Unpublished Disposition, 917 F.2d 28 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Harry KOLO, Defendant-Appellant.

No. 89-10300.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 15, 1990.Decided Oct. 23, 1990.

Before CHOY and FLETCHER, Circuit Judges and FITZGERALD, District Judge.^* 

MEMORANDUM^** 

Harry Kolo appeals his sentence imposed under the Sentencing Guidelines, following his conviction upon a guilty plea for conspiracy to distribute 452.2 grams of cocaine, in violation of 21 U.S.C. § 846. Kolo contends that the district court erred by placing the burden on him to prove the facts necessary to establish the base offense level. Kolo further contends that the district court improperly calculated his base offense level by considering other amounts of cocaine totaling one and one-half kilograms that Kolo admitted he distributed. We have jurisdiction under 28 U.S.C. § 1291.

We review the district court's legal interpretation of the Guidelines de novo. United States v. Anderson, 895 F.2d 641, 644 (9th Cir. 1990).

* Burden of Proof

The government bears the burden of proof for any fact necessary to determine the base offense level. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). The burden shifts to the defendant only if the government has met its burden and the defendant seeks to alter the base offense level. Id.

The base offense level for conspiracy is the same as that for the underlying offense. U.S.S.G. Sec. 2X1.1(a). Here, the underlying offense was distribution of cocaine. The base offense level for distribution of cocaine depends on the amount involved in the distribution. U.S.S.G. Sec. 2D1.1(a) (3). Thus, to arrive at the base offense level, the district court must first determine the quantity of cocaine involved in the underlying offense.

Here, the government did not attempt to prove the amount of cocaine involved in the conspiracy. Indeed, the government concedes that the district court erroneously placed the burden on Kolo. The court required Kolo to prove that all the cocaine he admitted distributing was not a part of the charged conspiracy. The district court erred by placing the burden of proof on Kolo because the government has the burden to prove facts necessary to establish the base offense level. See Howard, 894 F.2d at 1090.

II

Calculation of Base Offense Level

Kolo contends that the district court erred by considering the one and one-half kilograms of cocaine he distributed in determining his base offense level because this quantity was not involved in the offense of conviction.

The offense level for conspiracy to distribute cocaine is determined by the amount that the defendant conspired to sell. United States v. Alvarez-Cardenas, 902 F.2d 734, 736 (9th Cir. 1990). When sentencing such a defendant, the district court should consider only drug sales that were in furtherance of the conspiracy to which the defendant pleaded guilty. United States v. Turner, 898 F.2d 705, 713 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990); Commentary to U.S.S.G. Sec. 2D1.4.

The district court failed to make any findings regarding the quantity of cocaine Kolo conspired to sell or whether Kolo distributed the one and one-half kilograms of cocaine in furtherance of the charged conspiracy. Rather, the district court relied on the Guidelines' Relevant Conduct section, U.S.S.G. Secs. 1B1.3 and 1B1.4, alone in sentencing Kolo. The district court thus calculated Kolo's base offense level based on his distribution of the entire two kilograms of cocaine.

The district court erred on two grounds. First, the court misinterpreted the Guidelines by relying on the Relevant Conduct section alone to determine Kolo's base offense level. " [T]he Relevant Conduct section must be read in conjunction with section 2D1.4 which, by its explicit terms, limits the sentencing court's consideration of a defendant's or co-conspirator's conduct to that conduct which was in 'furtherance of the conspiracy [and] was known to the defendant or was reasonably foreseeable.' " Turner, 898 F.2d at 713. Second, the district court erred by failing to make findings on whether Kolo conspired to sell the entire two kilograms of cocaine. See Alvarez-Cardenas, 902 F.2d at 736. Because the district court did not make any findings in this regard, Kolo was prejudiced. If he did not sell the additional one and one-half kilograms of cocaine in furtherance of the charged conspiracy, his base offense level should have been reduced and his sentence shortened by as many as twenty-two months. See U.S.S.G. Sec. 2D1.1(c) (10); Chapter 5 Part A.

REVERSED AND REMANDED.