USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1391
UNITED STATES,
Appellee,
v.
GEORGE CALVIN BEASLEY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Jeffrey A. Lipow with whom Lipow, Barton & Harris was on brief
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for appellant.
Jeffrey A. Locke, Assistant United States Attorney, with whom A.
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John Pappalardo, United States Attorney, was on brief for appellee.
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December 21, 1993
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BREYER, Chief Judge. George Beasley appeals his
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conviction for possessing heroin with intent to distribute
it, 21 U.S.C. 841(a)(1), and his related twenty-two year
prison sentence. His most important argument focuses upon
the lawfulness of the Sentencing Guidelines' "career
offender" provision, which increases the guideline prison
term for offenders with two previous "controlled substance"
convictions. U.S.S.G. 4B1.1. In his view, the relevant
authorizing sentencing statute, 28 U.S.C. 994(h), permits
the "career offender" guideline to take account of previous
federal drug convictions, but not of convictions under state
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drug laws. Like the two other circuits that have considered
this argument, we reject it. United States v. Rivera, 996
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F.2d 993 (9th Cir. 1993); United States v. Whyte, 892 F.2d
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1170 (3d Cir. 1989), cert. denied, 494 U.S. 1070 (1990); see
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also United States v. Dyer, No. 93-1045 (1st Cir. June 18,
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1993) (per curiam). And, because we find Beasley's other
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arguments unconvincing, we affirm the district court's
judgment.
I
Background
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On January 25, 1991, a customs inspector at Newark
Airport noticed what turned out to be heroin leaking from a
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puncture hole in a suitcase. She stopped the apparent owner
of the suitcase, Habib Makdessi, who, eventually, agreed to
help agents apprehend others involved in an elaborate plot
to smuggle heroin from Beirut to, and through, Boston.
Agents flew with Makdessi and the suitcase to Boston and
checked into a hotel, where, Makdessi had told the agents,
he would receive further instructions. After about one
week, during which Makdessi had various phone conversations
related to delivery of the suitcase, Makdessi received an
authoritative call, which agents monitored, telling him that
he should give the heroin-filled suitcase to a person who
would come to Makdessi's room, identify himself as "Paul,"
say that "Ahmed sent me," and give Makdessi $20,000. During
that conversation, Beasley knocked on the door, entered the
apartment, told Makdessi that "Ahman sent me," identified
himself as "Paul," and gave Makdessi $20,000. Makdessi gave
Beasley the suitcase, and he told Beasley that it contained
"a lot" of heroin. Makdessi added that the suitcase had
been punctured and was leaking heroin. He gave Beasley a
shower cap filled with some of the heroin that had spilled.
Beasley lifted the suitcase and shook it. Government
agents, who had monitored the drug delivery with hidden
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cameras and audio recorders, arrested Beasley as he left
with the suitcase.
After Beasley's conviction, the sentencing court
turned to the Guidelines. It found that Beasley possessed
(with intent to distribute) just over three kilograms of
heroin, that Beasley had one previous conviction for
violating a federal drug law (for possessing, with intent to
distribute, about 25 grams of heroin), and that Beasley had
one previous conviction for violating a state drug law (for
selling about one-half gram of heroin). Ordinarily, the
amount of the drug and two prior felony convictions would
produce a Guideline sentencing range of 188 to 235 months
imprisonment (Offense Level 34, Criminal History Category
III). U.S.S.G. 2D1.1(c)(5), 4A1.1. But, because
Beasley's "two prior felony convictions" were for "a
controlled substance offense," the court instead applied the
special "career offender" guideline. U.S.S.G. 4B1.1 (see
appendix for the full text). That guideline applies to an
offender who meets its "career offender" definition, which,
for present purposes, includes a person convicted of a
"controlled substance offense" who also "has at least two
prior felony convictions of . . . a controlled substance
offense," which latter term
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means an offense under a federal or
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state law prohibiting the manufacture,
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import, export, distribution, or
dispensing of a controlled substance . .
. or the possession of a controlled
substance . . . with intent to
manufacture, import, export, distribute,
or dispense.
U.S.S.G. 4B1.2(2) (emphasis added).
The special "career offender" guideline contains a
table with offense levels geared to the maximum sentence in
the statute of conviction. It says that the table "shall
apply" to a "career offender" if the table level is "greater
than the offense level otherwise applicable." The "career
offender" guideline also specifies that a "career offender's
criminal history category in every case shall be Category
VI."
At the sentencing hearing, the parties agreed that
the drug statute subjected Beasley to a maximum penalty of
forty years imprisonment. And, the offense level table
provides an offense level of 34 for a career offender, who,
like Beasley, was subject to a maximum penalty of "25 years
or more" (but less than life). Because the ordinary drug
conviction guideline (applicable to an offender with just
over three kilograms of heroin) also specifies an offense
level of 34, U.S.S.G. 2D1.1(c)(5), the table in the
"career offender" guideline made no difference. The
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requirement that a "career offender's criminal history
category" must be "Category VI," however, did make a
difference, for it increased Beasley's guideline sentencing
range, from one of 188 to 235 months, to one of 262 to 327
months, thereby authorizing the 22-year sentence that the
district court imposed.
Beasley, as we have said, appeals both his
conviction and his sentence. (We note, parenthetically,
that the drug statute, in fact, seems to subject an offender
such as Beasley to a maximum term of life imprisonment, not
forty years. See 21 U.S.C. 841(b)(1)(B). But, in light
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of the government's sentencing concession in the district
court, we assume no error in the point. And, we shall
consider the sentencing aspect of the appeal on that
assumption.)
II
The Career Offender Guideline's Prior Drug Offense
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Definition
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Beasley's most important argument concedes that
the district court correctly applied the guidelines as they
are written. He claims, however, that the Sentencing
Commission lacked the legal power to define a prior
conviction for a "controlled substance offense" to include
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state, as well as federal, convictions. Beasley notes that
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the Commission itself indicated that it meant its "career
offender" guideline to reflect the requirements of a
particular statutory provision, namely 28 U.S.C. 994(h).
See U.S.S.G. 4B1.1 Background statement (explaining that
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the "career offender" guideline meets 994(h)'s requirement
that the guidelines "specify" for certain "career offenders"
a "sentence . . . at or near the maximum term authorized" by
statute). He urges us to judge the lawfulness of the
guideline on the basis of the legal ground upon which the
Commission explicitly (and apparently exclusively) rested
it. Cf. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)
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(reviewing agency action on the basis of the agency's actual
rationale). And, he says, the statute's language is not
consistent with the Commission's decision to include state
"controlled substance" convictions.
That statutory language says that an offender
should be treated as a "career offender" if, among other
things, he has "previously been convicted of two or more
prior felonies, each of which is"
(A) a crime of violence; or
(B) an offense described in section 401
of the Controlled Substances Act (21
U.S.C. 841), sections 1002(a), 1005, and
1009 of the Controlled Substances Import
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and Export Act (21 U.S.C. 952(a), 955
and 959), and section 1 of the Act of
September 15, 1980 (21 U.S.C. 955a).
28 U.S.C. 994(h)(2). Part (B) of this definition,
defining prior drug convictions, unlike part (A), lists
specific federal statutes. That fact, in Beasley's view,
means that Part (B) of the definition does not include
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convictions under state statutes. And, he says, that
exclusion makes sense, for state drug convictions, compared
with federal drug convictions, typically involve smaller
amounts of drugs.
We, like the other two circuits that have
considered this question, do not accept Beasley's argument,
for three basic reasons. First, although the language of
Part (B), unlike Part (A), does refer to specific federal
statutes, if one reads its words literally, it does not
exclude, but rather includes, convictions under state law.
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Part (B) refers to "an offense described in" the particular
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specified federal statutes. Those statutes describe
behavior commonly called "drug trafficking." They refer to
such activities as the making, importing, exporting,
distributing, or dispensing, of drugs, and possessing drugs
with an intent to engage in these activities. They do not
refer to simple possession of drugs (except when entering or
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leaving the country). A literal reading of the statute
would include a conviction under a state law that
criminalizes some, or all, of these same activities, for
such a state law would create "an offense described in" the
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federal statute.
Second, examination of the purpose of the
statutory provision supports the literal reading just
described. Congress wrote that the provision's objective
was to ensure that "substantial prison terms [are] imposed
on repeat violent offenders and repeat drug traffickers."
S. Rep. No. 225, 98th Cong., 2d Sess. 175 (1984), reprinted
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in 1984 U.S.C.C.A.N. 3182, 3358. Beasley's interpretation
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would frustrate this objective, for, on that interpretation,
the statute would not require a "substantial prison term"
for a "repeat drug trafficker" apprehended by state
authorities and punished under state, rather than federal,
law. We have found nothing in the history of the
legislation, nor in its language, that explains why Congress
would want to insist (as it did) upon a "substantial prison
term" for an offender who repeats earlier violent conduct
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(irrespective of jurisdiction) but not want to insist upon a
similar "substantial prison term" for an offender who
similarly repeats earlier drug trafficking conduct.
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Third, Beasley's interpretation would create a
significant anomaly in a guideline system, the primary
objective of which is to create uniformity of sentencing
treatment. See Mistretta v. United States, 488 U.S. 361,
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365-66 (1989); 28 U.S.C. 991(b)(1)(B) (guidelines should
"avoid[] unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
criminal conduct"). In seeking uniformity, to distinguish
among offenders on the basis of different behavior, or
different criminal backgrounds, often makes sense, when
considered in light of the basic purposes of punishment
(e.g., deterrence, "just deserts," incapacitation, or
rehabilitation, see 18 U.S.C. 3553(a)). To distinguish
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among them on the basis of which jurisdiction happened to
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punish the past criminal behavior seems (in the absence of
some special circumstance) close to irrational. Compare
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U.S.S.G. 4A1.1 Background statement (prior convictions for
criminal history purposes "may represent convictions in the
federal system, fifty state systems, the District of
Columbia, territories, and foreign, tribal, and military
courts").
Beasley argues, to the contrary, that state drug
trafficking convictions often involve smaller amounts of
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drugs. We do not know the extent to which that is so. But,
in any event, Congress does not normally key recidivism
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punishments to the amount of drugs involved in earlier,
predicate convictions. See, e.g., 28 U.S.C. 994(h); 21
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U.S.C. 841(b). And, to read this statute as representing
an effort to do so seems at least as likely to produce a
crazy-quilt of punishment results, as to connect similar
punishments rationally to similar past behavior.
Beasley's strongest argument is that Congress, in
other statutes, has written the term "state law" explicitly
when it has wanted to include convictions under state law.
See, e.g., 28 U.S.C. 994(i); 21 U.S.C. 841(b); 18 U.S.C.
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924(e). In fact, until Congress amended 21 U.S.C.
841(b) specifically to allow sentence enhancements based on
prior state law drug convictions, courts had held that the
statute did not apply to those state drug convictions. See,
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e.g., United States v. Gates, 807 F.2d 1075, 1082 (D.C.
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Cir. 1986), cert. denied, 481 U.S. 1006 (1987); United
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States v. Johnson, 506 F.2d 305, 307 (7th Cir. 1974), cert.
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denied, 420 U.S. 1005 (1975). However, the language used in
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the earlier version of 841(b) is different from the
"described in" language of 994(h). See 21 U.S.C.
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841(b)(1)(A) (referring to "prior convictions . . . for an
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offense punishable under . . . any . . . other law of the
United States relating to narcotic drugs" (before
amendment)). Furthermore, the legislative history of former
841(b)(1)(A), unlike the legislative history here, makes
clear that Congress intended that enhancement provision to
apply only to a prior federal conviction. See Gates, 807
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F.2d at 1082. Congress can embody a similar scope-of-
coverage intent in different ways in different statutes.
The upshot is that the statute's purpose, and the
purpose of the sentencing laws of which that statute is a
part, both support the Commission's interpretation of the
statute. The language of the statute, when read literally,
favors that same conclusion. We find the arguments to the
contrary plausible, but ultimately not convincing. We
therefore conclude that the statutory provision authorizes
the Commission to define "career offender" as it has done,
that is, to include those with prior state law convictions
for offenses of the sort defined in the listed federal
statutes.
III
Other Arguments
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1. The Amount of Heroin. Beasley was sentenced
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under the belief that the applicable offense statutory
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maximum was 40 years, and thus, under the career offender
guideline, offense level 34 applied. Beasley argues that
the court applied the wrong statutory maximum because the
provision it used, 841(b)(1)(B), applies only if the
violation involved 100 grams or more of heroin. And, he
says that the evidence did not support the district court's
finding that he knew about the 3 kilograms of heroin.
Rather, he says that the evidence shows that he only knew
about 5 grams of heroin. However, even if it were relevant
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for sentencing purposes that Beasley believed the suitcase
contained only five grams of heroin, the same offense level
would apply. See 21 U.S.C. 841(b)(1)(C) (30 years maximum
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sentence if repeat offender and violation involved less than
100 grams of heroin); U.S.S.G. 4B1.1(b) (specifying level
34 if statutory maximum for offense exceeds 25 years).
Regardless, the evidence was more than sufficient
to support the district court's factual conclusion that
Beasley knew the suitcase contained about three kilograms of
heroin. The complex nature of the crime, the elaborate
delivery precautions, the suitcase that in fact contained
more than three kilograms of heroin, the fact that Makdessi
told him the suitcase contained a lot of heroin, the fact
that heroin had leaked out and was contained in a shower
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cap, and his having lifted and shaken the suitcase, together
provide more than enough support for a finding that he
actually knew the transaction involved more than one
kilogram. The only contrary evidence lies in the fact that
he paid only $20,000, far less than the wholesale value of
one kilogram. Yet, nothing in the record suggests that the
$20,000 sum was meant to be more than a partial payment.
Thus, this fact does not lead us to a contrary conclusion.
Because the record supports a finding of actual knowledge
(and because any error was harmless), we need not consider
other mental states and other circumstances. Cf. United
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States v. Ekwunoh, 813 F. Supp. 168, 179 (E.D.N.Y. 1993)
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(holding that, in some circumstances, defendant cannot be
sentenced for possessing more drugs than he reasonably
believed he possessed).
2. Ineffective Assistance of Counsel. Beasley
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says that his counsel was "ineffective" in failing to attack
the "chain of custody" receipts for the heroin, which
attack, in his view, represented his only hope of acquittal.
The record before us provides no basis for accepting his
"ineffective assistance" claim. The government introduced
what seems to be strong evidence of custody. The trial
court, as a general matter, praised counsel's performance.
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We do not normally consider claims of "ineffective
assistance" on direct appeal, for such claims may require a
court to go outside the trial record, for example, to
consider counsel's trial strategy. United States v. Mala,
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No. 91-2229, slip op. at 9-10 (1st Cir. Oct. 27, 1993). We
see no reason for making an exception to that rule in this
case.
3. Waiver of Counsel. In mid-trial Beasley asked
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the trial court to permit him to discharge his counsel and
proceed on his own. The trial judge warned Beasley about
the dangers of doing so. But, when Beasley persisted, he
granted Beasley's request, having asked counsel to remain to
advise Beasley if necessary. Beasley now argues that the
"totality of the circumstances" establish that Beasley did
not "knowingly and intelligently" waive his Sixth Amendment
right to counsel. See Farretta v. California, 422 U.S. 806,
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835 (1975); United States v. Hafen, 726 F.2d 21, 24-26 (1st
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Cir.), cert. denied, 466 U.S. 962 (1984); Maynard v.
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Meachum, 545 F.2d 273, 277-79 (1st Cir. 1976). He says that
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the record does not make it sufficiently clear that he "was
aware of the dangers and disadvantages of self
representation, the technical requirements of trial, and the
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potential penalties he was facing." Appellant's Opening
Brief at 29; see Maynard, 545 F.2d at 279.
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Having reviewed the record, we do not agree with
Beasley's conclusions. The district court clearly explained
the disadvantages of his choice and the technical nature of
the trial. The judge discussed in detail the calling of
witnesses, the presentation of closing arguments, and the
need to review jury instructions, all to help Beasley
understand the magnitude of what he proposed to do.
Moreover, Beasley's past record -- his two prior drug
convictions -- suggest some familiarity with the serious
nature of trials and their potential technicality.
Similarly, the fact that Beasley had previously received a
five-year sentence for violating the same statute, along
with the notice of enhanced sentence that the government
sent to Beasley and the detention hearing where the
government told Beasley he faced a possible life sentence,
all indicate that Beasley was aware of the potential
penalties he was facing. Beasley now says that he
erroneously thought he would not be permitted to testify
unless he dismissed his lawyer, but the record provides no
basis for the district court's having believed Beasley
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entertained that thought nor any objective basis for his
having done so.
Despite the court's explanation of disadvantages
of self-representation and the technicalities of the trial,
Beasley insisted, quite clearly, that he wanted to represent
himself. The trial court, therefore, properly permitted him
to do so and wisely asked his counsel to stay and offer
advice if necessary. We find no error.
4. Reasonable Doubt. Beasley argues that the law
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required the district court to define the term "reasonable
doubt" in its jury instructions. The court, however, gave
the type of instruction that this court approved in United
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States v. Olmstead, 832 F.2d 642 (1st Cir. 1987), cert.
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denied, 486 U.S. 1009 (1988). We have held that the law
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does not require a further, more detailed explanation.
United States v. Campbell, 874 F.2d 838, 843 (1st Cir.
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1989); Olmstead, 832 F.2d at 646.
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For these reasons, the judgment of the district
court is
Affirmed.
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Note: See slip opinion for copy of Appendix.
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