dissenting:

James Douglas McQuisten was found guilty of, inter alia, violating 21 U.S.C. § 846 , for both conspiring to and attempting to manufacture methamphetamine, a controlled substance within the meaning of 21 U.S.C. § 841 (a)(1). The majority affirms the district court’s imposition of separate, but concurrent, fifteen year prison terms for each. Because the majority opinion is not consistent with either congressional intent or prior decisions of this circuit, I dissent.

*869 We have previously noted that this section is ambiguous in that the “statute seems to create only a single offense, denominated ‘attempt or conspiracy.’ ” United States v. Taylor, 716 F.2d 701 , 712 n. 6 (9th Cir.1983). This ambiguity is clarified somewhat by examining the legislative history of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, 84 Stat. 1242 (codified as amended in scattered sections of 21 U.S.C.).

According to President Nixon in his message accompanying the legislation in 1969, the purpose of the Act was to respond to the drug problem with a “concerted national policy.” Combatting Drug Abuse, H.R. Doc. No. 138, 91st Cong., 1st Sess. (July 14, 1969). As Attorney General Mitchell testified to the House Committee on Ways and Means, the “major law enforcement effort against the street pusher and the middleman had been left to the jurisdiction of the State and local governments.” Controlled Dangerous Substances, Narcotics and Drug Control Laws: Hearings Before the Committee on Ways and Means, 91st Cong., 2d Sess. 234 (1970). This concerted national policy attempted to create a uniform system of national enforcement by expanding the coverage or scope of the federal narcotics laws and encompassing the multiple strands of federal laws and regulations governing controlled substances in one Act.

At the time the Act was adopted, conspiracies to sell or import controlled substances were federal offenses, although “[attempts to commit an offense [were] not punishable under current law.” Section-By-Section Analysis of H.R. 17463, Ways and Means Hearings 223 (prepared by John E. Ingersoll, Director, Bureau of Narcotics and Dangerous Drugs). While there was federal law governing conspiracies for the sale or illicit manufacture of controlled substances, attempts were punishable only under state law and hence the treatment of attempts varied substantially from state to state.

Congress’ intent in enacting § 846 would seem to have been to close the loophole regarding “attempts” in our national drug enforcement statutes as part of its comprehensive effort to render all aspects of drug trafficking contrary to federal law. Thus, Congress made attempts “punishable” in order to promote uniformity and to improve the effectiveness of law enforcement. In other words, the purpose of the statute was to ensure that a person attempting to commit a narcotics offense would not escape punishment entirely simply because the attempt was aborted; the purpose was not to provide for multiple punishment when a conspiracy and an attempt occured simultaneously. The placement of both conspiracy and attempt together in one provision supports the conclusion expressed above. The statutory framework indicates strongly that Congress’ primary concern was ensuring that all persons who commit criminal acts in the narcotics area would be punished, even if their acts fell short of constituting substantive offenses.

If a conspiracy ends and an attempt occurs subsequently, each is punishable under § 846. As the Supreme Court has stated, section 846 prescribes “an identical range of punishment for a person convicted of participation in a major trafficking conspiracy, and for another person convicted of an unsuccessful attempt to manufacture or distribute a small amount of a controlled substance.” Bifulco v. United States, 447 U.S. 381, 399 , 100 S.Ct. 2247, 2258 , 65 L.Ed.2d 205 (1980). Here, however, as was the case in United States v. Touw, 769 F.2d 571 (9th Cir.1985), the defendant’s attempt to commit a narcotics offense constituted a part of a conspiracy in which he was then engaged.

Our prior decisions have established the rule that if a defendant engages in a single course of action, punishment for both conspiracy and attempt under § 846 is inappropriate, although convictions of both conspiracy and attempt are permissible. See Touw, 769 F.2d at 574 ; United States v. Taylor, 716 F.2d at 712 n. 6. In Touw , appellants both conspired to and attempted to purchase marijuana from Drug Enforcement Administration (DEA) agents. When *870 Touw and his co-defendants produced $117,000 to purchase 300 pounds of marijuana, all were arrested by DEA agents. This arrest occurred after almost a year of contact between Touw and the undercover DEA agents. The conspiracy in Touw continued over a substantial period and the attempt was committed within the time and scope of the conspiracy. We held that the defendants had been properly charged with both counts even though the defendants had engaged in a single course of conduct. Nevertheless, reviewing the case law in our circuit, we noted that “we found no Congressional intent to punish the defendant more than once for the same criminal undertaking.” Id. at 574 (citing United States v. Palafox, 764 F.2d 558, 562 (9th Cir.1985) (en banc)). Similarly, Judge Fletcher noted in United States v. Taylor that “a defendant may not be punished for both attempt and conspiracy based upon a single course of conduct merely because the elements of both offenses are present.” 716 F.2d at 713 (emphasis in original) (concurring opinion). See also 716 F.2d at 712 n. 6 (majority opinion).

Part of the reason underlying the rule we have heretofore followed in this circuit is the fact that a conspiracy frequently, if not almost necessarily, involves an attempt. In order to prove the existence of a conspiracy, some overt act by the defendant in furtherance of the objective of the conspiracy is required. The difference between an overt act evidencing that a conspiracy has been implemented in part and an act sufficient to constitute an attempt is one of degree only. On the other hand, the line between a conspiracy and the commission of the substantive offense is clear. Accord United States v. Washington Water Power Co., 793 F.2d 1079 (9th Cir.1986). Multiple punishment of the overt act/attempt and conspiracy is unnecessary to effectuate Congress’ desire to punish violators of § 846.

As we noted in Taylor , a case of the type before us is “suitable for application of the doctrine of lenity.” 716 F.2d at 712 n. 6. The doctrine constitutes a rule of statutory construction that guides courts in the interpretation of both the “substantive ambit of criminal prohibitions [and] also [ ] the penalties they impose.” It provides that a court should resolve doubts in favor of the criminal defendant. Bifulco, 447 U.S. at 387 , 100 S.Ct. at 2252 . As Justice Rehnquist stated in Albernaz v. United States, lenity is “an aid for resolving ambiguity.” 450 U.S. 333, 342 , 101 S.Ct. 1137, 1143 , 67 L.Ed.2d 275 (1981). Here we unquestionably are faced with an ambiguous statutory provision. In cases involving one course of conduct violative of the “attempt or conspire” provision of § 846, the rule of lenity is applicable and the defendant should not be subjected to multiple punishment.

I would remand for resentencing.