UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10933
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICTOR DEVANE DOMINO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
( August 22, 1995)
Before SMITH, WIENER, and DeMOSS, Circuit Judges.
WIENER, Circuit Judge.
Defendant-Appellant Victor Devane Domino appeals a final
judgment sentencing him under the 1993 version of the Sentencing
Guidelines to a total of ninety-six months in prison and a one-year
term of supervised release for an offense concluded in 1990. As we
determine that this sentence violates the ex post facto clause of
the United States Constitution, we vacate and remand to the
district court for resentencing pursuant to the 1989 version of the
Sentencing Guidelines.
I
FACTS AND PROCEEDINGS
Domino was indicted in May 1990, in a three-count indictment
charging (1) possession of phenylacetic acid with intent to
manufacture a controlled substance in violation of 21 U.S.C. §
841(d)(1) (Count One); and (2) unlawful use of a telephone to
facilitate the possession of a listed chemical with intent to
manufacture a controlled substance in violation of 21 U.S.C. §
843(b) (Counts Two and Three). In accordance with a plea
agreement, Count One was dismissed after Domino pleaded guilty to
the communication offense charged in Counts Two and Three. The
factual resume accompanying Domino's guilty plea stated the
following:
In the Dallas Division of the Northern District of Texas,
on March 16, 1990, at approximately 9:45 a.m. and on
March 16, 1990, at approximately 3:15 p.m. the defendant
used a communication facility, namely a telephone to call
an undercover agent with the Drug Enforcement
Administration (DEA) about purchasing phenylacetic acid,
a listed chemical, for the purpose of manufacturing a
controlled substance.
An addendum to the factual resume stated in relevant part:
The phenylacetic acid referred to in Counts 2 and 3 of
the Indictment and the Factual Resume, a one-hundred ten
pound drum of phenylacetic acid, was to be used to
manufacture amphetamine, a controlled substance.
Domino's sentencing hearing was scheduled for October 4, 1990,
but Domino did not appear for sentencing on either that day or the
next--the date to which his sentencing had been postponed. The
hearing was then postponed indefinitely and a warrant was issued
for Domino's arrest. Domino was eventually arrested and sentenced
in 1994.
A presentence investigation report (PSR) had been prepared in
1990 in anticipation of Domino's sentencing hearing scheduled for
that year (the 1990 PSR). The 1990 PSR was calculated pursuant to
the 1989 Sentencing Guidelines and established a base offense level
2
of thirty-two for Domino's sentence. The probation officer who
prepared the 1990 PSR noted in that report that the applicable
guideline for a violation of 21 U.S.C. § 843(b)--Domino's offense
of conviction--was U.S.S.G. § 2D1.6, which listed a base offense
level of twelve.1 The officer determined, however, that Domino's
guilty plea contained a stipulation that established the more
serious offense of possession under 21 U.S.C. § 841(d)(1). She
therefore calculated a base offense level of thirty-two--the base
offense level for the more serious offense--pursuant to U.S.S.G. §
1B1.2.2
Domino objected to the 1990 PSR, arguing that the base offense
level contained in that report was calculated on the basis of the
erroneous conclusion that he had stipulated to the more serious
offense of possession under 21 U.S.C. § 841(d)(1). Domino insisted
that he did not stipulate that he actually possessed the
phenylacetic acid in issue, only that he used the telephone to
facilitate possession.
Prior to Domino's sentencing hearing in 1994, the 1990 PSR was
updated to incorporate the 1993 version of the Sentencing
1
U.S.S.G. § 2D1.6 (1989).
2
See U.S.S.G. § 1B1.2 (1989) (directing court to determine the
offense guideline section most applicable to the offense of
conviction. "Provided, however, in the case of conviction by a
plea of guilty or nolo contendere containing a stipulation that
specifically establishes a more serious offense than the offense of
conviction, determine the offense guideline section. . . most
applicable to the stipulated offense."); see also U.S.S.G. § 2D1.1
(1989) (applicable guideline for more serious offense of unlawful
manufacturing, importing, exporting, or trafficking, including
possession with intent to commit these offenses).
3
Guidelines (the 1994 PSR).3 In contrast to the 1989 version of the
guidelines, Section 2D1.6 of the 1993 Sentencing Guidelines
directed the court to calculate the base offense level for the
offense underlying the communication offense, rather than assign a
base offense level of twelve. Concluding that the offense level
computations were more favorable to Domino under the 1993
Guidelines than the 1989 Guidelines,4 the probation officer
calculated a base offense level of twenty-eight (the base offense
level for the underlying offense of possession).5
Domino raised the same objection to the 1994 PSR that he had
to the 1990 PSR, arguing essentially that, as he never stipulated
to the more serious offense of possession in 1990, the correct base
offense level for the 1990 PSR was twelve, which produces a more
favorable sentence than a sentence under the 1993 Sentencing
Guidelines. The district court rejected Domino's argument and
determined that the total offense level for Domino's conviction was
thirty. The court sentenced Domino to forty-eight months on each
count of Counts Two and Three to run consecutively for a maximum of
3
See U.S.S.G. § 1B1.11 (a) (1993) (directing court to apply
sentencing guidelines in effect on date that defendant is
sentenced).
4
See U.S.S.G. § 1B.11 (b) (1993):
(b) If the court determines that use of the Guidelines
Manual in effect on the date that the defendant is
sentenced would violate the ex post facto clause of the
United States Constitution, the court shall use the
Guidelines Manual in effect on the date that the offense
of conviction was committed.
5
See U.S.S.G. § 2D1.11(a)(1) (1993) (base offense level for
unlawful possession of over 20 KG of phenylacetic acid).
4
ninety-six months, with a term of supervised release of one year on
each count, to run concurrently. Domino filed a timely notice of
appeal.
II
ANALYSIS
A. STANDARD OF REVIEW
We review challenges to the district court's application and
legal interpretation of the Sentencing Guidelines de novo.6 We
review for clear error a district court's findings of fact as they
pertain to a defendant's sentence, but review de novo a district
court's determination of the meaning and effect of any factual
stipulations on a sentence.7
B. STIPULATION? MISCALCULATION? EX POST FACTO VIOLATION?
Domino asserts that his sentence, which was calculated
pursuant to the 1993 Sentencing Guidelines, violates the ex post
facto clause of the United States Constitution. He insists that
the 1989 Sentencing Guidelines--the guidelines in effect on the
date of his offense of conviction--if calculated correctly, would
have resulted in a sentence more favorable to him, and therefore
should have been used for sentencing rather than the less favorable
1993 Sentencing Guidelines. Specifically, Domino contends that,
had the probation officer calculated correctly in the 1990 PSR a
6
United States v. Radziercz, 7 F.3d 1193, 1195 (5th Cir.
1993), cert.denied, 114 S.Ct. 1575 (1994); United States v. Leed,
981 F.2d 202, 207 (5th Cir.) (citing United States v. Shell, 972
F.2d 548 (5th Cir. 1992)), cert. denied, 113 S.Ct. 2971 (1993).
7
Braxton v. United States, 500 U.S. 344, 350 (1991).
5
base offense level of twelve as directed by U.S.S.G. § 2D1.6--the
applicable guideline for a communication offense under 21 U.S.C. §
843(b)--rather than applying erroneously--pursuant to U.S.S.G. §
1B1.2(a)--the base offense level for the allegedly stipulated, more
serious offense of possession, his sentence under the 1989
Sentencing Guidelines would have been more favorable than his
sentence under the 1993 version of the guidelines.
Section 1B1.11 of the Sentencing Guidelines instructs a
sentencing court to use the guidelines manual in effect on the date
that a defendant is sentenced, unless the court determines that
"use of the Guidelines Manual in effect on the date that the
defendant is sentenced would violate the ex post facto clause of
the United States Constitution," in which case the court should use
the version of the guidelines in effect on the date that the
offense of conviction was committed.8 "A criminal law is ex post
facto if it is retrospective and disadvantages the offender by
altering substantial personal rights."9 A sentence that is
increased pursuant to an amendment to the guidelines effective
after the offense was committed violates the ex post facto clause.10
If, as Domino asserts, the correct base offense level for his
sentence under the 1989 Sentencing Guidelines is twelve, then the
district court's application of the 1993 Sentencing Guidelines to
8
U.S.S.G. § 1B1.11 (1993).
9
United States v. Gonzales, 988 F.2d 16, 18 (5th Cir.) (citing
Miller v. Florida, 482 U.S. 423, 430 (1987)), cert. denied, 114
S.Ct. 170 (1993).
10
United States v. Suarez, 911 F.2d 1016, 1022 (5th Cir. 1990).
6
his sentence imposed in 1994, with its base offense level of
twenty-eight, violates the ex post facto clause.
The Sentencing Guidelines direct a sentencing court to
calculate the appropriate base offense level for a sentence by
determining which section of the guidelines is most applicable to
the offense of conviction.11 U.S.S.G. § 1B1.2(a) instructs,
however, that when a defendant is convicted on the basis of a
guilty plea containing a stipulation that specifically establishes
a more serious offense than the offense of conviction, the
sentencing court must determine and apply the guideline most
applicable to the more serious offense.12
Domino asserts that the probation officer who prepared his
1990 PSR erred in applying U.S.S.G. § 1B1.2(a) in that report after
concluding--incorrectly--that Domino's guilty plea contained a
stipulation that established the more serious offense of possession
under 21 U.S.C. § 841(d)(1). Domino argues that the facts
contained in the factual resume and amendment are the only factual
stipulations that he made, and insists that those facts stipulate
that he used a telephone to facilitate the possession of
11
U.S.S.G. § 1B1.2(a) (1993).
12
Id. The 1989 Sentencing Guidelines refer to a conviction by
"a plea of guilty or nolo contendere," whereas the 1993 Guidelines
refer to a "plea agreement (written or made orally on the record)."
Similarly, the 1989 application notes interpret this provision as
applying when "a stipulation as part of a plea of guilty or nolo
contendere specifically establishes. . .," whereas the 1993 version
refers to "a stipulation that is set forth in a written plea
agreement or made between the parties on the record during a plea
proceeding specifically establishes . . ." See U.S.S.G. § 1B1.2,
commentary note 1 (1989) and (1993).
7
phenylacetic acid, but do not specifically establish that he
actually possessed phenylacetic acid.13
The government does not attempt to argue that the plea
agreement or factual resume specifically establish facts showing
possession. Rather, after noting that Domino pleaded guilty to two
counts of a communication offense under 21 U.S.C. § 843(b), the
government argues that an essential element of that offense is that
the underlying drug offense was in fact committed. The foundation
of the government's argument, therefore, is that, "where guilt of
the offense of conviction depends on guilt of the underlying
offense, a U.S.S.G.§ 1B1.2(a) stipulation should be held to exist."
The government offers three bases on which it supports its
assertion that the district court was justified in ascertaining
that Domino's stipulated conduct constituted the more serious
offense of possession with intent to manufacture. First, the
government asserts that the language of the indictment states that
Domino intentionally and knowingly used the telephone to facilitate
the possession of the phenylacetic acid.14 Second, the government
contends that the only reason that the amendment to the factual
resume was executed was to establish the quantity of phenylacetic
13
Domino does not dispute that § 1B1.2 is applicable in
circumstances when a more serious offense is stipulated under 21
U.S.C. § 841(d)(1). He merely asserts that in his case his guilty
plea did not contain a stipulation to the more serious offense.
14
Counts Two and Three charge that Domino "intentionally and
knowingly did unlawfully use a communication facility, that is, a
telephone, in facilitating the possession of phenylacetic acid. .
. in that [Domino] used said telephone to discuss with a person
known to the grand jury, the sale and possession of phenylacetic
acid."
8
acid involved in order to determine the applicable guideline for
sentencing under the more serious offense.15 Third, the Government
insists that Domino affirmed that he understood the nature of the
charges to which he pleaded guilty and that he understood that his
plea relieved the government of its burden of proving the crimes
against him.
Contrary to the government's contention, a conviction for a
communication offense under 21 U.S.C. § 843(b) does not necessarily
import a more serious offense of possession under 21 U.S.C. §
841(d)(1). In United States v. Martinez,16 we observed that a
conviction under 21 U.S.C. § 843(b) requires a different element of
proof than a conviction under 21 U.S.C. § 841(d)(1).17 A conviction
under § 843(b) requires proof that a defendant knowingly and
intentionally used a communications facility to facilitate the
commission of a drug offense,18 whereas a conviction under § 841(d)
requires proof that a defendant knowingly and intentionally
15
The government suggests that, in light of the fact that in
1989 the base offense level for a § 843(b) communication violation
was 12, without any adjustment for quantity, the only reason for
stipulating the quantity of the listed chemical was for sentencing
under the stipulation provision of § 1B1.2. The government
contends that the fact that the amendment was executed shows that
the plea agreement did contemplate a stipulation to the more
serious offense and that Domino knew that he was stipulating to the
more serious offense when he executed the amendment.
16
950 F.2d 222 (5th Cir. 1991), cert. denied, 504 U.S. 926
(1992).
17
Id. at 224 (reviewing whether consecutive sentences under 21
U.S.C. § 841(d) and 21 U.S.C. § 843(b) violate rule against double
jeopardy).
18
21 U.S.C. § 843(b) (1984); Martinez, 950 F.2d at 224.
9
possessed a listed chemical with the intent to manufacture a
controlled substance.19 "Thus not every violation of § 843(b)
constitutes a violation of § 841(d), and vice versa."20 As a
conviction under 21 U.S.C. § 843(b) does not "depend" on a
conviction under 21 U.S.C. § 841(d), it does not follow that
Domino's guilty plea to a violation of § 843(b) necessarily
established a violation of the more serious offense under §
841(d)(1). Thus the question on appeal is whether Domino's guilty
plea contained a stipulation that specifically established the more
serious offense under 841(d)(1).
Recently, in United States v. Garcia,21 we reiterated our
standard for determining whether, as per U.S.S.G. § 1B1.2, a
stipulation specifically establishes a more serious offense than
the offense of conviction.
[I]n deciding whether a stipulation specifically
establishes a more serious offense than the offense of
conviction, the trial court must follow the directive
contained in Fed.R.Crim.P. 11(f) and satisfy itself that
a 'factual basis for each essential element of the crime
[has been] shown. The court must examine 'the relation
between the law and the acts the defendant admits' to
ascertain whether the stipulated conduct constitutes a
criminal offense.22
In Garcia, the two appellants and four codefendants were
19
21 U.S.C. § 841(d)(1) (1995); Martinez, 950 F.2d at 224.
20
Martinez, 950 F.2d at 224 (offering as an example, fact that
defendant could have been convicted under § 843(b) had he used a
telephone to facilitate other defendants' possession of chemical
without ever possessing chemical himself).
21
931 F.2d 1017 (5th Cir. 1991).
22
Id. at 1019 (quoting United States v. Martin, 893 F.2d 73,
75 (5th Cir. 1990) (citations omitted)).
10
charged in a two-count indictment with possession with intent to
distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and
conspiracy to do the same in violation of 21 U.S.C. § 846. The
appellants each waived the indictment and pleaded guilty to a
superseding charge of use of a telephone in committing a felony in
violation of 21 U.S.C. § 843(b). The probation office prepared a
PSR, recommending sentences based on the base offense level for the
more serious offense of possession. The appellants objected,
arguing that their base offense level should have been calculated
at twelve by reference to U.S.S.G. § 2D1.6. The district court
overruled the appellants' objections and imposed the recommended
maximum sentence. In vacating and remanding that sentence, we
concluded in relevant part that (1) the precise nature of the
appellants' involvement in the offense could not be determined from
the stipulated facts; (2) the sentencing court's reliance on facts
contained in the PSR was inappropriate because the factual basis
for each element of the greater offense must appear in the
stipulated facts as made on the record; and (3) the appellants'
failure to object to the facts set forth in the PSR did not
"constitute a 'stipulation' to those facts, much less a stipulation
'on the record.'"23
In light of Garcia, for us to decide whether Domino's plea
agreement contains a stipulation specifically establishing the more
serious offense of possession under 21 U.S.C. § 841(d)(1), we must
determine whether the stipulated facts as made on the record--the
23
Id. at 1019-20.
11
plea agreement, factual resume, and amendment--establish a factual
basis for each essential element of that offense.24 Thus, the
agreement, resume, and amendment must specifically establish that
Domino (1) knowingly or intentionally (2) possessed a listed
chemical (3) with intent to manufacture a controlled substance.25
Domino stipulated in the factual resume that he used a
telephone to call a DEA agent about purchasing phenylacetic acid
for the purpose of manufacturing a controlled substance. There is
nothing in this stipulation that specifically establishes that
Domino actually (or even constructively) obtained and possessed the
phenylacetic acid.26 Similarly, Domino stipulated in the amendment
to the factual resume only that the phenylacetic acid referred to
in Counts Two and Three was in the amount of a 110 pound drum.
Again, nothing in this stipulation specifically establishes the
essential elements of the more serious offense of possession with
intent to manufacture. We conclude, therefore, that the stipulated
facts as made on the record do not establish the more serious
offense of possession in violation of 21 U.S.C. § 841(d)(1).
III
24
Id.; Martin, 893 F.2d at 75. See also Braxton v. United
States, 500 U.S. 344, 349 (1991) (observing that sentence based on
more serious offense cannot stand unless defendant's agreement to
facts constitute a stipulation that specifically establishes the
elements of the offense).
25
See 21 U.S.C. § 841(d)(1) (1995).
26
See e.g., United States v. Sanchez, 961 F.2d 1169, 1175 (5th
Cir.) (defining "possession"--either actual or constructive--as
defendant's ownership, dominion, and control over item) (citing
United States v. Richardson, 848 F.2d 509, 512 (5th Cir. 1988)),
cert. denied, 113 S.Ct. 330 (1992).
12
CONCLUSION
In the absence of any stipulated facts that specifically
establish that Domino possessed phenylacetic acid with intent to
manufacture a controlled substance in violation of 21 U.S.C.
§ 841(d)(1), it follows that the 1990 PSR, which contained a base
offense level calculated according to that offense was incorrect.
Consequently, the district court's finding that Domino's sentence
under the 1993 Sentencing Guidelines, which produced a base offense
level of twenty-eight, was more favorable to Domino than his
sentence under the 1989 version of the guidelines, which if
calculated correctly would have assessed a base offense level of
twelve, was erroneous. Thus, as Domino's sentence under the 1993
Sentencing Guidelines violates the ex post facto clause, it must be
vacated and remanded to the district court for resentencing under
the 1989 version of the Sentencing Guidelines.
VACATED AND REMANDED.
13