United States v. William Tharp

892 F.2d 691, 1989 WL 159714
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 9, 1990
Docket88-1829
StatusPublished
Cited by30 cases

This text of 892 F.2d 691 (United States v. William Tharp) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. William Tharp, 892 F.2d 691, 1989 WL 159714 (8th Cir. 1990).

Opinions

ARNOLD, Circuit Judge.

William Tharp appeals from the sentence imposed on him after he pleaded guilty to [692]*692conspiracy to distribute methamphet-amines, in violation of 21 U.S.C. § 846, arguing that the Sentencing Guidelines should not have been applied in his case. Because we hold that the Guidelines apply to a conspiracy begun before their effective date and continuing afterwards, we affirm the judgment of the District Court.1

I.

William Tharp was charged with two counts of using a communications facility to commit a controlled-substance felony, in violation of 21 U.S.C. § 843(b), and one count of conspiracy to possess and deliver a controlled substance, in violation of 21 U.S.C. § 846. After plea negotiations with the government, Tharp entered a guilty plea to the conspiracy count. The District Court sentenced him to 79 months in prison, followed by three years supervised release, as dictated by the Sentencing Guidelines.

Tharp and the government stipulated that the conspiracy to sell methamphet-amines occurred between the first week in October 1987, and November 24, 1987, the day Tharp was arrested. Overt acts in furtherance of the conspiracy occurred on November 15th and 16th, when Tharp made phone calls to set up the sales. Thus, the conspiracy “straddled” the effective date of the Sentencing Guidelines, November 1, 1987.

Whether the Guidelines applied in Tharp’s case was an issue before the District Court. Tharp argued the Guidelines did not apply, claiming that the government had agreed that “the offense be judged as a pre-November 1, 1987 offense.” The government responded that there was no formal written plea agreement, that many options were covered in negotiations, and that the Guidelines were properly applied in the case of a continuing offense which straddled their effective date. The District Court held the Guidelines did apply, reasoning that an agreement between the government and defendant, assuming there was one, would have no effect, since “application of the new Act for an offense committed within its provisions is mandatory, and cannot be bargained away by the parties.” United States v. Tharp, No. 87-273 Cr. (2), slip op. at 3 (E.D.Mo. March 16, 1988). The Court made no finding on the existence of an agreement.

II.

On appeal Tharp argues that the Sentencing Guidelines should not have been applied in his case.2 While accepting the general proposition that conspiracy is a continuing offense, and therefore subject to any modifications in the law during the course of the conspiracy, United States v. Giry, 818 F.2d 120, 135 (1st Cir.), cert. denied, 484 U.S. 855, 108 S.Ct. 162, 98 L.Ed.2d 116 (1987), Tharp contends that the Guidelines should not have been applied to his case because he and the government agreed to treat the offense as occurring before November 1, 1987. Tharp points out that the conspiracy statute under which he was charged, 21 U.S.C. § 846, does not require an overt act, United States v. Covos, 872 F.2d 805 (8th Cir.1989), and so claims that his crime can fairly be considered to have been completed in October, Thus, Tharp argues, the District Court erred in holding the Guidelines were mandatory and rejecting the plea agreement.

The government responds that, although several plea options were discussed, no formal agreement was ever reached. Thus, there was no agreement to consider the conspiracy completed as of November 1, 1987, and no plea agreement for the Court to reject. As noted previously, the District Court made no finding on this question of [693]*693fact, instead ruling that application of the Guidelines was mandatory.

We doubt that any such agreement was ever made. Tharp alleged that the agreement had been reached, but he never attempted to establish it by evidence, and we suspect that if the government had made such an agreement, counsel for both sides would have insisted that it be formalized in some sort of written instrument, or else acknowledged on the record in open court. In any case, we agree with the District Court that such an agreement would have no legal effect. Parties cannot by stipulation bind the court on a question of law. The same result could perhaps have been accomplished by filing a superseding indictment charging a conspiracy that was fully completed by November 1, but that did not happen here. So the question is simply this: do the Guidelines apply to a continuing offense begun before November 1 but continuing until on or after that date?

III.

In determining whether the Guidelines apply to conspiracies which straddle their effective date, we must examine two issues: (1) whether application of the Guidelines violates the Ex Post Facto Clause, and (2) whether application of the Guidelines to a continuing offense is required by the statute. After considering both questions, we conclude that the Guidelines do apply.

Article I of the Constitution provides that neither Congress nor the States shall pass any ex post facto law. Within the meaning of ex post facto law is a law which “ ‘changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed.’ ” Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351 (1987) (quoting Colder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798)).

As an original matter, one might think that application of the Guidelines to conduct occurring before their effective date violates the Ex Post Facto Clause. However, “[i]t is well-established that a statute increasing a penalty with respect to a criminal conspiracy which commenced prior to, but was continued beyond the effective date of the statute, is not ex post facto as to that crime.” United States v. Campanale, 518 F.2d 352, 365 (9th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976); United States v. Baresh, 790 F.2d 392, 404 (5th Cir.1986); United States v. Giry, supra. Indeed the Fifth Circuit has already held that application of the Sentencing Guidelines to a conspiracy which straddles the Guidelines’ effective date does not violate the Ex Post Facto Clause. United States v. White, 869 F.2d 822, 826 (5th Cir.), cert. denied, — U.S. -, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989). We agree with this analysis.

Determining the intent of Congress on the continuing-offense question is more difficult.

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Bluebook (online)
892 F.2d 691, 1989 WL 159714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-tharp-ca8-1990.