Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 918 F.2d 181 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Glen Alan DAVIS, Defendant-Appellant.

No. 90-30114.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1990.* Decided Nov. 16, 1990.

Before EUGENE A. WRIGHT, CHOY and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Glen Alan Davis appeals his sentence under the Federal Sentencing Guidelines. Davis contends that the district court erred in (1) aggregating an amount of cocaine to which he did not plead guilty with the amount to which he pleaded guilty in determining his base offense level, (2) denying his request for a two-level reduction for acceptance of responsibility, and (3) enhancing his base offense level for acting as a supervisor in a count to which he did not plead guilty. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm in part, reverse in part and remand for resentencing.

FACTS

Davis was indicted along with several other individuals in a multiple-count indictment involving the distribution of cocaine. Davis was named in the general conspiracy count ("Count I") and in a count alleging that he and defendants Oscar Mendez Solis and Roy Delbert Clark distributed cocaine on March 25, 1988 ("Count V"). Davis originally pleaded guilty to Count V.1  This plea was subsequently withdrawn, Davis pleaded guilty to a criminal complaint charging the distribution of 3.9 grams of cocaine on May 19, 1988, and Counts I and V were dismissed.

The district court originally sentenced Davis to 45 months imprisonment and five years supervised release. The district court adopted the findings in the presentence report and set Davis' total offense level at 20. This included a base offense level of 18 for being involved in the distribution of 118.7 grams of cocaine2  and a two-level increase for acting in a supervisory capacity. The two-level increase was based upon the finding from the presentence report that Davis directed Clark to deliver the 58.6 grams of cocaine on March 25, 1988. The district court refused to grant Davis a two-level decrease for acceptance of responsibility.

Davis filed a Rule 35 motion for resentencing. The district court resentenced Davis to 37 months imprisonment. The district court specifically stated that it was revising the sentence because the original term was based upon an incorrect computation of the aggregate amount of drugs involved. Reporter's Transcript of Proceedings, February 2, 1990, at 6-7 (Rule 35 hearing).3  Again, the district court increased the base offense level two levels for acting in a supervisory capacity and refused to reduce the offense level for acceptance of responsibility.

ANALYSIS

Davis contends the district court erred in including the amount of cocaine as alleged in Count V of the indictment, which pertained to the delivery of 58.6 grams on March 25, 1988, because Count V was dismissed. We disagree. This circuit has held a district court may include amounts of drugs for which the defendant has not been convicted in determining a defendant's base offense level. See United States v. Turner, 898 F.2d 705, 710-11 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990). This is consistent with the Guidelines which provide that "in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." United States Sentencing Commission, Guidelines Manual, Sec. 1B1.3, (Backg'd) (Nov.1989). Because the 58.6 grams of cocaine distributed on March 25, 1988 were part of a general distribution scheme, the court properly included this amount in its computation of Davis' base offense level.

B. Denial of Reduction for Acceptance of Responsibility

Davis contends that the district court erred in failing to reduce his base offense level for acceptance of responsibility pursuant to section 3E1.1 of the Guidelines. We disagree.

Whether the defendant has accepted responsibility for his conduct within the meaning of the Guidelines is a factual determination subject to the clearly erroneous standard of review. United States v. Sanchez, 908 F.2d 1443, 1450 (9th Cir. 1990); United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). Furthermore, we recognize that "the sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to a great deal of deference on review and should not be disturbed unless it is without foundation." U.S.S.G. Sec. 3E1.1, comment n. 5.

Here, the district court specifically adopted the findings of the presentence report. See Findings of Fact Order (Amended), March 5, 1990, at 4, p 7; Reporter's Transcript of Proceedings, February 2, 1990, at 7 (Rule 35 hearing); Reporter's Transcript of Proceedings, May 3, 1989, at 9-10 (sentencing hearing). The writer of the presentence report determined that although Davis admitted to selling "a small amount of cocaine to the undercover agent on May 19, 1988," he maintained that he did so "only because he felt ... pressured...." Presentence Report, January 17, 1989, p 36. The manifestation of such feelings is inconsistent with the "recognition and affirmative acceptance of personal responsibility for ... criminal conduct" required by the Guidelines for the reduction for acceptance of responsibility. U.S.S.G. Sec. 3E1.1(a). Because we do not find the denial by the district court of the reduction for acceptance of responsibility to be clearly erroneous, we affirm.

C. Enhancement for Acting in Supervisory Capacity

Davis contends that the district court erred in enhancing his base offense level pursuant to section 3B1.1(c) for his alleged supervisory role in the dismissed count involving the distribution of 58.6 grams of cocaine on March 25, 1988. We agree.

Section 3B1.1 of the Guidelines provides:

Based on the defendant's role in the offense, increase the offense level as follows:

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by the 2 levels.

The opening language of this section, " [b]ased on the defendant's role in the offense," makes it plain that it is the defendant's role in the offense to which he pleaded guilty which is to be considered in determining whether his sentence should be enhanced for playing an aggravating role. Thus, the district court may "adjust only for the defendant's role in the conviction offense, not in charged or uncharged collateral conduct." United States v. Zweber, Nos. 89-30235 and 89-30240, slip op. 10245, 10254 (9th Cir. Aug. 31, 1990).4 

Here the district court imposed a two-level enhancement for Davis' supervision of another in the delivery of 58.6 grams of cocaine. Because Davis was not convicted of this offense, however, the district court erred in using his role as a supervisor to enhance his sentence.

Absent such enhancement and without any downward adjustment for acceptance of responsibility, Davis' base offense level would be 16. The Guideline range for this level, based upon a criminal history category of III, is 27-33 months. We remand this case to the district court for imposition of a sentence within this Guideline range.

AFFIRMED in part, REVERSED in part and REMANDED for resentencing.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The record indicates that Davis erroneously entered this guilty plea due to some confusion on the part of his attorney and the United States Attorney

 2

The amount of cocaine was based upon 58.6 grams of cocaine distributed on March 25, 1988, 56.2 grams of cocaine distributed on April 28, 1988 and 3.9 grams of cocaine distributed on May 19, 1988

 3

The new sentence was based upon the 58.6 grams of cocaine delivered on March 25, 1988 and the 3.9 grams of cocaine delivered by Davis on May 19, 1988. The new base offense level was 16 and the total offense level was 18

 4

Although Zweber involved an interpretation of section 3B1.2 of the Guidelines regarding a reduction of a defendant's base offense level for his minimal or minor role in the offense, its reasoning is applicable here. Zweber itself relied on case law from other circuits interpreting section 3B1.1, stating that "the reasoning is equally applicable ... [as the two sections] begin [ ] in the same way...." Zweber, Nos. 89-30325 and 89-30240, slip op. at 10253 n. 3