United States v. Vise ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 25 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-6230
EWING HIRATA VISE, (D.C. No. CR-98-81-M)
(W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**
Defendant Ewing Hirata Vise pled guilty to manufacturing methamphetamine in
violation of 21 U.S.C. § 841(a) and being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). Shortly after his plea, the Government filed an information
pursuant to 21 U.S.C. § 851, notifying Defendant that the Government intended to seek
an increased sentence under the mandatory sentencing scheme contained in 21 U.S.C.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
ordered submitted without oral argument.
§ 841(b)(1)(A). Because Defendant had two prior drug convictions and the information
alleged a quantity of methamphetamine in excess of the statutory requirement, Defendant
was subject to a life sentence.1
In Defendant’s presentence report (PSR), the probation office calculated
Defendant’s guideline range as 188-235 months. In calculating his base offense level, the
PSR attributed 2860 grams of methamphetamine to Defendant. Of this amount, only 2.87
grams were attributable to the § 841(a) charge. The remainder arose from evidence of
collateral drug-related conduct. For purposes of sentencing, the district court adopted the
PSR’s drug quantity calculation. Because the district court found the amount of
methamphetamine exceeded the amount required for mandatory sentencing
under § 841(b)(1)(A), the court sentenced Defendant to life imprisonment on the
drug charge,2 and a concurrent ten year sentence on the felon in possession charge. See
18 U.S.C. § 924(a)(2). Defendant appeals, challenging only his life sentence. Our
jurisdiction arises under 18 U.S.C. § 3742(a)(1).
After Defendant’s sentencing but during the pendency of this appeal, we
1
At the time of Defendant’s sentencing, 21 U.S.C. § 841(b)(1)(A)(viii) required
that the offense involve “100 grams or more of methamphetamine, its salts, isomers,
and salts of its isomers or 1 kilogram of more of a mixture or substance containing
a detectable amount of methamphetamine, its salts, isomers, or salts of isomers.”
In 1998, after Defendant’s sentencing, Congress amended § 841(b)(1)(A)(viii),
changing the requisite methamphetamine amounts to 50 and 500 grams respectively.
2
Section 841(b)(1)(A)’s mandatory sentencing scheme “trumps” the PSR’s
guideline calculations. United States v. Campbell, 995 F.2d 173, 175 (10th Cir. 1993).
2
decided United States v. Santos, 195 F.3d 549 (10th Cir. 1999). In Santos, we held that §
841(b)’s mandatory sentencing provisions apply only when the drug amount involved in
the offense of conviction meets the statutory requirement. Santos, 195 F.3d at 551-552.
Drug quantities which would qualify as “relevant conduct” for sentencing calculations
under the sentencing guidelines, see U.S.S.G. § 1B1.3, are irrelevant to the § 841(b)
calculation. Santos, 195 F.3d at 551-52. Because we must apply the law in existence at
the time we resolve an appeal, United States v. Novey, 922 F.2d 624, 629 (10th Cir.
1991), Santos applies to this case. As the Government acknowledges, the district
court erred, albeit through no fault of its own, in relying on the PSR’s drug quantity
calculation to sentence Defendant to life imprisonment under § 841(b).
Accordingly, we REMAND this cause to the district court with instructions
to VACATE Defendant’s sentence and RESENTENCE Defendant anew in
accordance with Santos.
SO ORDERED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
3