United States v. Bass

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 12, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30408
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD MARTIN BASS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CR-50023-1
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Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:1
Edward Martin Bass pleaded guilty to conspiracy to
import controlled substances specifically Ecstasy, and was
sentenced to 135 months’ imprisonment and five years’ supervised
release. Bass argues that under U.S.S.G. § 1B1.3(a)(1)(B), his
sentence should have been calculated based on ecstasy, the
substance which was within the scope of the conspiracy and which
was reasonably foreseeable to Bass. He contends that he agreed to
1
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
the importation of ecstasy only, and that Sollenberger’s conduct in
shipping methamphetamine was not reasonably foreseeable to him.
The section of the guidelines concerning relevant conduct
which Bass argues is at issue, § 1B1.3(a), provides that a
defendant’s sentence
shall be determined on the basis of the
following:
(1)(A) all acts and omissions committed,
aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the
defendant; and
(B) in the case of a jointly undertaken
criminal activity (a criminal plan, scheme,
endeavor, or enterprise undertaken by the
defendant in concert with others, whether or
not charged as a conspiracy), all reasonably
foreseeable acts and omissions of others
in furtherance of the jointly undertaken
criminal activity,
that occurred during the commission of the
offense of conviction, in preparation for that
offense, or in the course of attempting to
avoid detection or responsibility for that
offense.
§ 1B1.3(a). These are separate and independent grounds for
imposing sentencing accountability. United States v. Carreon,
11 F.3d 1225, 1237 (5th Cir. 1994).
The commentary to § 1B1.3 provides as follows:
With respect to offenses involving contraband
(including controlled substances), the
defendant is accountable for all quantities of
contraband with which he was directly involved
and, in the case of a jointly undertaken
criminal activity, all reasonably foreseeable
quantities of contraband that were within the
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scope of the criminal activity that he jointly
undertook.
The requirement of reasonable foreseeability
applies only in respect to the conduct
(i.e., acts and omissions) of others under
subsection (a)(1)(B). It does not apply to
conduct that the defendant personally
undertakes, aids, abets, counsels, commands,
induces, procures, or willfully causes; such
conduct is addressed under subsection
(a)(1)(A)
§ 1B1.3, comment. (n.2). Carreon and the commentary make it clear
that the relevant conduct mentioned in § 1B1.3(a)(1)(B), which
contains the reasonable foreseeability requirement, applies in the
instances in which the defendant is not directly involved in the
drug transaction. 11 F.3d at 1232-33, 1237.
The concept of reasonable foreseeability does not apply
in this case because Bass personally participated in the
importation. Bass met with Sollenberger and recruited him to go to
Belgium to obtain the ecstasy; he provided Sollenberger with the
money to purchase the tablets; he provided Sollenberger with the
addresses to which the drugs should be mailed; and he actually
received and had in his possession two parcels containing
methamphetamine which were mailed by Sollenberger to Bass from
Belgium. In the words of § 1B1.3(a)(1)(A), Bass, by his actions,
personally “aided, abetted, induced and procured” the importation
of a controlled substance which turned out to be methamphetamine.
The district court did not err in holding Bass
accountable for the quantity of methamphetamine which was actually
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involved in the transaction in which Bass personally participated
regardless of his lack of knowledge that methamphetamine was the
drug actually imported. See United States v. Valencia-Gonzales,
172 F.3d 344, 345-46 (5th Cir. 1999); United States v. Gamez-
Gonzalez, 391 F.3d 695, 700 (5th Cir. 2003); United States
v. Strange, 102 F.3d 356, 360-61 (8th Cir. 1996); United States v.
Salazar, 5 F.3d 445, 446-47 (9th Cir. 1993); United States
v. Lockhart, 37 F.3d 1451, 1454 (10th Cir. 1994); United States v.
Corral-Ibarra, 25 F.3d 430, 437-38 (7th Cir. 1994).
Bass argues that after Apprendi v. New Jersey, 530 U.S. 466
(2000), due process requires that a defendant convicted of a
narcotics conspiracy be sentenced according to the substance that
was actually the object of the conspiracy. He contends that
because the type of substance is an element of the offense, and
because the statutory penalties are directly dependent on the type
of substance involved in the offense, he should have been sentenced
based on ecstasy because that was the drug for which he was charged
and to which he pleaded guilty to conspiring to import. He
acknowledges that his sentence did not exceed the statutory maximum
for ecstasy, but he contends that his sentence nevertheless
violates due process because it is unfair.
Bass acknowledges that he did not raise this issue in
the district court, and so this court reviews for plain error.
United States v. Olano, 507 U.S. 725, 730-37 (1993).
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This court rejected a similar argument in Gamez-Gonzalez,
holding that knowledge of drug type and quantity was not relevant
to the penalty, that the penalty was based solely on the type and
quantity involved in the unlawful act in 21 U.S.C. § 841’s strict
liability punishment scheme. 319 F.3d at 699-700. If knowledge of
the type of drug is not an element for purposes of the conviction,
it is likewise not relevant to the sentence.
Bass acknowledged at his plea hearing that he understood that
it was possible that the district court would base his sentence on
the quantity of methamphetamine actually involved in the offense,
rather than the ecstasy that was the intended object of the
conspiracy, and he was willing to take that risk. Bass’s sentence
was not unfair and did not violate due process.
AFFIRMED.
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