Unpublished Disposition, 937 F.2d 614 (9th Cir. 1989)

MEMORANDUM^* 

Patrick Grady appeals a judgment upon resentencing under the guidelines, alleging that: (1) the district court erred by aggregating cocaine that a coconspirator admitted to distributing with the amount Grady was found to have distributed in his offense of conviction; (2) the court erred in applying the Sec. 3B1.1 leadership-role enhancement; (3) the sentencing guidelines violate the ex post facto clause; (4) the court was vindictive; and (5) cumulative errors violated his due process rights. We affirm.

* In December 1987, an undercover DEA agent visited Grady, who was in jail serving a sentence for conspiracy to distribute cocaine. The agent said he wanted to buy two kilograms of cocaine. Over the next month, Grady and the agent arranged for cocaine delivery through a series of jailhouse meetings and telephone conversations. Grady referred the agent to numerous other persons involved in the cocaine conspiracy, including Michael Santos. Grady told the agent that Santos, a prisoner in the same jail, could arrange any transactions that the agent wished.

In late January and early February 1988, the agent bought 1.9 kilograms of cocaine from Ronald Sierra, a conspiracy member who was not in jail. Seven conspirators, including Grady, were arrested immediately thereafter.

Grady was convicted of conspiracy to distribute cocaine from December 1987 through February 4, 1988. Originally he was sentenced to 25 years. In 1989, after the decision in Mistretta v. United States, 488 U.S. 361 (1989), he moved for resentencing under the Sentencing Reform Act.

He moved to withdraw his motion after learning that the presentence report (PSR) recommended that his base offense level take into account Sierra's admission that he had distributed about six kilograms of cocaine. Sierra identified Santos as his supplier. The court refused to withdraw Grady's motion.

Finding that Sierra's distribution of six kilograms was part of the same conspiracy for which Grady was convicted, the court raised Grady's base offense level from 26 to 32. It added four points for his role as a leader or organizer. He was sentenced at the top of the applicable range to 293 months.

II

Grady challenges the court's aggregation of the 1.9 kilograms he distributed and the six kilograms coconspirator Sierra distributed. He asserts that Sierra distributed the cocaine before December 1987 and that the legal limits of the conspiracy were from December 1987 to February 1988. He says no evidence produced at trial connected him with the earlier sale by Sierra and that he was unaware of and could not have foreseen that sale.

The sentencing court's determination that drug sales, other than those specified in the indictment, were part of the same course of conduct or common scheme or were "reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake" is a factual finding reviewed for clear error. United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990).

The government bears the burden of proving, by a preponderance of the evidence, facts necessary to set the base offense level. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). To add the six kilograms distributed by Sierra to Grady's base offense level calculation, the government was required to prove that Grady knew or reasonably should have known that he was part of an ongoing conspiracy whose prior sales totaled at least six kilograms. See United States Sentencing Commission, Guidelines Manual, Sec. 1B1.3(a) (1), comment. (n. 1) (Nov. 1990).

Although Sierra's distribution of the six kilograms occurred between August 28 and December 2, 1987, a time frame outside of Grady's conviction, the record supports the inference that the two distributions were linked as part of a single, ongoing conspiracy.

The record reflects that Grady had access to a network of cocaine distributors, including Santos and Sierra. Grady's agreement with the agent to participate and his ability to identify a ready source, combined with the fact that the coconspirator identified him as the contact person suggest that Grady had prior access to large quantities of cocaine. We also note that Grady's PSR incorporates one from an earlier cocaine conspiracy conviction, and identified Grady as a customer of Santos in 1987. The court's finding that Grady was an organizer was not clearly erroneous. See infra Part III.

We conclude the district court did not clearly err in finding that Grady knew or should have known that he was part of an ongoing conspiracy involving the distribution of large quantities of cocaine.

We reject his argument that the district court erred in considering Sierra's admission because it occurred in a separate sentencing to which Grady was not a party. The guidelines permit the consideration of all relevant information "provided that [it] has sufficient indicia of reliability to support its probable accuracy." U.S.S.G. Sec. 6A1.3(a). We also reject Grady's suggestion that the district court improperly considered evidence of his involvement prior to the time frame set forth in the indictment.

III

Grady argues that, on its face and as applied, Sec. 3B1.1 of the guidelines is unconstitutionally vague and that there was insufficient evidence for the district court to find that he was an "organizer or leader." A section will be void for vagueness if it does not provide adequate notice to an ordinarily intelligent person of the conduct it prohibits or if it allows arbitrary and discriminatory enforcement. United States v. Westbrook, 817 F.2d 529, 531 (9th Cir. 1987).

Section 3B1.1 directs a four-level enhancement where "the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." Because five codefendants were involved in the drug sale to the DEA agent, Grady clearly falls within the five-person standard. A defendant whose conduct is described adequately in a statute may not attack the statute as not giving warning with respect to other conduct. See Schwartzmiller v. Gardner, 752 F.2d 1341, 1346 (9th Cir. 1984) (quoting Parker v. Levy, 417 U.S. 733, 756 (1974)).

Grady claims the terms "organizer or leader" under Sec. 3B1.1(a) (four-level enhancement) and "manager or supervisor" under Sec. 3B1.1(b) (three-level enhancement) are interchangeable and indistinguishable. We rejected an analogous challenge to 21 U.S.C. § 848 in United States v. Valenzuela, 596 F.2d 1361, 1367 (9th Cir.), cert. denied, 444 U.S. 865 (1979), and we reject Grady's argument here. See United States v. May, 902 F.2d 1501, 1504 (10th Cir. 1990).

Grady argues that there is insufficient evidence to find he was an "organizer." Application note 3 lists factors the court should consider when deciding if the defendant was an "organizer." U.S.S.G. Sec. 3B1.1, comment (n. 3). In applying Sec. 3B1.1(a) to Grady, the court found that he received financial premiums for his organizational services, his approval and efforts were required to consummate the deal, and he facilitated the distribution process. The determination that Grady was an organizer was not clearly erroneous. See United States v. Carvajal, 905 F.2d 1292, 1295 (9th Cir. 1990).

IV

Grady argues that the district court's application of the amended version of Sec. 1B1.3 (relevant conduct) violated the ex post facto clause. We foreclosed such a challenge to the use of the January 15, 1988 amendments in United States v. Restrepo, 903 F.2d 648, 656 (9th Cir.) reh'g en banc granted, 912 F.2d 1568 (1990). Because Grady admits that the conspiracy was in progress on January 15, 1988, the amendments are directly applicable. See United States v. Boyd, 885 F.2d 246, 248 (5th Cir. 1989); United States v. Terzado-Madruga, 897 F.2d 1099, 1124 (11th Cir. 1990).

As the November 1, 1989 amendments are clarifications rather than substantive changes to the guidelines, their application here does not violate the ex post facto clause. See Restrepo, 903 F.2d at 655-56; Miller v. Florida, 482 U.S. 423, 430 (1987).

V

Nothing in the record indicates a reasonable likelihood that the district court was vindictive and Grady has produced no evidence to suggest it. We reject that claim. See Alabama v. Smith, 490 U.S. 794, 799 (1989) (modifying North Carolina v. Pierce, 395 U.S. 711, 726 (1969)).

VI

We reject Grady's argument that the court made several errors that, considered cumulatively, violated his due process rights. There was ample justification to sentence at the top of the applicable range. Grady's drug dealing while in prison indicated a disregard for the criminal justice system. The court's consideration of Grady's rehabilitation is a matter of discretion and there is no evidence the court refused to consider it. The court stated specifically that it would not consider Grady's past arrests and there is no evidence that it did.

AFFIRMED.