United States v. Hamilton

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 98-51002 Summary Calendar _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

RICKEY EUGENE HAMILTON, also known as Rickey Eugene Hamilton,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas (W-97-CR-35-3)

June 9, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Ricky Eugene Hamilton appeals the sentence imposed following his guilty-plea conviction of

conspiracy to possess marijuana with intent to distribute and conspiracy to commit money laundering,

in violation of 21 U.S.C. § 846 and 18 U.S.C. § 1956(h). Hamilton contends that the district court erred in refusing to “group” the two counts of

conviction pursuant to U.S.S.G. § 3D1.2, which would have reduced his combined offense level by

two levels. Because the decision to group offenses “depend[s] on factual and case-specific

conclusions, . . . we must give ‘due deference’ to the district court, and respect the informed

judgments made by that court.” United States v. Gallo, 927 F.2d 815, 823 (5th Cir. 1991).

Under U.S.S.G. § 3D1.2, a sentencing court must group “[a]ll counts involving substantially

the same harm.” This court should look to the language of the guidelines and the explanatory

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. comments to determine whether the district court correctly determined that offenses did not involve

substantially the same harm under § 3D1.2. See Gallo, 927 F.2d at 824. Two counts involve

“substantially the same harm,” (a) when the counts involve the same victim and the same act or

transaction, (b) when the counts involve the same victim and two or more acts or transactions

connected by a common criminal objective or constituting part of a common scheme or plan, (c) when

one count embodies conduct accounted for in the guideline applicable to the other count, or (d) when

the offense level is determined largely on some measure of aggregate harm, or if the offense behavior

is ongoing or co ntinuous in nature and the offense guideline is written to cover such behavior.

U.S.S.G. § 3D1.2.

The district court did not err in finding that money laundering and marijuana distribution do

not involve the “same victim” under § 3D1.2(a), (b). See Gallo, 927 F.2d at 824. It did not err by

implicitly determining that the two counts were not offenses of the “same general type” under §

3D1.2(d). See U.S.S.G. § 3D1.2, comment. (n.6). Hamilton does not argue that § 3D1.2(c) applies.

Hamilton contends that the district court’s ruling runs afoul of our decision in United States

v. Coscarelli, 105 F.3d 984 (5th Cir. 1997). However, this opinion was vacated, and is no longer of

precedential value. See United States v. Coscarelli, 111 F.3d 376 (5th Cir. 1997).

Accordingly, the sentence is AFFIRMED.

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