United States v. Dario Restrepo

883 F.2d 781 2 Fed.Sent.R. 131 UNITED STATES of America, Plaintiff-Appellee, v. Dario RESTREPO, Defendant-Appellant. No. 88-3207. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 6, 1989. Decided Aug. 24, 1989. Ted J. Stepovich, Fairbanks, Alaska, for defendant-appellant. Stephen Cooper, Asst. U.S. Atty., Fairbanks, Alaska, for plaintiff-appellee. Appeal from the United States District Court for the District of Alaska. Before PREGERSON, BOOCHEVER and NOONAN, Circuit Judges. PREGERSON, Circuit Judge: 1 Dario Restrepo appeals his forty-six month prison sentence imposed after he was convicted of two counts of distribution of cocaine. The appeal presents the following question concerning the interpretation of the new Sentencing Guidelines 1 ("Guidelines"): In sentencing Restrepo, did the district court err in construing the Guidelines' Multiple Counts section (Chapter Three, Part D) to apply to conduct that did not result in his conviction. We conclude that conduct that does not result in a criminal conviction should not be considered under the Multiple Counts section in fixing the appropriate guideline range for a narcotics offense. We therefore reverse and…

Dario Restrepo appeals his forty-six month prison sentence imposed after he was convicted of two counts of distribution of cocaine. The appeal presents the following question concerning the interpretation of the new Sentencing Guidelines 1 (“Guidelines”): In sentencing Restrepo, did the district court err in construing the Guidelines’ Multiple Counts section (Chapter Three, Part D) to apply to conduct that did not result in his conviction. We conclude that conduct that does not result in a criminal conviction should not be considered under the Multiple Counts section in fixing the appropriate guideline range for a narcotics offense. We therefore reverse and remand to the district court for resentenc-ing.

BACKGROUND

On March 8, 1988, Restrepo was indicted on two counts of distribution of cocaine (counts I and II) under 21 U.S.C. § 841 (a)(1). 2 His co-defendant, Judith De-Maldonado, also was charged with distribution of cocaine in count II. Additionally, she was indicted for possession of cocaine with intent to distribute (counts III and IV) in violation of 21 U.S.C. § 841 (a)(1). De-Maldonado pled guilty to counts II, III, and IV and agreed to testify against Restrepo in…

dissenting:

Because I believe the Sentencing Guidelines, read in conjunction with the commentary sections, are not ambiguous as to whether conduct of which the defendant is not convicted can be aggregated to determine the total offense level, I respectfully dissent.

*787 “The [Supreme] Court has emphasized that the ‘touchstone’ of the rule of lenity ‘is statutory ambiguity.’ ” Bifulco v. United States, 447 U.S. 381, 387 , 100 S.Ct. 2247, 2252 , 65 L.Ed.2d 205 (1980) (quoting Lewis v. United States, 445 U.S. 55, 65 , 100 S.Ct. 915, 920 , 63 L.Ed.2d 198 (1980)). “‘This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.’ ” Id. (emphasis added) (quoting Ladner v. United States, 358 U.S. 169, 178 , 79 S.Ct. 209, 214 , 3 L.Ed.2d 199 (1958)). If the intent is clear, however, courts cannot “manufacture ambiguity in order to defeat that intent.” Id.

I could agree with the majority opinion were it not for the amendments to the commentary in 1988. 1 The commentary to section 1B1.3 provides that:…