Appeal from the United States District Court For the Northern District of California. D.C. Nos. CR-88-0597-MHP, CR-88-0811-MHP, CR-89-0014-MHP, CR-89-0051-MHP, CR-89-0060-MHP. Marilyn H. Patel, District Judge, Presiding
Before: Schroeder, Pregerson and D.w. Nelson, Circuit Judges.
Angelo Commito, a healthcare program broker, was involved in an extensive healthcare program kickback scheme. In December 1985, the FBI began a sting operation against Commito believing that he was involved in organizing kickbacks in exchange for the placement of health plans with various employer buyers. This investigation ended in 1988 and charges were brought against Commito in the Northern District of Georgia (CR-89-0051-MHP, and CR-89-0060-MHP), the District of Maryland (CR-89-0014-MHP), the Southern District of California (CR-88-0597-MHP) and the Northern District of California (CR-88-0597-MHP). On July 18, 1989 these cases were consolidated in the Northern District court of California.
On February 26, 1991, Commito was convicted in an unrelated case in the District of Maryland of conspiracy to defraud the United States and bribery of a public official. He was sentenced to ten months imprisonment but was released on bond pending appeal of his conviction. On November 4, 1991, Commito made arrangements to enter guilty pleas in the consolidated cases before the Northern district court. Commito pled guilty to one count of wire fraud in two cases (CR-89-0060-MHP and CR-88-0811-MHP) and two counts of wire fraud, one count of mail fraud, and one count of theft in another case (CR-88-0597-MHP). The remaining charges were dismissed. Commito's mail fraud count was the only guideline offense; Commito's other five convictions were pre-guideline offenses.
At sentencing, the district court placed Commito on five years probation for each pre-guideline count to be served concurrently. Turning its attention to the guideline count of mail fraud, the court found that the base offense level was six. Aggregating the losses that resulted from each pre-guideline offense and the one guideline offense, the court found that the total loss from Commito's crimes was $443,896.00. Pursuant to U.S.S.G. § 2F1.1(b), Commito's base offense level was increased by seven points. Pursuant to § 2F1.1(b)(2), the court increased the base level by another two levels because the kickback scheme involved more than minimal planning. Finally, the court increased Commito's offense level by another four points for his leadership role in the plot under § 3B1.1(a). Granting Commito a two point reduction for acceptance of responsibility, the court found that Commito's base offense level was 17 and imposed a 30 month sentence. The district court ordered the pre-guideline sentences to run concurrently to the guideline sentence, and that the outstanding sentence handed down by the Maryland court was to run consecutively to the sentences in the consolidated cases.
Commito appeals his sentence on two grounds. First, he contends that the district court erred in adjusting his sentence under § 3B1.1(a). Second, Commito argues that the district court erred by ordering the pre-guideline sentences to run consecutively to his guideline sentence.
When adjusting a sentence upward, a district court must find by a preponderance of the evidence that the facts support an upward adjustment. United States v. Restrepo, 946 F.2d 654, 661 (9th Cir. 1991) (en banc). The district court's factual determinations are reviewed for clear error, but its legal interpretations of the Guidelines are reviewed de nova. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir. 1990).
Section 3B1.1(a) instructs the court to increase a defendant's offense level by four points if "the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. . . ." U.S.S.G. § 3B1.1(a). The introductory commentary to Chapter 3, Part B of the Sentencing Guidelines was amended, effective November 1, 1990, to read:
The determination of a defendant's role in the offense is to be made on the basis of all conduct within the scope of § 1B1.3 (Relevant Conduct), i.e. all conduct included under § 1B1.3(a)(1)-(4), and not solely on the basis of elements and acts cited in the count of conviction.
Pursuant to this amendment, the definition of the word "offense" is not restricted to the offense of conviction. Thus for purposes of § 3B1.1(a), a court may consider relevant conduct.
The district court held that it may consider the conduct underlying Commito's pre-guideline offenses when deciding whether he warranted an upward adjustment under § 3B1.1(a) notwithstanding that the guideline offense conduct took place prior to the effective date of the amendment to the introduction to § 3B.1. Because the guideline offense was committed prior to the effective date of the amendment, Commito argues that the application of the amendment violates the ex post facto clause.
Commito's argument is without merit. We already have determined that this amendment only clarified § 3B1.1(a). United States v. Lillard, 929 F.2d 500, 503 (9th Cir. 1991). Amendments that "clarify rather than substantively change the guidelines do not present ex post facto issues when they are applied retrospectively" to conduct that occurred before the clarification. United States v. Scarano, 975 F.2d 580, 587 (9th Cir. 1992). Therefore, the district court could properly consider Commito's pre-guideline offenses as relevant conduct when deciding whether he warranted an adjustment under § 3B1.1(a).
Next, Commito contends that the district court erred when it found that he was a leader or organizer of the kickback scheme. The district court did not speak to this issue at great length. Rather, the court incorporated the pre-sentence report into its statement of reasons and then concluded that the report supported a finding by a preponderance of the evidence that Commito was the "mastermind" behind the kickback scheme. The district court also stated that it would ...