On Remand from the United States Supreme Court. D.C. No. CR-90-0925-01-LCN.
Before: Stephen Reinhardt, Thomas G. Nelson, Circuit Judges, and Frank A. Kaufman,*fn* District Judge.
T.G. NELSON, Circuit Judge:
The Supreme Court reversed our decision, reported at 15 F.3d 862 (9th Cir. 1994), on the basis of its disagreement with our holding that the Government failed to prove the RICO enterprise affected interstate commerce. 115 S. Ct. 1732 (1995). Since the Court did not address any of the other issues in the case, we reinstate our earlier decision, except for parts I, IIIA, IIIH, and the Conclusion. We replace those portions of the opinion with those included in this order and the accompanying unpublished memorandum.*fn1
Juan Paul Robertson (Robertson) appeals his jury convictions for conspiracy and possession of cocaine with intent to distribute (Counts One through Four) and RICO (Count Six). We affirm the convictions but vacate the sentences and remand for resentencing.
H. Sentencing under the Guidelines
We must now address the sentencing issue not previously reached.
The district court sentenced Robertson to concurrent terms totalling twenty years under pre-Guidelines law. The Government cross-appealed the sentence, contending that because Robertson's RICO violation bridged the Guidelines' effective date of November 1, 1987, he should have been sentenced under the Guidelines.
A continuing course of criminal conduct which starts before November 1, 1987, and continues after that date is a so-called "straddle" offense properly sentenced under the Guidelines. See United States v. Kohl, 972 F.2d 294, 298 (9th Cir. 1992) (drug conspiracy); United States v. Castro, 972 F.2d 1107, 1112 (9th Cir. 1992) (same), cert. denied, 122 L. Ed. 2d 731, 113 S. Ct. 1350 (1993); United States v. Gray, 876 F.2d 1411, 1418 (9th Cir. 1989) (failure to appear), cert. denied, 495 U.S. 930, 109 L. Ed. 2d 497, 110 S. Ct. 2168 (1990).
In Kohl, we rejected an ex post facto claim based on our finding that many of the overt acts in the drug conspiracy had occurred after November 1, 1987. 972 F.2d at 298. The Government could have charged Kohl with conspiracy based only on events occurring after November 1, 1987. Thus, the fact that some of the conspirators' conduct occurred before November 1, 1987, did not create an ex post facto problem. Id.
In Castro, we noted that conspiracy is an offense that continues "until there is affirmative evidence of abandonment, withdrawal, disavowal or defeat of the object of the conspiracy." 972 F.2d at 1112. The conspiracy continued in that case until the seizure of the cocaine and the arrest of the conspirators, which was after November 1, 1987. Id. There, as in Kohl, the ...