United States v. Craig Von Mitchell

Craig Von Mitchell appeals his sentence imposed under the United States Sentencing Guidelines following our remand in United States v. Shields, 939 F.2d 780 (9th Cir.1991). Von Mitchell’s original appeal was consolidated with that of codefendant Jon Barton Shields. Von Mitchell was convicted by guilty plea of introducing steroids in interstate commerce without a prescription and aiding and abetting in violation of 21 U.S.C. §§ 331 (a), 333(b) and 18 U.S.C. § 2 . Von Mitchell contends the district court erred by relying on conduct contained in dismissed counts of the indictment when deciding to depart from the sentencing range established by application of U.S.S.G. § 2N2.1 (“Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product”). Alternatively, Von Mitchell argues that the district court should have applied U.S.S.G. § 2Dl.l(c)(19), which, as revised after the original sentencing date, would apply to the offense of conviction. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I

Upward Departure

On Von Mitchell’s first appeal, we held that the district court could properly consider the conduct…