United States v. Shields

939 F.2d 780
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 24, 1991
DocketNos. 89-50603, 89-50636 to 89-50638 and 89-50653
StatusPublished
Cited by22 cases

This text of 939 F.2d 780 (United States v. Shields) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shields, 939 F.2d 780 (9th Cir. 1991).

Opinions

WALLACE, Chief Judge:

Shields, Mitchell, Williams, and Glasgow (distributors) appeal from the sentences imposed after each pled guilty to distributing steroids in interstate commerce. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We vacate the sentences and remand.

I

During a two-year period, Shields, Mitchell, and Williams smuggled thousands of misbranded steroids into the United States, and distributed them on a nationwide basis. Glasgow, one of the recipients of the smuggled steroids, sold them locally. In 1989, all four steroid distributors were arrested, and charged with violations of 21 U.S.C. §§ 331(a), 333(b), and 353(b).

The distributors pled guilty to single felony counts of introducing steroids into interstate commerce and were sentenced under the Sentencing Guidelines. The presen-tence report calculated a Guidelines range of 0-4 months for Williams, Mitchell, and Glasgow and a slightly longer range of 1-7 months for Shields. However, after hearing argument from all parties, the district judge departed upward from the Guidelines and sentenced Shields to 3 years in prison, Williams to 18 months in prison, and Mitchell and Glasgow to 6 months each. The judge explained her decision to depart upwards from the Guidelines by stating that

The aggravating circumstance in this case is that the guidelines do not take into account quantity of steroids and role in the offense of the conspiracy — the role of the defendants in the offense, a conspiracy — as well as the quantity of steroids introduced into interstate commerce, and the scope of the criminal enterprise.

II

A sentencing judge may depart upward from the Guidelines if he or she finds aggravating circumstances of a kind “not adequately taken into consideration by the Sentencing Commission.” United States Sentencing Commission, Guidelines Manual, § 5K2.0 (Nov.1990) (U.S.S.G.), quoting 18 U.S.C. § 3553(b). In this case the district court provided three reasons for departing upward from the Guidelines: (1) the quantity of steroids involved, (2) the scope of the criminal enterprise, and (3) the distributors’ “role in the offense.” Whether these circumstances were adequately considered by the Commission is a question of law which we review de novo. See United States v. Carvajal, 905 F.2d 1292, 1294 (9th Cir.1990) (construction and interpretation of the Guidelines is a question of law).

A.

The distributors contend that quantity of steroids is not an appropriate grounds for departure because the Guideline applicable to steroid offenses does not contain any distinctions based on quantity. See U.S.S.G. § 2N2.1.1 They contrast ster[782]*782oids offenses with controlled substance offenses, where quantity is factored into the offense level and guidelines range. Compare id. § 2N2.1 (base offense level of 6) with id. § 2D 1.1 (sliding scale offense level depending on quantity). The distributors argue that the discrepancy between section 2N2.1 and section 2D1.1 shows that the Commission “deliberately ignored quantity” of steroids and disapproved consideration of this factor in the sentencing process.

When deciding whether a circumstance may be grounds for departure, courts must consider “the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b). Our review of these sources has uncovered no support for the distributors’ assertion that the Commission considered quantity of steroids when drafting section 2N2.1. Moreover, section 5K2.0 clearly states that courts should not infer that a factor is not relevant to sentencing, simply because it has not been listed as an offense characteristic. This provision rebuts the distributors’ contention that the Commission’s silence constitutes a bar to considering quantity of steroids while sentencing. See also id. § 1B1.4 (sentencing judge may consider “any information concerning the background, character and conduct of the defendant” (emphasis added)).

Indeed, the distributors’ argument has been rejected by two other circuits. In United States v. Correa-Vargas, 860 F.2d 35 (2d Cir.1988), Correa-Vargas pled guilty to a charge of using a communication facility in the commission of a drug offense. Although the relevant Guidelines provision, section 2D1.2, made no reference to quantity, the district court departed upward because of the large amount of drugs involved. In upholding the departure, the Second Circuit stated:

Based on the clear language of [section 5K2.0], the district court is free to take quantity into account as an aggravating circumstance in sentencing ... even though it is not mentioned in [the applicable Guideline]_ Appellant’s conclusion that the Commission must have rejected the factor purposefully is undermined by the Commission’s own statements.

Id. at 38. Similarly, in United States v. Ryan, 866 F.2d 604 (3d Cir.1989), the Third Circuit upheld a Guidelines departure based on quantity of drugs, even though the applicable Guidelines section contained no references to quantity. Id. at 607-08. These authorities are persuasive, and we hold that the judge did not err by departing upwards based on the quantity of steroids involved in the offense.

The distributors also argue that United States v. Restrepo, 883 F.2d 781 (9th Cir.1989), prohibits the sentencing judge from departing on the basis of quantities of steroids not included in the counts of conviction. This argument is without merit, as Restrepo has been withdrawn. United States v. Restrepo, 896 F.2d 1228 (9th Cir.), later proceeding, 903 F.2d 648 (9th Cir.), reh’g granted en banc, 912 F.2d 1568 (9th Cir.1990). We have since held that “relevant conduct,” as defined by section 1B1.3, includes quantities of drugs involved in the same course of conduct as the count of conviction. United States v. Turner, 898 F.2d 705, 711 (9th Cir.), cert. denied, — U.S. —, 110 S.Ct. 2574, 109 L.Ed.2d 756 (1990).

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