United States v. Dario Restrepo

903 F.2d 648 58 USLW 2707 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. Opinion Aug. 24, 1989. Opinion Withdrawn March 2, 1990. Decided May 8, 1990. 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. BOOCHEVER, 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 primary issue before us is whether the district court erred in considering conduct that did not result in Restrepo's conviction in determining his offense level under the Sentencing Guidelines. We also consider the standard of proof to be used to establish a factor enhancing a sentence under the Guidelines, and whether the application of the June 15, 1988 Guidelines to Restrepo violated the ex post facto clause. We affirm. BACKGROUND 2 On March 8, 1988, Restrepo was indicted on…

Dario Restrepo appeals his forty-six month prison sentence imposed after he was convicted of two counts of distribution of cocaine. The primary issue before us is whether the district court erred in considering conduct that did not result in Restre- *650 po’s conviction in determining his offense level under the Sentencing Guidelines. We also consider the standard of proof to be used to establish a factor enhancing a sentence under the Guidelines, and whether the application of the June 15, 1988 Guidelines to Restrepo violated the ex post facto clause. We affirm.

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) (1988). 1 His codefendant, Judith DeMaldo-nado, 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). DeMal-donado pled guilty to counts II, III, and IV and agreed to testify against Restrepo in exchange for a lighter sentence. At trial, DeMaldonado testified that Restrepo provided all the cocaine that she had sold, and an additional…

concurring:

I concur in Judge Boochever’s opinion. At the same time it seems appropriate to note that Judge Pregerson’s misgivings deserve serious consideration. They cannot be controlling because, as the opinion of the court makes clear, we are bound by a *657 statutory scheme and by Supreme Court precedent. No doubt, as Judge Pregerson suggests, plea agreements in the future will be structured to prevent what happened to Restrepo in this case.

dissenting:

I dissent. For the reasons stated in the original opinion, United States v. Restrepo, 883 F.2d 781, 783-86 (9th Cir.1989), I believe that the Guidelines are ambiguous as to whether criminal conduct of which defendant Restrepo is not convicted can be aggregated to determine his total offense level.

The majority ignores the profound changes the Guidelines have brought about in federal criminal sentencing. Under the old sentencing scheme, trial judges had wide discretion in fixing appropriate sentences. Trial judges were permitted to take into account a variety of relevant unchallenged information, contained in the sentencing report, concerning defendants’ background and past behavior. Challenged information, when proved by a preponderance of the evidence, was also taken into account in imposing sentence. In most cases, no hearing was held on challenged information. Rather, pursuant to the Federal Rules of Criminal Procedure, the trial judge just considered the unchallenged information, and would often disregard challenged information. See Fed.R.Crim.P. 32(c)(3)(D). 1 The judge, in the exercise of his or her discretion and depending on the circumstances of the…