United States v. Beasley

• Court: Court of Appeals for the First Circuit
• Decided: December 21, 1993
• Docket: 93-1391
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1391

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                GEORGE CALVIN BEASLEY,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Boudin and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Jeffrey  A. Lipow with  whom Lipow,  Barton & Harris  was on brief
            _________________            _______________________
        for appellant.
            Jeffrey A. Locke, Assistant United  States Attorney, with  whom A.
            ________________                                                __
        John Pappalardo, United States Attorney, was on brief for appellee.
        _______________

____________________

                                  December 21, 1993
                                 ____________________

BREYER, Chief  Judge.  George  Beasley appeals his
                               ____________

             conviction for possessing  heroin with intent  to distribute

             it, 21  U.S.C.   841(a)(1), and his  related twenty-two year

             prison sentence.   His most important argument  focuses upon

             the  lawfulness   of  the  Sentencing   Guidelines'  "career

             offender" provision,  which increases  the guideline  prison

             term for offenders with two previous  "controlled substance"

             convictions.  U.S.S.G.    4B1.1.  In his  view, the relevant

             authorizing  sentencing statute, 28 U.S.C.   994(h), permits

             the  "career offender" guideline to take account of previous

             federal drug convictions, but not of convictions under state
             _______

             drug laws.  Like the two other circuits that have considered

             this argument, we  reject it.  United States  v. Rivera, 996
                                            _____________     ______

             F.2d 993 (9th  Cir. 1993); United States v.  Whyte, 892 F.2d
                                        _____________     _____

             1170 (3d Cir. 1989), cert. denied, 494 U.S. 1070 (1990); see
                                  ____________                        ___

             also United States  v. Dyer, No. 93-1045 (1st  Cir. June 18,
             ____ _____________     ____

             1993) (per  curiam).  And,  because we find  Beasley's other
                    ___  ______

             arguments  unconvincing,  we  affirm  the  district  court's

             judgment.

                                          I

                                      Background
                                      __________

                       On January 25, 1991, a customs inspector at Newark

             Airport noticed what turned out  to be heroin leaking from a

-2-
                                          2

puncture hole in a suitcase.  She stopped the apparent owner

             of  the suitcase, Habib Makdessi, who, eventually, agreed to

             help agents apprehend  others involved in an  elaborate plot

             to  smuggle  heroin  from Beirut  to,  and  through, Boston.

             Agents flew  with Makdessi and  the suitcase  to Boston  and

             checked  into a hotel, where,  Makdessi had told the agents,

             he  would receive  further instructions.    After about  one

             week, during which Makdessi had various phone  conversations

             related  to delivery of  the suitcase, Makdessi  received an

             authoritative call, which agents monitored, telling him that

             he should  give the heroin-filled  suitcase to a  person who

             would come to  Makdessi's room, identify himself  as "Paul,"

             say that "Ahmed sent me," and give Makdessi $20,000.  During

             that  conversation, Beasley knocked on the door, entered the

             apartment, told  Makdessi that "Ahman  sent me,"  identified

             himself as "Paul," and gave Makdessi $20,000.  Makdessi gave

             Beasley the  suitcase, and he told Beasley that it contained

             "a lot"  of heroin.   Makdessi added  that the  suitcase had

             been punctured  and was leaking  heroin.  He gave  Beasley a

             shower cap filled with some  of the heroin that had spilled.

             Beasley  lifted the  suitcase  and  shook  it.    Government

             agents,  who had  monitored the  drug  delivery with  hidden

-3-
                                          3

cameras and  audio recorders,  arrested Beasley  as he  left

             with the suitcase.  

                       After Beasley's  conviction, the  sentencing court

             turned to the  Guidelines.  It found  that Beasley possessed

             (with intent  to distribute)  just over  three kilograms  of

             heroin,  that  Beasley  had  one   previous  conviction  for

             violating a federal drug law (for possessing, with intent to

             distribute, about  25 grams of heroin), and that Beasley had

             one previous conviction for violating a  state drug law (for

             selling about  one-half gram  of heroin).   Ordinarily,  the

             amount of  the drug and  two prior felony  convictions would

             produce a Guideline  sentencing range of  188 to 235  months

             imprisonment  (Offense Level  34, Criminal  History Category

             III).    U.S.S.G.      2D1.1(c)(5),  4A1.1.    But,  because

             Beasley's  "two  prior  felony  convictions"  were  for   "a

             controlled substance offense," the court instead applied the

             special  "career offender" guideline.  U.S.S.G.   4B1.1 (see

             appendix for the  full text).  That guideline  applies to an

             offender who meets its  "career offender" definition, which,

             for  present  purposes,  includes a  person  convicted  of a

             "controlled  substance offense" who  also "has at  least two

             prior felony  convictions of  . .  . a  controlled substance

             offense," which latter term 

-4-
                                          4

means  an  offense  under a  federal  or
                                                             __
                       state law  prohibiting the  manufacture,
                       _____
                       import,    export,   distribution,    or
                       dispensing of a controlled substance . .
                       .  or  the  possession  of a  controlled
                       substance   .  .   .   with  intent   to
                       manufacture, import, export, distribute,
                       or dispense.

             U.S.S.G.   4B1.2(2) (emphasis added).

                       The special "career offender" guideline contains a

             table with offense levels geared to the maximum sentence  in

             the statute  of conviction.   It says that the  table "shall

             apply" to a "career offender" if the table level is "greater

             than the offense  level otherwise applicable."   The "career

             offender" guideline also specifies that a "career offender's

             criminal  history category in  every case shall  be Category

             VI."

                       At the sentencing hearing, the parties agreed that

             the drug statute  subjected Beasley to a  maximum penalty of

             forty  years imprisonment.   And,  the  offense level  table

             provides an offense level of  34 for a career offender, who,

             like Beasley, was subject to  a maximum penalty of "25 years

             or more"  (but less than  life).  Because the  ordinary drug

             conviction guideline  (applicable to  an offender with  just

             over  three kilograms of  heroin) also specifies  an offense

             level  of  34,  U.S.S.G.    2D1.1(c)(5),  the  table in  the

             "career  offender"  guideline  made  no   difference.    The

                                         -5-
                                          5

requirement  that  a  "career  offender's  criminal  history

             category"  must  be  "Category  VI,"  however,  did  make  a

             difference, for it increased  Beasley's guideline sentencing

             range, from one of 188 to 235  months, to one of 262 to  327

             months, thereby  authorizing the  22-year sentence  that the

             district court imposed.

                       Beasley,  as  we  have  said,  appeals   both  his

             conviction  and his  sentence.   (We  note, parenthetically,

             that the drug statute, in fact, seems to subject an offender

             such as Beasley to a  maximum term of life imprisonment, not

             forty  years.  See 21 U.S.C.    841(b)(1)(B).  But, in light
                            ___

             of the  government's sentencing  concession in  the district

             court, we  assume no  error in  the  point.   And, we  shall

             consider  the  sentencing  aspect  of  the  appeal  on  that

             assumption.)

                                          II

             The   Career  Offender   Guideline's   Prior  Drug   Offense
             ____________________________________________________________

             Definition
             __________

                       Beasley's  most important  argument concedes  that

             the  district court correctly applied the guidelines as they

             are  written.   He  claims,  however,  that  the  Sentencing

             Commission   lacked  the  legal  power  to  define  a  prior

             conviction for a  "controlled substance offense"  to include

-6-
                                          6

state,  as well as federal, convictions.  Beasley notes that
             _____

             the  Commission itself indicated  that it meant  its "career

             offender"  guideline   to  reflect  the  requirements  of  a

             particular statutory  provision, namely 28 U.S.C.    994(h).

             See U.S.S.G.    4B1.1 Background statement  (explaining that
             ___

             the "career offender" guideline meets   994(h)'s requirement

             that the guidelines "specify" for certain "career offenders"

             a "sentence . . . at or near the maximum term authorized" by

             statute).   He  urges  us  to judge  the  lawfulness of  the

             guideline on  the basis of  the legal ground upon  which the

             Commission  explicitly (and  apparently exclusively)  rested

             it.   Cf.  SEC v.  Chenery  Corp., 318  U.S. 80,  87  (1943)
                   __   ___     ______________

             (reviewing agency action on the basis of the agency's actual

             rationale).   And, he says,  the statute's  language is  not

             consistent with  the Commission's decision  to include state

             "controlled substance" convictions.

                       That statutory  language  says  that  an  offender

             should be treated  as a  "career offender"  if, among  other

             things, he  has "previously  been convicted of  two or  more

             prior felonies, each of which is"

                       (A) a crime of violence; or

                       (B) an offense  described in section 401
                       of  the  Controlled Substances  Act  (21
                       U.S.C. 841), sections 1002(a), 1005, and
                       1009 of the Controlled Substances Import

                                         -7-
                                          7

and  Export Act  (21 U.S.C.  952(a), 955
                       and  959), and section  1 of the  Act of
                       September 15, 1980 (21 U.S.C. 955a).

             28  U.S.C.     994(h)(2).    Part  (B)  of  this definition,

             defining  prior drug  convictions,  unlike  part (A),  lists

             specific  federal statutes.   That fact, in  Beasley's view,

             means  that  Part (B)  of  the definition  does  not include
                                                              ___

             convictions  under state  statutes.    And,  he  says,  that

             exclusion makes sense, for state drug convictions,  compared

             with  federal  drug convictions,  typically  involve smaller

             amounts of drugs.

                       We,  like   the  other  two  circuits   that  have

             considered this question, do  not accept Beasley's argument,

             for three  basic reasons.   First, although the  language of

             Part (B),  unlike Part (A),  does refer to  specific federal

             statutes,  if one  reads its  words literally,  it  does not

             exclude, but rather  includes, convictions under  state law.
                                  ________

             Part (B)  refers to "an offense described in" the particular
                                             ____________

             specified  federal  statutes.     Those  statutes   describe

             behavior  commonly called "drug trafficking."  They refer to

             such  activities   as  the  making,   importing,  exporting,

             distributing, or dispensing, of drugs, and  possessing drugs

             with  an intent to engage in these  activities.  They do not

             refer to simple possession of drugs (except when entering or

-8-
                                          8

leaving  the country).   A  literal  reading of  the statute

             would   include  a  conviction   under  a  state   law  that

             criminalizes some,  or all,  of these  same activities,  for

             such a state law would  create "an offense described in" the
                                                        ____________

             federal statute.

                       Second,  examination   of  the   purpose  of   the

             statutory  provision  supports   the  literal  reading  just

             described.   Congress wrote that  the provision's  objective

             was to ensure  that "substantial prison terms  [are] imposed

             on repeat  violent offenders  and repeat drug  traffickers."

             S. Rep. No. 225, 98th  Cong., 2d Sess. 175 (1984), reprinted
                                                                _________

             in 1984  U.S.C.C.A.N. 3182, 3358.   Beasley's interpretation
             __

             would frustrate this objective, for, on that interpretation,

             the  statute would not  require a "substantial  prison term"

             for  a   "repeat  drug  trafficker"   apprehended  by  state

             authorities and punished  under state, rather  than federal,

             law.    We  have  found   nothing  in  the  history  of  the

             legislation, nor in its language, that explains why Congress

             would want to insist (as  it did) upon a "substantial prison

             term"  for an offender  who repeats earlier  violent conduct
                                                          _______________

             (irrespective of jurisdiction) but not want to insist upon a

             similar  "substantial  prison  term"  for  an  offender  who

             similarly repeats earlier drug trafficking conduct.

-9-
                                          9

Third,  Beasley's  interpretation would  create  a

             significant anomaly  in  a  guideline  system,  the  primary

             objective of  which is  to create  uniformity of  sentencing

             treatment.   See Mistretta v.  United States, 488  U.S. 361,
                          ___ _________     _____________

             365-66 (1989);  28 U.S.C.   991(b)(1)(B)  (guidelines should

             "avoid[] unwarranted  sentence disparities  among defendants

             with similar records who have  been found guilty of  similar

             criminal conduct").   In seeking  uniformity, to distinguish

             among  offenders  on  the basis  of  different  behavior, or

             different  criminal  backgrounds,  often makes  sense,  when

             considered  in light  of the  basic  purposes of  punishment

             (e.g.,  deterrence,   "just  deserts,"   incapacitation,  or

             rehabilitation,  see 18 U.S.C.    3553(a)).   To distinguish
                              ___

             among them  on the basis  of which jurisdiction  happened to
                                          __________________

             punish  the past criminal behavior  seems (in the absence of

             some special  circumstance) close  to  irrational.   Compare
                                                                  _______

             U.S.S.G.   4A1.1 Background statement (prior convictions for

             criminal history purposes "may  represent convictions in the

             federal  system,  fifty  state   systems,  the  District  of

             Columbia,  territories, and  foreign,  tribal, and  military

             courts").

                       Beasley argues,  to the contrary,  that state drug

             trafficking  convictions often  involve  smaller amounts  of

-10-
                                          10

drugs.  We do not know the extent to which that is so.  But,

             in  any event,  Congress does  not  normally key  recidivism
                                                               __________

             punishments  to the  amount of  drugs  involved in  earlier,

             predicate convictions.   See, e.g.,  28 U.S.C.    994(h); 21
             _________                ___  ____

             U.S.C.   841(b).  And,  to read this statute as representing

             an effort to  do so seems  at least as  likely to produce  a

             crazy-quilt of  punishment  results, as  to connect  similar

             punishments rationally to similar past behavior.

                       Beasley's strongest argument is  that Congress, in

             other  statutes, has written the term "state law" explicitly

             when it has  wanted to include convictions  under state law.

             See, e.g., 28 U.S.C.   994(i); 21 U.S.C.   841(b); 18 U.S.C.
             ___  ____

                924(e).   In fact,  until  Congress amended  21 U.S.C.   

             841(b) specifically to allow sentence enhancements  based on

             prior  state law drug convictions,  courts had held that the

             statute did not apply to those state drug convictions.  See,
                                                                     ___

             e.g.,   United States  v. Gates, 807  F.2d 1075,  1082 (D.C.
             ____    _____________     _____

             Cir.  1986),  cert.  denied, 481  U.S.  1006  (1987); United
                           _____________                           ______

             States v. Johnson, 506 F.2d  305, 307 (7th Cir. 1974), cert.
             ______    _______                                      _____

             denied, 420 U.S. 1005 (1975).  However, the language used in
             ______

             the  earlier version  of     841(b)  is different  from  the

             "described  in" language  of     994(h).   See  21 U.S.C.   
                                                        ___

             841(b)(1)(A)  (referring to "prior convictions .  . . for an

-11-
                                          11

offense punishable under  . . . any  . . . other  law of the

             United  States   relating   to   narcotic   drugs"   (before

             amendment)).  Furthermore, the legislative history of former

               841(b)(1)(A),  unlike the legislative history  here, makes

             clear that  Congress intended that enhancement  provision to

             apply only  to a prior  federal conviction.  See  Gates, 807
                                     _______              ___  _____

             F.2d at  1082.   Congress  can  embody a  similar  scope-of-

             coverage intent in different ways in different statutes.

                       The  upshot is that the statute's purpose, and the

             purpose of  the sentencing laws  of which that statute  is a

             part, both  support the  Commission's interpretation  of the

             statute.  The language of the statute, when read  literally,

             favors that same  conclusion.  We find the  arguments to the

             contrary  plausible,  but  ultimately  not  convincing.   We

             therefore conclude that  the statutory provision  authorizes

             the Commission to define "career  offender" as it has  done,

             that is, to include  those with prior state law  convictions

             for  offenses  of the  sort  defined in  the  listed federal

             statutes.

                                         III

                                   Other Arguments
                                   _______________

                       1.  The Amount of  Heroin.  Beasley  was sentenced
                           _____________________

             under the  belief  that  the  applicable  offense  statutory

-12-
                                          12

maximum  was 40 years,  and thus, under  the career offender

             guideline,  offense level 34  applied.  Beasley  argues that

             the  court applied the  wrong statutory maximum  because the

             provision  it  used,    841(b)(1)(B),  applies  only  if the

             violation involved  100 grams  or more of  heroin.   And, he

             says that the  evidence did not support the district court's

             finding  that  he  knew  about the  3  kilograms  of heroin.

             Rather, he  says that the  evidence shows that he  only knew

             about 5 grams of heroin.  However,  even if it were relevant
                                                                 ________

             for sentencing purposes that  Beasley believed the  suitcase

             contained only five grams of  heroin, the same offense level

             would apply.  See 21 U.S.C.   841(b)(1)(C) (30 years maximum
                           ___

             sentence if repeat offender and violation involved less than

             100  grams of heroin); U.S.S.G.   4B1.1(b) (specifying level

             34 if statutory maximum for offense exceeds 25 years).

                       Regardless, the evidence  was more than sufficient

             to  support  the  district court's  factual  conclusion that

             Beasley knew the suitcase contained about three kilograms of

             heroin.   The  complex nature  of  the crime,  the elaborate

             delivery precautions, the  suitcase that  in fact  contained

             more than three kilograms of heroin, the fact that  Makdessi

             told him  the suitcase contained  a lot of heroin,  the fact

             that heroin  had leaked  out and was  contained in  a shower

-13-
                                          13

cap, and his having lifted and shaken the suitcase, together

             provide  more than  enough  support for  a  finding that  he

             actually  knew   the  transaction  involved  more  than  one

             kilogram.  The only contrary  evidence lies in the fact that

             he paid only  $20,000, far less than the  wholesale value of

             one kilogram.  Yet, nothing  in the record suggests that the

             $20,000 sum  was meant  to be more  than a  partial payment.

             Thus, this fact  does not lead us to  a contrary conclusion.

             Because  the record supports  a finding of  actual knowledge

             (and because any  error was harmless), we need  not consider

             other mental  states and  other circumstances.   Cf.  United
                                                              ___  ______

             States  v. Ekwunoh,  813 F. Supp.  168, 179  (E.D.N.Y. 1993)
             ______     _______

             (holding that, in  some circumstances,  defendant cannot  be

             sentenced  for  possessing  more  drugs  than he  reasonably

             believed he possessed).

                       2.  Ineffective Assistance  of  Counsel.   Beasley
                           ___________________________________

             says that his counsel was "ineffective" in failing to attack

             the  "chain of  custody"  receipts  for  the  heroin,  which

             attack, in his view, represented his only hope of acquittal.

             The record  before us  provides no  basis for  accepting his

             "ineffective assistance" claim.   The government  introduced

             what  seems to  be strong  evidence of  custody.   The trial

             court, as a  general matter, praised  counsel's performance.

-14-
                                          14

We  do   not  normally  consider   claims  of   "ineffective

             assistance" on direct appeal, for  such claims may require a

             court  to go  outside  the  trial  record, for  example,  to

             consider counsel's trial  strategy.  United States  v. Mala,
                                                  _____________     ____

             No. 91-2229, slip  op. at 9-10 (1st Cir. Oct. 27, 1993).  We

             see no reason  for making an exception to that  rule in this

             case.

                       3.  Waiver of Counsel.  In mid-trial Beasley asked
                           _________________

             the trial court  to permit him to discharge  his counsel and

             proceed on  his own.   The trial judge warned  Beasley about

             the dangers  of doing so.   But, when Beasley  persisted, he

             granted Beasley's request, having asked counsel to remain to

             advise Beasley  if necessary.   Beasley now argues  that the

             "totality  of the circumstances"  establish that Beasley did

             not "knowingly and intelligently" waive his Sixth  Amendment

             right to counsel.  See Farretta v. California, 422 U.S. 806,
                                ___ ________    __________

             835 (1975); United States v.  Hafen, 726 F.2d 21, 24-26 (1st
                         _____________     _____

             Cir.),  cert.  denied,  466  U.S.  962  (1984);  Maynard  v.
                     _____________                            _______

             Meachum, 545 F.2d 273, 277-79 (1st Cir. 1976).  He says that
             _______

             the record does not make  it sufficiently clear that he "was

             aware   of   the   dangers   and   disadvantages   of   self

             representation, the technical requirements of trial, and the

-15-
                                          15

potential  penalties he  was  facing."   Appellant's Opening

             Brief at 29; see Maynard, 545 F.2d at 279.
                          ___ _______

                       Having reviewed the  record, we do not  agree with

             Beasley's conclusions.  The district court clearly explained

             the disadvantages of his choice and the technical  nature of

             the trial.   The  judge discussed in  detail the  calling of

             witnesses,  the presentation of  closing arguments,  and the

             need  to review  jury  instructions,  all  to  help  Beasley

             understand   the  magnitude  of  what  he  proposed  to  do.

             Moreover,  Beasley's past  record  --  his  two  prior  drug

             convictions  -- suggest  some familiarity  with the  serious

             nature   of   trials  and   their   potential  technicality.

             Similarly, the fact  that Beasley had previously  received a

             five-year sentence  for  violating the  same statute,  along

             with the  notice of  enhanced sentence  that the  government

             sent   to  Beasley  and  the  detention  hearing  where  the

             government told Beasley  he faced a possible  life sentence,

             all  indicate  that  Beasley  was  aware  of  the  potential

             penalties   he  was  facing.    Beasley  now  says  that  he

             erroneously thought  he would  not be  permitted to  testify

             unless he  dismissed his lawyer, but the  record provides no

             basis  for  the  district  court's  having  believed Beasley

-16-
                                          16

entertained that  thought nor  any objective  basis for  his

             having done so.

                       Despite the  court's explanation  of disadvantages

             of self-representation and the  technicalities of the trial,

             Beasley insisted, quite clearly, that he wanted to represent

             himself.  The trial court, therefore, properly permitted him

             to  do so  and wisely asked  his counsel  to stay  and offer

             advice if necessary.  We find no error.

                       4.  Reasonable Doubt.  Beasley argues that the law
                           ________________

             required the district  court to define the  term "reasonable

             doubt" in its  jury instructions.  The  court, however, gave

             the type  of instruction that this court  approved in United
                                                                   ______

             States  v. Olmstead,  832 F.2d  642 (1st  Cir. 1987),  cert.
             ______     ________                                    _____

             denied, 486  U.S. 1009 (1988).   We  have held that  the law
             ______

             does  not  require  a  further,  more  detailed explanation.

             United States  v.  Campbell, 874  F.2d  838, 843  (1st  Cir.
             _____________      ________

             1989); Olmstead, 832 F.2d at 646.
                    ________

                       For these  reasons, the  judgment of  the district

             court is

                       Affirmed. 
                       _________

-17-
                                          17

Note:  See slip opinion for copy of Appendix.

-18-
                                          18