United States v. Toufic S. Nagi (89-2130) Robert F. Barash (89-2140) and Richard Weaver (89-2131)

947 F.2d 211

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 7, 1992
• Docket: 89-2130, 89-2140 and 89-2131
• Status: Published

Opinions

RYAN, Circuit Judge.

Defendants, Toufic Nagi, Robert Barash, and Richard Weaver, appeal their sentences arising from their convictions for conducting a continuing criminal enterprise, and for conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 848. The issues on appeal are:

Whether the district court committed reversible error in calculating Nagi’s and Barash’s sentences using the Sentencing Guidelines which became effective after the alleged conspiracy had ended; and Whether the district court correctly found that Weaver was not a minor participant within the meaning of Sentencing Guideline § 3B1.2, denying Weaver a two point reduction in his sentence.

For the reasons expressed below, we affirm.

I.

Defendants were indicted for conspiracy to possess with the intent to distribute cocaine and heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), in September 1988. Nagi and Barash were also charged with conducting a continuing criminal enterprise, in violation of 21 U.S.C. § 848, and other related felonies. Pursuant to identical plea agreements under Fed.R.Crim.P. 11, Nagi and Barash pled guilty to the continuing criminal enterprise charge. Both Nagi’s and Barash’s plea agreements provided that:

[t]he government promises, and the defendant agrees, that the applicable guideline range is 188-235 months. The Court and Probation is free to accept or reject this calculation; however, neither party is free to withdraw from this agreement on the basis that the Guidelines differ from this expectation.

Work sheets were attached to the plea agreements and incorporated by reference which calculated the defendants’ base offense levels using section 2D1.5 of the Sentencing Guidelines which was effective October 15, 1988. This section provides that for a first conviction of engaging in a continuing criminal enterprise, the appropriate base offense level is 36. However, the original version of Guideline § 2D1.5, effective November 1, 1987, provided that the appropriate base offense level was 32.

Both Nagi’s and Barash’s presentence reports determined that their plea agreements reflected an accurate base offense level at 36. The district court agreed and, without objection, adjusted both defendants’ base offense levels to 34 for acceptance of responsibility. With this adjustment, the guideline range was 188-235 months’ imprisonment. The court sentenced both defendants to 204 months, with 4 years’ supervised release.

Weaver pled guilty, pursuant to a Rule 11 plea agreement, to one count of conspiracy to possess with the intent to distribute a controlled substance. Weaver’s plea agreement provided that Weaver would not be sentenced to more than 71 months. However, the parties did not agree upon whether Weaver was entitled to a two point reduction in his sentence because he was a minor participant as defined in section 3B1.2 of the Sentencing Guidelines. The district court concluded that Weaver was not a minor participant within the meaning of section 3B1.2 and sentenced him to 65 months’ imprisonment with 4 years’ supervised release.

II.

Nagi and Barash

Nagi and Barash claim the district court erroneously calculated their base offense levels using the Sentencing Guidelines which were effective October 15, 1988. Defendants argue that the Guidelines effective in November 1987 should apply because the indictment to which they plead guilty provides: “[t]hat from on or about August, 1986, said date being approximate, and continuing thereafter to and including October 11, 1988, ....” They claim that because the indictment fixes the completion of the offense on October 11, 1988, the October 15, 1988, Guidelines are inapplicable. Thus, they contend that their base offense levels are 32, not 36 as determined by the district court.

The government responds that defendants waived this issue by failing to raise it in the lower court. We agree. Although technically the November 1987 Guidelines apply because of the potential ex post facto problem,¹ Nagi and Barash raise this issue for the first time on appeal. For the familiar reason that we do not ordinarily address issues that might have been but were not raised in the trial court, we decline to address the issue now for the first time.

Anticipating our adherence to the traditional rule that issues not raised below are not addressed here, defendants cite several cases for the proposition that a defendant may appeal a sentence under 18 U.S.C. § 3742(a)(1) or (a)(2) which permits appeals of sentences “imposed in violation of the law” or “imposed as a result of an incorrect application of the sentencing guidelines,” even when the issue was not raised in the trial court. However, we think defendants do not read this provision of the code accurately. Section 3742 specifically provides:

§ 3742. Review of a sentence

(a) Appeal by a defendant. — A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines....

18 U.S.C. § 3742 (emphasis added). Therefore, a defendant must first present the claim in the district court before we can entertain the alleged misapplication of the Guidelines on appeal. Clearly, the district court’s failure to address the asserted misapplication is not “plain error” because both sides agreed to the application of the October Guidelines.

In reaching this conclusion, we distinguish the closely related case of United States v. Newsome, 894 F.2d 852 (6th Cir. 1990), in which this court held that 18 U.S.C. § 3742(f)(1) requires the court to remand the case for further sentencing proceedings when a sentence is imposed in violation of law. Newsome is distinguishable in two respects. First, the presen-tence report in that case determined that the defendant’s sentence was miscalculated in the plea agreement. Second, defense counsel in Newsome filed a memorandum in the district court prior to sentencing urging the court to impose a sentence within the correct guideline range.

In contrast, Nagi’s and Barash’s presen-tence reports agreed with the plea agreements that the October 1988 Guidelines were applicable. Additionally, both defense counsel strongly urged the district court to accept the plea agreements and impose a sentence within the range expressed in those agreements.

Furthermore, we find that defense counsel’s action in Newsome satisfied the requirements of 18 U.S.C. § 3742(a)(1) or (a)(2) by filing a memorandum in the district court prior to the court’s imposition of the defendant’s sentence. In this instance, defendants failed to notify the district court in any way of a claim that their sentences were improper.

We also find United States v. Sloman, 909 F.2d 176, 182-83 (6th Cir.1990), persuasive. In Sloman, defense counsel orally agreed that the November 1, 1987, Sentencing Guidelines applied, even though the indictment charged a conspiracy running from about May 9, 1986, until about September 7, 1988. On appeal, the defendant claimed that the pre-November 1, 1987, law should apply. This court refused to consider such a claim, stating:

An attorney cannot agree in open court with a judge’s proposed course of conduct and then charge the court with error in following that course. [Defendant] waived any objection he might have to being sentenced under the guidelines.

Id. at 182.

Nagi and Barash both agreed in their plea agreements that the Guidelines which applied were those effective October 15, 1988. They may not now argue on appeal that the district court erred in following that course urged by their respective counsel in the trial court.²

Nevertheless, defendants claim they should be excused for the failure to raise this issue in the district court because they received ineffective assistance of counsel. However, we have repeatedly held that an ineffective assistance of counsel claim may not be raised on appeal for the first time when there is no proof of ineffective assistance of counsel in the record. United States v. Walton, 908 F.2d 1289, 1295 (6th Cir.), cert. denied sub nom., Mitchell v. United States, — U.S. —, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990); United States v. Swidan, 888 F.2d 1076, 1081 (6th Cir.1989). There is no evidence in the record that Nagi or Barash received ineffective assistance of counsel in the negotiation of their plea agreements. To the contrary, if both defendants had not entered into such plea agreements, they each would have faced the prospect of 30 years to life imprisonment. Instead, each defendant only received 17 years’ imprisonment.

In sum, we find that Nagi and Barash waived this issue because they failed to first present the claim to the district court, as required under 18 U.S.C. § 3742(a). Accordingly, we affirm.

III.

Weaver

Weaver claims that the district court’s finding that he did not play a “minor role” in the conspiracy was clearly erroneous. He argues that Nagi and Bar-ash were the principal operators in a large scale cocaine trafficking operation, and that he was merely a minor participant. He claims, therefore, to be entitled to a two point reduction in his sentence under section 3B1.2 of the Sentencing Guidelines.

Sentencing Guideline § 3B1.2(b) provides for a minor participant reduction when a party is “less culpable than most other participants” and “substantially less culpable than the average participant.” “The culpability determination is ‘heavily dependent upon the facts,’ and the defendant has the burden of proving mitigating factors by a preponderance of the evidence.” United States v. Perry, 908 F.2d 56, 58 (6th Cir.) (citations omitted), cert. denied, — U.S. —, 111 S.Ct. 565, 112 L.Ed.2d 571 (1990). On appeal, we “shall accept the findings of fact of the district court unless they are clearly erroneous” and shall give due deference to the district court’s application of the guidelines to the facts. 18 U.S.C. § 3742(d).

When considering this issue, the district court found that Weaver was heavily involved in the Nagi-Barash conspiracy. It stated that Weaver distributed from 250-500 grams of cocaine every week, received the cocaine from a runner, and paid the runner for the drugs. The court also noted that Weaver indicated that he sold a quarter kilogram of cocaine every six days for $6,500, making $1,000 profit each time. We conclude that these findings are amply supported in the record and demonstrate that the conspiracy relied upon Weaver to move large quantities of cocaine every week.

As stated in Perry, “[although [defendant] may have been less culpable than most other participants, we cannot say that his part in the conspiracy made him ‘substantially less culpable than the average participant.’ ” 908 F.2d at 58. In other words, although Weaver may have been less culpable than Nagi and Barash, we cannot say that Weaver’s part in the conspiracy made him “substantially less culpable than the average participant.”

Accordingly, the district court’s finding that Weaver was not a minor participant within the meaning of section 3B1.2 is not clearly erroneous. The judgments of conviction and the sentences imposed are AFFIRMED.

1 . Generally, a district court must apply the Guidelines in effect "at the time of sentencing” under 18 U.S.C. § 3553(a)(4). However, when the Guidelines in effect at the time of sentencing provide for a higher range than those in effect at the time the crime was committed, an ex post facto problem exists and the court must not impose a sentence in excess of that allowed by the older Guidelines. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).

The indictment in this case states that the criminal enterprise continued until October 11, 1988 — before the effective date of the October Guidelines. Because section 2D1.5 of the October 1988 Guidelines (those in effect at the time of defendants’ sentencing) provides for a higher base offense level than the November 1987 Guidelines (those in effect at the time the crime was committed), technically the older Guidelines apply.

2 . Implicit in the dissent is the proposition that, under the majority opinion, as a result of the failure of Nagi and Barash to raise the Guidelines issue in the district court, they have no remedy. However, they are free to file a petition for relief under 28 U.S.C. § 2255 and obtain a ruling on their contention from which they may appeal.