United States v. Beasley

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 93-1391

UNITED STATES,

Appellee,

v.

GEORGE CALVIN BEASLEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Breyer, Chief Judge,

Boudin and Stahl, Circuit Judges.

Jeffrey A. Lipow with whom Lipow, Barton & Harris was on brief

for appellant.
Jeffrey A. Locke, Assistant United States Attorney, with whom A.

John Pappalardo, United States Attorney, was on brief for appellee.

December 21, 1993

BREYER, Chief Judge. George Beasley appeals his

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

drug laws. Like the two other circuits that have considered

this argument, we reject it. United States v. Rivera, 996

F.2d 993 (9th Cir. 1993); United States v. Whyte, 892 F.2d

1170 (3d Cir. 1989), cert. denied, 494 U.S. 1070 (1990); see

also United States v. Dyer, No. 93-1045 (1st Cir. June 18,

1993) (per curiam). And, because we find Beasley's other

arguments unconvincing, we affirm the district court's

judgment.

I

Background

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

state law prohibiting the manufacture,

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

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

Definition

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

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

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)

(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

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.

Part (B) refers to "an offense described in" the particular

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

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

in 1984 U.S.C.C.A.N. 3182, 3358. Beasley's interpretation

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

(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,

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

among them on the basis of which jurisdiction happened to

punish the past criminal behavior seems (in the absence of

some special circumstance) close to irrational. Compare

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

punishments to the amount of drugs involved in earlier,

predicate convictions. See, e.g., 28 U.S.C. 994(h); 21

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.

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,

e.g., United States v. Gates, 807 F.2d 1075, 1082 (D.C.

Cir. 1986), cert. denied, 481 U.S. 1006 (1987); United

States v. Johnson, 506 F.2d 305, 307 (7th Cir. 1974), cert.

denied, 420 U.S. 1005 (1975). However, the language used in

the earlier version of 841(b) is different from the

"described in" language of 994(h). See 21 U.S.C.

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

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

1. The Amount of Heroin. Beasley was sentenced

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

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

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

States v. Ekwunoh, 813 F. Supp. 168, 179 (E.D.N.Y. 1993)

(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

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,

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

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,

835 (1975); United States v. Hafen, 726 F.2d 21, 24-26 (1st

Cir.), cert. denied, 466 U.S. 962 (1984); Maynard v.

Meachum, 545 F.2d 273, 277-79 (1st Cir. 1976). He says that

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.

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

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

States v. Olmstead, 832 F.2d 642 (1st Cir. 1987), cert.

denied, 486 U.S. 1009 (1988). We have held that the law

does not require a further, more detailed explanation.

United States v. Campbell, 874 F.2d 838, 843 (1st Cir.

1989); Olmstead, 832 F.2d at 646.

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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