United States v. Cochran ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4739
LAMONT COCHRAN,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4816
TROY GILLIARD,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-00-248)
Submitted: April 23, 2002
Decided: June 3, 2002
Before LUTTIG and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
2 UNITED STATES v. COCHRAN
COUNSEL
David Schles, STOWERS & ASSOCIATES, Charleston, West Vir-
ginia; Teresa Clark Toriseva, HENDRICKSON & LONG, Charles-
ton, West Virginia, for Appellants. Kasey Warner, United States
Attorney, Lisa A. Green, Assistant United States Attorney, Charles-
ton, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lamont Cochran and Troy Gilliard each pled guilty to conspiracy
to commit money laundering, 18 U.S.C.A. § 1956(h) (West 2000).
Cochran was sentenced to 144 months imprisonment and Gilliard
received a sentence of 100 months imprisonment. Both appeal their
sentences. Cochran alleges that the district court clearly erred in find-
ing that he was a leader or organizer in the underlying drug offense,
U.S. Sentencing Guidelines Manual § 3B1.1(a) (2000), and erred in
finding that the base offense level for his violation of § 1956(h) was
23 under USSG § 2S1.1(a)(1). Gilliard maintains that the district
court erred in finding that two of his prior convictions were not
related cases, USSG § 4A1.2(a)(2), comment. (n.3), and abused its
discretion in refusing to depart based on his rehabilitation from drug
addiction.
Between 1992 and 1999, Cochran distributed approximately
32,940 dilaudid tablets worth about $599,980 to James and Larry
(Frankie) Endicott and Henry Taylor in Huntington, West Virginia.
The dilaudid was then widely redistributed. Cochran transported the
dilaudid from New York to West Virginia with the help of his co-
defendants, Troy Gilliard and Monica Slash. Cochran and Gilliard
were both charged with conspiracy to distribute dilaudid, three counts
UNITED STATES v. COCHRAN 3
of distributing dilaudid, and conspiracy "to launder monetary instru-
ments, in violation of 18 U.S.C.A. § 1956(a)(1)(A)(i),"1 as set forth
in Count Five, which charged a violation of 18 U.S.C.A. § 1956(h).2
Both pled guilty to Count Five.
First, Cochran maintains that there was no factual support for the
district court’s finding that he was a leader in the offense because
there was no evidence that he had any contact with the people to
whom his customers sold dilaudid. We review the district court’s fac-
tual finding for clear error. United States v. Perkins, 108 F.3d 512,
518 (4th Cir. 1997) (stating standard of review). Most critical of the
factors considered by the court is that it was Cochran who obtained
a large quantity of dilaudid from his source in New York and
arranged for it to be transported to West Virginia and sold there. The
court found that Cochran was "the central figure" in the dilaudid dis-
tribution and that the others involved in dilaudid sales who did not
deal directly with him were nevertheless connected to him in that they
were dependent on the drugs he supplied. Adjustments are determined
on the basis of relevant conduct. See USSG § 1B1.3(a). Reasonably
foreseeable conduct of other participants in a jointly undertaken crim-
inal activity may be imputed to the defendant. USSG § 1B1.3(a)(2).
Implicit in the court’s finding was that Cochran could reasonably
foresee that the dilaudid he sold to his customers would be further dis-
tributed. We cannot say that the court clearly erred in finding that he
was a leader in the offense.
1
Title 18, section 1956(a)(1)(A)(i) provides that:
[w]hoever, knowing that the property involved in a financial
transaction represents the proceeds of some form of unlawful
activity, conducts or attempts to conduct such a financial transac-
tion which in fact involves the proceeds of specified unlawful
activity—with the intent to promote the carrying on of specified
unlawful activity . . . shall be sentenced to a fine of not more
than $500,000 . . . or imprisonment for twenty years, or both.
2
Title 18, section 1956(h) provides that, "[a]ny person who conspires
to commit any offense defined in this section . . . shall be subject to the
same penalties as those prescribed for the offense the commission of
which was the object of the conspiracy."
4 UNITED STATES v. COCHRAN
We next find that the district court properly applied a base offense
level of 23. Guideline section 2S1.1(a) provides a base offense level
of 23 if the defendant is "convicted under 18 U.S.C. § 1956(a)(1)(A),
(a)(2)(A), or (a)(3)(A)." Otherwise, a base offense level of 20 applies
under USSG § 2S1.1(a)(2). The district court’s interpretation of the
guidelines presents a question of law and is reviewed de novo. United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Cochran
argues that § 2S1.1(a)(1) did not apply in his case because he was
convicted of violating § 1956(h), not § 1956(a). However, Count
Five, to which he pled guilty, charged him with conspiring to launder
money in violation of § 1956(a)(1)(A)(i). The object of the conspiracy
was thus to launder money to promote an unlawful activity, which is
a violation of § 1956(a)(1)(A)(i).
Because § 1956(h) specifies that the penalty for that crime is the
same as the penalty for the object of the conspiracy, § 2S1.1(a)(1) was
properly applied and Cochran’s base offense level was correctly set
at 23. See United States v. Brace, 145 F.3d 247, 274 (5th Cir. 1998)
(holding that proper base offense level for conspiracy to violate
§ 1956 (a)(1)(A) is 23); United States v. House, 110 F.3d 1281, 1287-
88 (7th Cir. 1997) (same); United States v. Acanda, 19 F.3d 616, 619-
20 (11th Cir. 1994) (same); United States v. Restrepo, 936 F.2d 661,
665 (2d Cir. 1991) (same).
Gilliard contends that two of his prior sentences arose from related
cases, USSG § 4A1.2(a)(2), comment. (n.3), and should have counted
as one sentence in his criminal history. Gilliard was arrested for grand
larceny in February 1993 and for bail jumping in November 1994.3
He entered guilty pleas in both cases and, in November 1994, he was
given an identical sentence for each offense in the same New York
court. When the facts concerning prior convictions and sentences are
undisputed, whether they are related cases for criminal history pur-
poses is a legal question reviewed de novo. United States v. Allen, 50
F.3d 294, 296 (4th Cir. 1995). Even when prior cases have been con-
solidated for sentencing (as Gilliard argued at sentencing that these
sentences were), if there is an intervening arrest, such cases must be
considered unrelated for criminal history purposes. United States v.
Huggins, 191 F.3d 532, 539 (4th Cir. 1999). Here, there was an inter-
3
In addition, he was arrested for drug possession in December 1993.
UNITED STATES v. COCHRAN 5
vening arrest. See USSG § 4A1.2, comment. (n.3) (explaining that
intervening arrest occurs when defendant is arrested for the first
offense before he commits the second arrest). Thus, the district court
did not err in treating Gilliard’s prior sentences as unrelated.
Finally, Gilliard seeks to appeal the district court’s refusal to depart
based on his apparently successful rehabilitation from crack addiction
prior to his arrest for the instant offense. Post-offense rehabilitation
may serve as a basis for a downward departure, United States v.
Brock, 108 F.3d 31, 35 (4th Cir. 1997), and the record discloses that
the district court was aware of its authority to depart on this ground.
Nonetheless, the district court determined that a departure was not
warranted. Its decision is not reviewable. United States v. Bayerle,
898 F.2d 28, 31 (4th Cir. 1990).
We therefore affirm the sentences. We dismiss that portion of Gil-
liard’s appeal which contests the district court’s decision not to
depart. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART