Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

MEMORANDUM^** 

James Fitzhugh pleaded guilty to a single count of conspiracy to possess with intent to distribute cocaine, pursuant to 21 U.S.C. § 841(a) (1) and Sec. 846. He was sentenced under the Guidelines to 121 months. In this appeal he challenges the constitutionality of the Guidelines, and their application in his case. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Fitzhugh asserts a series of constitutional challenges to the validity of the Guidelines. As will appear, we have considered and rejected each of these arguments.

Fitzhugh argues the Guidelines violate the due process clause of the Fifth Amendment to the United States Constitution.

First, it is argued that the Guidelines effect a transfer of sentencing authority from the district court to the prosecutor. We rejected this argument in United States v. Sanchez, 908 F.2d 1443, 1445 (9th Cir. 1990).

Next, appellant argues that the Guidelines violate due process by denying proportionality and individuality in sentencing. We rejected this argument in United States v. Brady, 895 F.2d 538, 539 (9th Cir. 1990). See also United States v. Carpenter, 914 F.2d 1131, 1135 (9th Cir. 1990); United States v. Enriquez-Munoz, 906 F.2d 1356, 1359-60 (9th Cir. 1990).

Appellant next argues that the Guidelines violate due process by failing to require proof of underlying facts beyond a reasonable doubt. This argument was rejected in United States v. Wilson, 900 F.2d 1350, 1353-54 (9th Cir. 1990).

Fitzhugh argues the Guidelines are unconstitutional because they do not satisfy the "presentment clause" of the United States Constitution, Article I, Sec. 7. We rejected this argument in United States v. Scampini, 911 F.2d 350, 351-54 (9th Cir. 1990).

Fitzhugh finally challenges the application of the Guidelines to his case. We review the legality of a sentence de novo. United States v. Turner, 898 F.2d 705, 708 (1990), cert. denied, 110 S. Ct. 2574 (1990). We review the district court's findings of fact for clear error. Id.

The district court found that at least six kilograms of cocaine were involved in the conspiracy and employed a base level of 32. U.S.S.G. Sec. 2D1.1(c) (6). Fitzhugh argues the district court erred in basing his initial offense level on six kilograms rather than on 2.3 kilograms. The indictment charges Fitzhugh with two overt acts involving seven kilograms of cocaine. He argues that at trial¹  a government witness testified that these two deals, in March and December 1987, involved only 2.3 kilograms. From our review of Hurley's entire testimony, we cannot say the district court was clearly erroneous in finding that six kilograms were involved. Moreover, because he was convicted of conspiracy, Fitzhugh's culpability extends beyond those transactions in which he was directly involved. U.S.S.G. Sec. 2D1.4, Application Note 1; United States v. Turner, 898 F.2d at 710-11. There is no doubt whatsoever that in view of Hurley's testimony and the size of this operation, Fitzhugh is properly culpable for six kilograms.

Finally, we agree with the government that in light of Hurley's testimony regarding Fitzhugh's involvement in the distribution operation, the district court was not clearly erroneous in refusing to apply a two point reduction for minor participation. U.S.S.G. Sec. 3B1.2(b).

AFFIRMED.