Unpublished Disposition, 911 F.2d 740 (9th Cir. 1989)

MEMORANDUM^** 

Jose Guadalupe Soto timely appeals his sentence imposed under the Sentencing Guidelines, following his guilty plea, for distributing approximately 25.19 grams of heroin, in violation of 21 U.S.C. § 841(a) (1). Soto contends that the district court erred by basing his offense level on the indictment's statements about all the heroin he allegedly distributed, rather than the amount to which he pleaded guilty. We have jurisdiction under 18 U.S.C. § 3742(a) (2) and we affirm.

Soto was sentenced on June 6, 1989 and thus the 1988 policy statements and amendments to the Guidelines apply. See 18 U.S.C. § 3553(a) (4) and (5); United States v. Turner, 898 F.2d 705, 709 n. 1 (9th Cir.) (applying 1988 amendment), cert. denied, 110 S. Ct. 2574 (1990). The district court must determine the offense level of a defendant who pleaded guilty to distributing drugs based on the defendant's relevant conduct. The quantities and types of drugs not specified in the count of conviction are added together to determine the offense level "if the quantities and types were part of the same course of conduct or part of a common scheme or plan as the count of conviction." U.S.S.G. Sec. 1B1.3, Background Notes at 1.19 (1988); Turner, 898 F.2d at 711, 713, 715. "The relevant conduct section 1B1.3(a) (1) applies to offenses of types for which convictions on multiple counts would be grouped together [as Closely-Related Counts] pursuant to Sec. 3D1.2(d); multiple convictions are not required. " U.S.S.G. Sec. 1B1.3, Application Note 2 at 1.18 (1988) (emphasis added) (quoted in Turner, 898 F.2d at 711); United States v. Restrepo, 903 F.2d 648, 651 (9th Cir. 1990) (interprets Multiple Counts of Conviction section).¹ 

Soto did not contest the indictment's declarations that he had distributed approximately 376 grams of heroin from December 19, 1988 to January 31, 1989. The district court found that Soto engaged in "a course of conduct going from December 6 at least until January 31 in the series of transactions of narcotics."

Soto contends that the aggregate amount of heroin cannot be used to establish his base offense level because he was convicted of only one count. Nonetheless, multiple convictions are not required for grouping unlawful conduct that is part of a common plan or scheme. Turner, 898 F.2d at 711. Because the district court found that Soto was involved in a course of conduct involving the distribution of both the heroin to which he pleaded guilty and the heroin for which the counts of distribution were dismissed, there was no error in basing the offense level on the aggregate amount of heroin distributed. See Restrepo, 903 F.2d at 651; Turner, 898 F.2d at 711.

AFFIRMED.