the Comprehensive Drug Abuse Prevention and Control Act of 1970, of which sections 846 and 841(a) (1) are a part, or in the legislative history "which would indicate that Congress intended to depart from the general rule that courts can impose separate sentences for the conspiracy to commit an offense and the accomplishment of the substantive offense itself." Wylie, 625 F.2d at 1381.

We find the rule of lenity established in Bifulco v. United States, 447 U.S. 381 (1980), to be inapplicable in this case. " [T]he touchstone of the rule of lenity is statutory ambiguity," Albernaz, 450 U.S. at 342 (quotation omitted), and none exists in this case. Rather, we are presented with clear statutory language and a legislative history which provides " 'persuasive evidence that, because of the special dangers which conspiracies to distribute controlled drugs pose to society,' " Congress intended to impose dual punishments for violations of sections 841(a) (1) and 846. Wylie, 625 F.2d at 1382 (auoting United States v. Bommarito, 524 F.2d 140, 143-44 (2d Cir. 1975)).

Accordingly, the district court's denial of Rivera's motion to correct an illegal sentence is AFFIRMED.