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United States v. Beall

submitted*fn*: July 30, 1991.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES MICHAEL BEALL, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, District Judge, Presiding; D.C. No. CR-88-369-C.

Wright, Beezer, and Wiggins, Circuit Judges.

MEMORANDUM

James Michael Beall appeals his sentence following a guilty plea to one count of conspiracy to commit several fraud-related offenses and to one count of aiding and abetting bank fraud. Beall argues that his base offense level was incorrectly computed. He also argues that the district court improperly concluded that he was a manager or supervisor in the criminal activity, that an adjustment for obstruction of justice was proper, and that a departure for substantial assistance to the government was not warranted. This court has jurisdiction of the timely appeal. 28 U.S.C. § 1291. We affirm the district court's sentence.

Discussion

This court reviews de novo the district court's interpretation of the Guidelines, but gives due deference to the district court's application of the Guidelines to the facts. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). Findings of fact are reviewed for clear error. Id.

I. The Base Offense Level

Beall argues that his base offense level should have been calculated from Guideline § 2F1.1 (Fraud) rather than § 2S1.1 (Money Laundering). He argues that Guideline § 1B1.2(a) requires the court to use the offense guideline most applicable to the offense of conviction, and that fraud more accurately describes the object of the conspiracy than money laundering. Beall is correct that fraud more accurately describes the object of the conspiracy, and that money laundering was used only to further that object. Nevertheless, he overlooks the Guideline sections that provide more specific guidance in the calculation of his offense level.

Consistent with the direction in Guideline § 1B1.2(a) to use the offense guideline most applicable to the offense of conviction, the district court chose § 2X1.1 (Conspiracies Not Covered by a Specific Offense Guideline) as the starting point for sentencing. Section 2X1.1(a) directs the court to use the "base offense level from the guideline for the [conspiracy's] object offense. . . ." The problem is that Beall pled guilty to a conspiracy count with multiple objects. In these circumstances, § 1B1.2(d) directs that the conviction be treated as if the defendant were convicted on a separate count of conspiracy for each offense. Then § 3D1.2(d) directs that each "separate" conviction be grouped together for purposes of obtaining an offense level. See U.S.S.G. § 3D1.2(d) Application Note 9. The offense level for the "group" is not derived from the offense most characteristic of the criminal activity taken as a whole, as Beall would have it. Rather, the offense level is "the highest offense level of the counts in the Group," § 3D1.3(b), in this case, money laundering.

We hold that the district court did not err in using money laundering as the object offense for purposes of calculating the base offense level.

II. Disparity in Co-Conspirators' Sentences

Beall challenges the sentence enhancement for the amount of money involved in the conspiracy required by § 2S1.1(b)(2)(F) merely because his co-conspirator, convicted of the same conspiracy count, did not receive the enhancement. We have disapproved of arguments based only on disparity among co-defendants' sentences. United States v. Carpenter, 914 F.2d 1131, 1136 (9th Cir. 1990). We see no compelling reason to make an exception to that rule when co-defendants are also co-conspirators. Beall must prove that the enhancement was based on factual error or improper application of the Guidelines, independent of the enhancement a co-conspirator may or may not have received. He has not produced any independent arguments or evidence. We affirm the district court's enhancement of his offense level under § 2S1.1(b)(2)(F).*fn1

III. Adjustment for Role in the Offense

The district court increased Beall's offense level by three under § 3B1.1(b) for his role as a manager or supervisor in the conspiracy. Beall admitted in his Stipulated Factual Basis for Plea that "he supervised the administrative office of the debt elimination program." The defendant's arguments that he was not a manager or supervisor are not supported by any citations to the record. Further, his arguments suggest only that he was not an organizer or leader in the conspiracy, § 3B1.1(a) ...


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