Unpublished Disposition, 916 F.2d 716 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 916 F.2d 716 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Brent Jeffrey MESHER, Defendant-Appellant

No. 89-30192.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 12, 1990.Decided Oct. 15, 1990.



Brent Mesher pleaded guilty to one count of possession of 500 grams or more of cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841(a) (1), 841(b) (1) (B) (ii) (II) and one count of money laundering in violation of 31 U.S.C. §§ 5313(a), 5322(a), 5324(3). The district court sentenced Mesher to 136 months on count I and 60 months on count II, to be served concurrently.

The district court calculated the base offense level under the sentencing guidelines by aggregating additional quantities of drugs to the conviction amount of four kilograms of cocaine. Because Mesher agreed to deliver ten kilograms of cocaine to an undercover DEA agent, the undelivered, but promised, six kilograms were added to the four he pleaded guilty to possessing. The court added an additional 26.5 kilograms as the cocaine equivalent to $796,000 in cash found in his two safety deposit boxes. The district court then reduced the base offense level, corresponding to 36.5 kilograms of cocaine, from 34 to 32 due to acceptance of responsibility.

Mesher appeals his sentence.

He argues that the district court applied the attempt and conspiracy provision of the sentencing guidelines, Sec. 2D1.4, when it should have looked solely to guideline Sec. 2D1.1 to calculate the base offense level. He contends that the court erred when it referred to Application Note 2 of Sec. 2D1.4 for authority to convert his cash into cocaine and when it used that amount, plus the additional six kilograms, to determine his base offense level. Our recent decision in United States v. Putney, 906 F.2d 477 (9th Cir. 1990) forecloses his argument. Id. at 479.

Sentencing for convictions under 21 U.S.C. § 841 is governed by sentencing guideline Sec. 2D1.1. United States Sentencing Comm'n, Guidelines Manual Appendix A (Nov. 1, 1989). Application Note 12 of Sec. 2D1.1 specifically refers to Application Note 2 of Sec. 2D1.4 in cases where "the amount seized does not reflect the scale of the offense." Id. at Sec. 2D1.1, Application Note 12. In determining the scale of the offense and approximating the quantity of the controlled substance, "the judge may consider, ..., the price generally obtained for the controlled substance, financial or other records, similar transactions in the controlled substance by the defendant, ..." Id. at Sec. 2D1.4, Application Note 2.

The district court correctly looked to Application Note 2 of Sec. 2D1.4 for authority to aggregate conviction quantities of drugs with additional quantities beyond the conviction amounts. Putney, 906 F.2d at 479; see also United States v. Restrepo, 903 F.2d 648, 652-653 (9th Cir. 1990) (Restrepo II) (concluding that Sec. 1B1.3 allows a sentencing court to look beyond the conviction quantities of drugs).

Mesher also argues that the district court's findings of fact are not supported by the evidence. He claims the cash was not drug-related and that he was never able to deliver the full ten kilograms of cocaine as promised.

This court reviews findings of fact for clear error. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). At the sentencing stage, findings of fact must be proved by a preponderance of the evidence. United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir. 1990). In Restrepo II, this court defined preponderance of the evidence as "a sufficient weight of evidence to convince a reasonable person of the probable existence of the enhancing factor." Restrepo II, 903 F.2d at 654-655.

The district court specifically adopted the probation officer's presentence report, finding that due to Mesher's earning power and lifestyle the quantities of cash could not have come from legitimate sources. [ER at 9 & 12]. Application Note 2 of 2D1.4 permits converting drug related cash into quantities of drugs when the amount seized does not reflect the scale of the offense. United States v. Gerante, 891 F.2d 364, 369 (1st Cir. 1989). The district court did not err when it added the 26.5 kilograms to the conviction quantity to calculate the base offense level.

The district court also rejected Mesher's self-serving statement denying he had the ability to deliver the additional six kilograms of cocaine. The court found that he was fully capable and, in fact, had made arrangements for a meeting to complete the ten kilogram transaction. [ER at 9]. The court's findings of fact were not clearly erroneous.

The contention that the sentencing guidelines violate due process is foreclosed by our decision in Wilson, 900 F.2d at 1352-1353.



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 Circuit Rule 36-3