PREGERSON, Circuit Judge:
Dario Restrepo appeals his forty-six month prison sentence imposed after he was convicted of two counts of distribution of cocaine. The appeal presents the following question concerning the interpretation of the new Sentencing Guidelines
On March 8, 1988, Restrepo was indicted on two counts of distribution of cocaine (counts I and II) under 21 U.S.C. § 841(a)(1).
At Restrepo's sentencing hearing, held on August 5, 1988, DeMaldonado, the sole witness, repeated her trial testimony. At this time Restrepo challenged the constitutionality of the Guidelines on due process and separation of powers grounds. Restrepo also objected to how the district court's applied sections 3D1.1 (the Multiple Counts section) and 1B1.3 (the Relevant Conduct section) in determining the appropriate sentence guideline range for the offenses of which he was convicted. The court overruled the objections.
The court then found that all the drugs involved in the charges against Judith DeMaldonado set forth in counts III and IV were part of a common scheme in which Restrepo was a participant.
STANDARD OF REVIEW
Generally, we review a sentence imposed on a criminal defendant for abuse of discretion. United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986). However, "[i]ssues of statutory construction are questions of law which we ordinarily review de novo." Pathfinder Mines Corp. v. Hodel, 811 F.2d 1288, 1290 (9th Cir.1987) (citing United States v. McConney, 728 F.2d 1195 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)).
The issue here is whether the district court erred in determining the "total offense level" for Restrepo's convictions. Section 1B1.1 of the Guidelines
In case of multiple counts of conviction, these steps are repeated for each count. Then the court uses the procedures in Part D of Chapter Three to determine the "combined offense level" for all the counts of conviction taken together. Finally, the court makes any appropriate adjustment related to the defendant's acceptance of responsibility (Part E of Chapter Three). What results is the total offense level.
Restrepo contends that the district court misconstrued the Multiple Counts section of the Guidelines because it treated Restrepo's alleged conduct in supplying DeMaldonado the cocaine involved in counts III and IV of which she was convicted as if Restrepo has also been convicted of counts III and IV.
Application of Part 3D, the Multiple Counts section of the Guidelines, is essentially a two-step procedure. First, applying Section 3D1.2, the court combines multiple counts into a single group. Then, applying Section 3D1.3, the court determines the offense level applicable to that group.
Section 3D1.2 provides in pertinent part:
Section 2D1.1 is the section that applies to Restrepo's offenses. Pursuant to Section 3D1.2(d), the district court grouped together counts I and II (i.e., Restrepo's two counts of conviction) with counts III and IV (i.e., two of Maldonado's three counts of conviction). After invoking Section 3D1.2(d), the next step is to aggregate quantities of drugs from the several counts pursuant to Section 3D1.3(b). See also Guidelines § 1A.4(e), at 1.9 ("[The rules in Chapter Three, Part D] essentially provide: (1) When the conduct involves fungible items, e.g., separate drug transactions or thefts of money, the amounts are added and the guidelines apply to the total amount.").
Restrepo contends, however, that no provision of Chapter Three allows the grouping together of his counts of conviction with DeMaldonado's counts of conviction because Restrepo was never even charged with, much less convicted of, the latter counts. He cites the opening sentence of Part D, Chapter Three of the Guidelines: "This Part provides rules for determining a single offense level that encompasses all the counts of which the defendant is convicted." Guidelines at 3.9 (emphasis added). Moreover, Section 3D1.1 begins: "When a defendant has been convicted of more than one count, the court shall...." (Emphasis added.) Restrepo contends that Chapter Three of the Guidelines, when properly interpreted, applies only to the defendant's own counts of conviction. Accordingly, he argues that the district court erred in applying Chapter Three provisions to two of DeMaldonado's three counts of conviction to enhance Restrepo's sentence by increasing his base offense level.
The Government contends that Restrepo's interpretation of Chapter Three is precluded by the clear and unambiguous language of Section 1B1.3 (the Relevant Conduct section), which provides in pertinent part:
Guidelines at 1.17. The "Application Note" for this provision adds: "This subsection applies to offenses of types for which convictions on multiple counts would be grouped together pursuant to § 3D1.2(d); multiple convictions are not required." Id. at 1.18 (emphasis added). This last phrase, so the government contends, clearly indicates that conduct of which the defendant was not convicted can be considered in applying the Chapter Three rules.
The government also points to the following language from the "Background" section following the "Application Notes":
Id. at 1.19. The government contends that this section controls the application of the rules contained in the Multiple Counts section of the Guidelines. Accordingly, the government argues that the district court properly aggregated the quantities of drugs involved in two of DeMaldonaldo's counts (III and IV) with the quantities in Restrepo's counts (I and II) pursuant to Sections 3D1.2(d) and 3D1.3(b).
We are not persuaded by the government's argument. In our view, the Multiple Counts section, by its explicit terms, applies only to counts of which the defendant has been convicted. As noted above, the opening sentence of the Multiple Counts section refers to "all the counts of which the defendant is convicted," Guidelines at 3.9 (emphasis added), and Section 3D1.1 provides instructions for when "a defendant has been convicted of more than one count ...." Guidelines at 3.10 (emphasis added). The language that the government cites in the Relevant Conduct section — which provides that conduct related to counts of conviction can be grouped together with conduct not related to any count of conviction — conflicts with the above quoted language of the Multiple Counts section.
At best, the Guidelines are ambiguous because they support both the interpretation offered by Restrepo and the interpretation offered by the Government. Given this ambiguity, our interpretation of the Guidelines should be informed by the "rule of lenity." The Supreme Court articulated this rule in Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971), stating that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Id. at 812, 91 S.Ct. at 1059; see also Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). More recently, the Court has held that the rule of lenity "applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose." Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980).
Applying the rule of lenity, we hold that the district court erred in interpreting the Multiple Counts section of the Guidelines to require aggregation under subsections 3D1.2(d) and 1B1.3(a)(2) of quantities of drugs involved in counts of which Restrepo was convicted with quantities of drugs involved in counts of which Restrepo was neither charged nor convicted.
REVERSED AND REMANDED.
BOOCHEVER, Circuit Judge, dissenting:
Because I believe the Sentencing Guidelines, read in conjunction with the commentary sections, are not ambiguous as to whether conduct of which the defendant is not convicted can be aggregated to determine the total offense level, I respectfully dissent.
I could agree with the majority opinion were it not for the amendments to the commentary in 1988.
The majority finds this commentary inconsistent with provisions of the Multiple Counts section of the Guidelines referring to aggregating "all the counts of which the defendant is convicted", Guidelines at 3.9 (October 1987), and section 3D1.1 referring to "when a defendant has been convicted of more than one count.... Guidelines at 3.10 (October 1987). Consequently, the majority applies the rule of lenity because "[a]t best, the Guidelines are ambiguous because they support both the interpretation offered by Restrepo and the interpretation offered by the Government." Opinion at 11. The sections cited by the majority, however, do not limit the aggregated quantity to the amounts charged in the counts of which the defendant is convicted. They do not state that only the counts of which the defendant is convicted may be considered. There is no inconsistency, therefore, when another provision mandates adding quantities of drugs "not specified in the count of conviction ... if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." See Guidelines § 1B1.3, commentary at 1.19 (January 15, 1988); see also United States v. Ruelas-Armenta, 684 F.Supp. 1048 (C.D.Cal.1988).
The Guidelines support the interpretation offered by Restrepo only if the commentary to the Guidelines is ignored. Section 1B1.7 of the Guidelines provides:
Guidelines at 1.22 (January 15, 1988) (emphasis added) (citation omitted). The commentary to this section further provides that: "in seeking to understand the meaning of the guidelines courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them. In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of a drafter." Guidelines at 1.22 (January 15, 1988). In this case, I believe the Sentencing Commission's intent is clear that conduct of which the
This case also raises the question whether the amended commentary may constitutionally be applied to conduct that occurred before the effective date of the amendments. If Restrepo furnished drugs to Maldonado before January 15, 1988, the effective date of the amended Guidelines, and those quantities were considered in the sentencing, I believe that an ex post facto question may be involved. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). A difficult constitutional question would be presented as to whether the amended commentaries would be considered "laws" for purposes of the ex post facto clause. See Vermouth v. Corrothers, 827 F.2d 599, 604 (9th Cir.1987) (parole guidelines established by the Parole Commission were not "laws" for purposes of the ex post facto clause). Before attempting to resolve that difficult constitutional issue, however, it would be necessary to remand to the trial court for a determination of the exact dates when Restrepo furnished drugs to Maldonado. I, therefore, would remand the case to the trial court for that purpose.
Restrepo's wrongdoing occurred on January 8, 1988 (count I) and January 13, 1988 (count II). The conduct for which he was not charged but which caused his sentence to be enhanced relates to wrongdoing by his codefendant DeMaldonado on March 1, 1988 (counts III and IV). We find no indication in the record of when Restrepo's wrongdoing in connection with DeMaldonado's counts of conviction occurred. The Government submits that Restrepo's non-convicted wrongdoing occurred at the same time as the offenses of which he was convicted. If so, then all of Restrepo's wrongdoing occurred before January 15, 1988, the effective date of the January 1988 Guidelines.
Restrepo's sentencing took place in August 1988. The district court appears to have applied the June 1988 version of the Guidelines, the version in effect when Restrepo was sentenced, even though Restrepo's wrongdoing occurred before this version became effective. This retrospective application of the Guidelines is mandated under the Sentencing Reform Act of 1984. See 18 U.S.C. §§ 3553(a)(4)-(5) (providing that the sentencing court is to apply the version of the Guidelines in effect at the time of sentencing). Because our inquiry is statutory and not constitutional, see infra note 7, we follow the mandate of the Guidelines and apply the June 1988 Guidelines.
Restrepo also contends that the Sentencing Reform Act of 1984 and the Guidelines promulgated thereunder violate the federal constitutional doctrine of separation of powers. Since Restrepo's appeal was filed, however, the Supreme Court has held that no such infirmity exists. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).
After oral argument, the contention that the Guidelines violate the United States Constitution's ex post facto clause was raised as an alternative ground for reversing the district court. In light of the fact that we dispose of this case on a statutory ground, we need not reach the constitutional argument. See Califano v. Yamasaki, 442 U.S. 682, 692-93, 99 S.Ct. 2545, 2553-54, 61 L.Ed.2d 176 (1979) ("A court presented with both statutory and constitutional grounds to support the relief requested usually should pass on the statutory claim before considering the constitutional question. Due respect for the coordinate branches of government, as well as a reluctance when conscious of fallibility to speak with our utmost finality, counsels against unnecessary constitutional adjudication.") (citations omitted).
The Sentencing Commission initially sought to institute a real offense system but such a framework proved to be impractical. Guidelines at 1.5. After trying to implement a "modified real offense system," the Commission abandoned this as well and moved closer to a charge offense system. Id."The system is not, however, pure; it has a number of real elements." Id. The ultimate question presented in this appeal is whether Subsection 3D1.2(d) is one of the "real offense" exceptions to the general charge offense framework.