UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-3786 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLA DENIZA MALCON DE VEAL,
Defendant-Appellant.
Appeal from the United States District Court For the Eastern District of Louisiana
(April 15, 1992)
Before POLITZ, Chief Judge, DAVIS and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:
Marla Denzia Malcon De Veal appeals her sentence after the
jury returned verdicts of guilty to charges of conspiracy to import
cocaine, importation of cocaine, and aircraft smuggling, in
violation of 21 U.S.C. §§ 963, 960(a)(1), 952(a); 18 U.S.C. § 2;
and 19 U.S.C. § 1590(a). The sole issue presented on appeal is
whether she had been convicted of a prior drug offense in Kansas state court. The trial court found that she had and imposed a
mandatory-minimum sentence of 20 years. Finding no clearly
erroneous finding of fact and no error of law, we affirm.
Background
De Veal was arrested at the New Orleans International Airport
after a flight from Costa Rica when inspectors found packages
containing cocaine taped to her body. She was charged and
convicted of conspiracy to import cocaine, its importation, and
smuggling cocaine aboard an aircraft. The sentencing guidelines
for an offense level of 32 and a criminal history category of II,
as computed in the presentence report, provide a sentencing range
of 135 to 168 months. The government filed a bill of information
reflecting a prior conviction in Kansas for drug trafficking.
Under 21 U.S.C. § 960(b)(1), the minimum mandatory sentence of ten
years was doubled because of the prior conviction.
The trial court considered De Veal's objections at sentencing,
accepted the bill of information, and found that the prior offense
had occurred. The court then sentenced De Veal to 240 months for
conspiracy and concurrent terms of 144 months on the importation
and aircraft smuggling counts, plus supervised release terms and a
fine. The sole issue raised on appeal is the propriety of the
enhancement under 21 U.S.C. §§ 960 and 962 based on the Kansas
conviction.
2 Analysis
We review de novo applications of the sentencing guidelines as
relates to the law. United States v. Otero, 868 F.2d 1412 (5th
Cir. 1989). Findings of fact are reviewed under the clearly
erroneous standard. United States v. Mourning, 914 F.2d 699 (5th
Cir. 1990).
The question before us is whether the Kansas conviction
constitutes a prior conviction within the meaning of 21 U.S.C.
§ 960(b)(1) which provides, in pertinent part, that when a person
commits a violation involving five kilograms or more of a
detectable amount of cocaine, "the person committing such violation
shall be sentenced to a term of imprisonment of not less than 10
years and not more than life . . ." Furthermore:
. . . If any person commits such a violation after one or more prior convictions for an offense punishable under this subsection, or for a felony under any other provision of this title or title II or other law of a State, United States, or foreign country relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not less than 20 years and not more than life imprisonment. . . .
For the purpose of section 960(b)(1), a conviction becomes
final when it is no longer subject to examination on direct appeal.
See United States v. Morales, 854 F.2d 65 (5th Cir. 1988).
De Veal's conviction was final because the period for seeking
appellate review of the state conviction had expired when she
committed the offense in the case at bar.
De Veal contends that her conviction in the state court of
Kansas in 1988 for conspiracy to sell cocaine and her present
3 convictions were all one episode of an ongoing conspiracy. De Veal
therefore argues that her earlier conviction does not qualify as a
"prior conviction" under 21 U.S.C. § 960(b)(1). We are not
persuaded.
The events leading up to the two convictions constitute two
distinct episodes.1 The time between the episodes was more than
two and a half years; the first episode occurred in January 1988,
the second in August 1990. The statutory offenses charged are
completely different; in the first episode De Veal was convicted of
conspiracy to sell and distribute cocaine in violation of state
law, K.S.A. 21-3302 and K.S.A. 65-4127a; in the second episode she
was convicted of federal violations of conspiracy to import
cocaine, importation of cocaine, and aircraft smuggling. The
places were geographically distant, Kansas and New Orleans. To
accept De Veal's interpretation of the statute would largely
undermine, if not in fact defeat, the purpose of section 906(b)(1)
to target and deter recidivism.2
1 "An episode is an incident that is part of a series, but forms a separate unit within the whole. Although related to the entire course of events, an episode is a punctuated occurrence with a limited duration . . . Such events occu[r] at distinct times. . . ." United States v. Hughes, 924 F.2d 1354, 1361 (6th Cir. 1991).
2 "Our finding that the state felony conviction is a proper predicate for sentencing enhancement within the meaning of [§ 960(b)(1)] is further supported by an examination of the facts of this case in light of the statute's legislative purpose to punish recidivists more severely. After [De Veal's] state felony conviction, which became final in [December] 1988, [De Veal] was given ample opportunity to discontinue [her] involvement in unlawful drug-related activity . . . [De Veal's] repeated criminal behavior is the kind Congress targeted for imposition of a harsher
4 We agree with our colleagues in the Seventh Circuit that drug
trafficking recidivism is to be abjured:
A career criminal is incorribible, undeterrable, recidivating, unresponsive to the 'specific deterrence' of having been previously convicted -- and that is a good description of a man[/woman] who continues trafficking in narcotics after having been arrested and convicted of a similar crime. . . .
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-3786 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLA DENIZA MALCON DE VEAL,
Defendant-Appellant.
Appeal from the United States District Court For the Eastern District of Louisiana
(April 15, 1992)
Before POLITZ, Chief Judge, DAVIS and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:
Marla Denzia Malcon De Veal appeals her sentence after the
jury returned verdicts of guilty to charges of conspiracy to import
cocaine, importation of cocaine, and aircraft smuggling, in
violation of 21 U.S.C. §§ 963, 960(a)(1), 952(a); 18 U.S.C. § 2;
and 19 U.S.C. § 1590(a). The sole issue presented on appeal is
whether she had been convicted of a prior drug offense in Kansas state court. The trial court found that she had and imposed a
mandatory-minimum sentence of 20 years. Finding no clearly
erroneous finding of fact and no error of law, we affirm.
Background
De Veal was arrested at the New Orleans International Airport
after a flight from Costa Rica when inspectors found packages
containing cocaine taped to her body. She was charged and
convicted of conspiracy to import cocaine, its importation, and
smuggling cocaine aboard an aircraft. The sentencing guidelines
for an offense level of 32 and a criminal history category of II,
as computed in the presentence report, provide a sentencing range
of 135 to 168 months. The government filed a bill of information
reflecting a prior conviction in Kansas for drug trafficking.
Under 21 U.S.C. § 960(b)(1), the minimum mandatory sentence of ten
years was doubled because of the prior conviction.
The trial court considered De Veal's objections at sentencing,
accepted the bill of information, and found that the prior offense
had occurred. The court then sentenced De Veal to 240 months for
conspiracy and concurrent terms of 144 months on the importation
and aircraft smuggling counts, plus supervised release terms and a
fine. The sole issue raised on appeal is the propriety of the
enhancement under 21 U.S.C. §§ 960 and 962 based on the Kansas
conviction.
2 Analysis
We review de novo applications of the sentencing guidelines as
relates to the law. United States v. Otero, 868 F.2d 1412 (5th
Cir. 1989). Findings of fact are reviewed under the clearly
erroneous standard. United States v. Mourning, 914 F.2d 699 (5th
Cir. 1990).
The question before us is whether the Kansas conviction
constitutes a prior conviction within the meaning of 21 U.S.C.
§ 960(b)(1) which provides, in pertinent part, that when a person
commits a violation involving five kilograms or more of a
detectable amount of cocaine, "the person committing such violation
shall be sentenced to a term of imprisonment of not less than 10
years and not more than life . . ." Furthermore:
. . . If any person commits such a violation after one or more prior convictions for an offense punishable under this subsection, or for a felony under any other provision of this title or title II or other law of a State, United States, or foreign country relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not less than 20 years and not more than life imprisonment. . . .
For the purpose of section 960(b)(1), a conviction becomes
final when it is no longer subject to examination on direct appeal.
See United States v. Morales, 854 F.2d 65 (5th Cir. 1988).
De Veal's conviction was final because the period for seeking
appellate review of the state conviction had expired when she
committed the offense in the case at bar.
De Veal contends that her conviction in the state court of
Kansas in 1988 for conspiracy to sell cocaine and her present
3 convictions were all one episode of an ongoing conspiracy. De Veal
therefore argues that her earlier conviction does not qualify as a
"prior conviction" under 21 U.S.C. § 960(b)(1). We are not
persuaded.
The events leading up to the two convictions constitute two
distinct episodes.1 The time between the episodes was more than
two and a half years; the first episode occurred in January 1988,
the second in August 1990. The statutory offenses charged are
completely different; in the first episode De Veal was convicted of
conspiracy to sell and distribute cocaine in violation of state
law, K.S.A. 21-3302 and K.S.A. 65-4127a; in the second episode she
was convicted of federal violations of conspiracy to import
cocaine, importation of cocaine, and aircraft smuggling. The
places were geographically distant, Kansas and New Orleans. To
accept De Veal's interpretation of the statute would largely
undermine, if not in fact defeat, the purpose of section 906(b)(1)
to target and deter recidivism.2
1 "An episode is an incident that is part of a series, but forms a separate unit within the whole. Although related to the entire course of events, an episode is a punctuated occurrence with a limited duration . . . Such events occu[r] at distinct times. . . ." United States v. Hughes, 924 F.2d 1354, 1361 (6th Cir. 1991).
2 "Our finding that the state felony conviction is a proper predicate for sentencing enhancement within the meaning of [§ 960(b)(1)] is further supported by an examination of the facts of this case in light of the statute's legislative purpose to punish recidivists more severely. After [De Veal's] state felony conviction, which became final in [December] 1988, [De Veal] was given ample opportunity to discontinue [her] involvement in unlawful drug-related activity . . . [De Veal's] repeated criminal behavior is the kind Congress targeted for imposition of a harsher
4 We agree with our colleagues in the Seventh Circuit that drug
trafficking recidivism is to be abjured:
A career criminal is incorribible, undeterrable, recidivating, unresponsive to the 'specific deterrence' of having been previously convicted -- and that is a good description of a man[/woman] who continues trafficking in narcotics after having been arrested and convicted of a similar crime. . . . The guidelines should not be interpreted to give criminals an incentive to enter conspiracies at the earliest possible opportunity.
United States v. Belton, 890 F.2d 9, 10 (7th Cir. 1989).3 De Veal
had the opportunity to discontinue her involvement in drug
trafficking after her 1988 conviction but declined to do so. She
must stand accountable for her intentional criminal actions.
AFFIRMED.
penalty by [§ 960(b)(1)]." Hughes, 924 F.2d at 1362.
3 In Belton the defendant was sentenced under U.S.S.G. § 4B1.1 as a career offender, based on prior convictions. The defendant argued that one of the convictions used to bring him within 4B1.1 was not a prior conviction because the offense occurred during the alleged conspiracy which was the basis for his later conviction. The court stated that: "Continuing to participate in a drug conspiracy after having been convicted of a drug offense manifests a propensity for recidivism as plainly as if the conspiracy had been started from scratch." Id. at 10. The court held that the two prior convictions were separate from one another and affirmed the defendant's conviction.