
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1391                                    UNITED STATES,                                      Appellee,                                          v.                                GEORGE CALVIN BEASLEY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Jeffrey  A. Lipow with  whom Lipow,  Barton & Harris  was on brief            _________________            _______________________        for appellant.            Jeffrey A. Locke, Assistant United  States Attorney, with  whom A.            ________________                                                __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                  December 21, 1993                                 ____________________                       BREYER, Chief  Judge.  George  Beasley appeals his                               ____________             conviction for possessing  heroin with intent  to distribute             it, 21  U.S.C.   841(a)(1), and his  related twenty-two year             prison sentence.   His most important argument  focuses upon             the  lawfulness   of  the  Sentencing   Guidelines'  "career             offender" provision,  which increases  the guideline  prison             term for offenders with two previous  "controlled substance"             convictions.  U.S.S.G.    4B1.1.  In his  view, the relevant             authorizing  sentencing statute, 28 U.S.C.   994(h), permits             the  "career offender" guideline to take account of previous             federal drug convictions, but not of convictions under state             _______             drug laws.  Like the two other circuits that have considered             this argument, we  reject it.  United States  v. Rivera, 996                                            _____________     ______             F.2d 993 (9th  Cir. 1993); United States v.  Whyte, 892 F.2d                                        _____________     _____             1170 (3d Cir. 1989), cert. denied, 494 U.S. 1070 (1990); see                                  ____________                        ___             also United States  v. Dyer, No. 93-1045 (1st  Cir. June 18,             ____ _____________     ____             1993) (per  curiam).  And,  because we find  Beasley's other                    ___  ______             arguments  unconvincing,  we  affirm  the  district  court's             judgment.                                          I                                      Background                                      __________                       On January 25, 1991, a customs inspector at Newark             Airport noticed what turned out  to be heroin leaking from a                                         -2-                                          2             puncture hole in a suitcase.  She stopped the apparent owner             of  the suitcase, Habib Makdessi, who, eventually, agreed to             help agents apprehend  others involved in an  elaborate plot             to  smuggle  heroin  from Beirut  to,  and  through, Boston.             Agents flew  with Makdessi and  the suitcase  to Boston  and             checked  into a hotel, where,  Makdessi had told the agents,             he  would receive  further instructions.    After about  one             week, during which Makdessi had various phone  conversations             related  to delivery of  the suitcase, Makdessi  received an             authoritative call, which agents monitored, telling him that             he should  give the heroin-filled  suitcase to a  person who             would come to  Makdessi's room, identify himself  as "Paul,"             say that "Ahmed sent me," and give Makdessi $20,000.  During             that  conversation, Beasley knocked on the door, entered the             apartment, told  Makdessi that "Ahman  sent me,"  identified             himself as "Paul," and gave Makdessi $20,000.  Makdessi gave             Beasley the  suitcase, and he told Beasley that it contained             "a lot"  of heroin.   Makdessi added  that the  suitcase had             been punctured  and was leaking  heroin.  He gave  Beasley a             shower cap filled with some  of the heroin that had spilled.             Beasley  lifted the  suitcase  and  shook  it.    Government             agents,  who had  monitored the  drug  delivery with  hidden                                         -3-                                          3             cameras and  audio recorders,  arrested Beasley  as he  left             with the suitcase.                         After Beasley's  conviction, the  sentencing court             turned to the  Guidelines.  It found  that Beasley possessed             (with intent  to distribute)  just over  three kilograms  of             heroin,  that  Beasley  had  one   previous  conviction  for             violating a federal drug law (for possessing, with intent to             distribute, about  25 grams of heroin), and that Beasley had             one previous conviction for violating a  state drug law (for             selling about  one-half gram  of heroin).   Ordinarily,  the             amount of  the drug and  two prior felony  convictions would             produce a Guideline  sentencing range of  188 to 235  months             imprisonment  (Offense Level  34, Criminal  History Category             III).    U.S.S.G.      2D1.1(c)(5),  4A1.1.    But,  because             Beasley's  "two  prior  felony  convictions"  were  for   "a             controlled substance offense," the court instead applied the             special  "career offender" guideline.  U.S.S.G.   4B1.1 (see             appendix for the  full text).  That guideline  applies to an             offender who meets its  "career offender" definition, which,             for  present  purposes,  includes a  person  convicted  of a             "controlled  substance offense" who  also "has at  least two             prior felony  convictions of  . .  . a  controlled substance             offense," which latter term                                          -4-                                          4                       means  an  offense  under a  federal  or                                                             __                       state law  prohibiting the  manufacture,                       _____                       import,    export,   distribution,    or                       dispensing of a controlled substance . .                       .  or  the  possession  of a  controlled                       substance   .  .   .   with  intent   to                       manufacture, import, export, distribute,                       or dispense.             U.S.S.G.   4B1.2(2) (emphasis added).                       The special "career offender" guideline contains a             table with offense levels geared to the maximum sentence  in             the statute  of conviction.   It says that the  table "shall             apply" to a "career offender" if the table level is "greater             than the offense  level otherwise applicable."   The "career             offender" guideline also specifies that a "career offender's             criminal  history category in  every case shall  be Category             VI."                       At the sentencing hearing, the parties agreed that             the drug statute  subjected Beasley to a  maximum penalty of             forty  years imprisonment.   And,  the  offense level  table             provides an offense level of  34 for a career offender, who,             like Beasley, was subject to  a maximum penalty of "25 years             or more"  (but less than  life).  Because the  ordinary drug             conviction guideline  (applicable to  an offender with  just             over  three kilograms of  heroin) also specifies  an offense             level  of  34,  U.S.S.G.    2D1.1(c)(5),  the  table in  the             "career  offender"  guideline  made  no   difference.    The                                         -5-                                          5             requirement  that  a  "career  offender's  criminal  history             category"  must  be  "Category  VI,"  however,  did  make  a             difference, for it increased  Beasley's guideline sentencing             range, from one of 188 to 235  months, to one of 262 to  327             months, thereby  authorizing the  22-year sentence  that the             district court imposed.                       Beasley,  as  we  have  said,  appeals   both  his             conviction  and his  sentence.   (We  note, parenthetically,             that the drug statute, in fact, seems to subject an offender             such as Beasley to a  maximum term of life imprisonment, not             forty  years.  See 21 U.S.C.    841(b)(1)(B).  But, in light                            ___             of the  government's sentencing  concession in  the district             court, we  assume no  error in  the  point.   And, we  shall             consider  the  sentencing  aspect  of  the  appeal  on  that             assumption.)                                          II             The   Career  Offender   Guideline's   Prior  Drug   Offense             ____________________________________________________________             Definition             __________                       Beasley's  most important  argument concedes  that             the  district court correctly applied the guidelines as they             are  written.   He  claims,  however,  that  the  Sentencing             Commission   lacked  the  legal  power  to  define  a  prior             conviction for a  "controlled substance offense"  to include                                         -6-                                          6             state,  as well as federal, convictions.  Beasley notes that             _____             the  Commission itself indicated  that it meant  its "career             offender"  guideline   to  reflect  the  requirements  of  a             particular statutory  provision, namely 28 U.S.C.    994(h).             See U.S.S.G.    4B1.1 Background statement  (explaining that             ___             the "career offender" guideline meets   994(h)'s requirement             that the guidelines "specify" for certain "career offenders"             a "sentence . . . at or near the maximum term authorized" by             statute).   He  urges  us  to judge  the  lawfulness of  the             guideline on  the basis of  the legal ground upon  which the             Commission  explicitly (and  apparently exclusively)  rested             it.   Cf.  SEC v.  Chenery  Corp., 318  U.S. 80,  87  (1943)                   __   ___     ______________             (reviewing agency action on the basis of the agency's actual             rationale).   And, he says,  the statute's  language is  not             consistent with  the Commission's decision  to include state             "controlled substance" convictions.                       That statutory  language  says  that  an  offender             should be treated  as a  "career offender"  if, among  other             things, he  has "previously  been convicted of  two or  more             prior felonies, each of which is"                       (A) a crime of violence; or                       (B) an offense  described in section 401                       of  the  Controlled Substances  Act  (21                       U.S.C. 841), sections 1002(a), 1005, and                       1009 of the Controlled Substances Import                                         -7-                                          7                       and  Export Act  (21 U.S.C.  952(a), 955                       and  959), and section  1 of the  Act of                       September 15, 1980 (21 U.S.C. 955a).             28  U.S.C.     994(h)(2).    Part  (B)  of  this definition,             defining  prior drug  convictions,  unlike  part (A),  lists             specific  federal statutes.   That fact, in  Beasley's view,             means  that  Part (B)  of  the definition  does  not include                                                              ___             convictions  under state  statutes.    And,  he  says,  that             exclusion makes sense, for state drug convictions,  compared             with  federal  drug convictions,  typically  involve smaller             amounts of drugs.                       We,  like   the  other  two  circuits   that  have             considered this question, do  not accept Beasley's argument,             for three  basic reasons.   First, although the  language of             Part (B),  unlike Part (A),  does refer to  specific federal             statutes,  if one  reads its  words literally,  it  does not             exclude, but rather  includes, convictions under  state law.                                  ________             Part (B)  refers to "an offense described in" the particular                                             ____________             specified  federal  statutes.     Those  statutes   describe             behavior  commonly called "drug trafficking."  They refer to             such  activities   as  the  making,   importing,  exporting,             distributing, or dispensing, of drugs, and  possessing drugs             with  an intent to engage in these  activities.  They do not             refer to simple possession of drugs (except when entering or                                         -8-                                          8             leaving  the country).   A  literal  reading of  the statute             would   include  a  conviction   under  a  state   law  that             criminalizes some,  or all,  of these  same activities,  for             such a state law would  create "an offense described in" the                                                        ____________             federal statute.                       Second,  examination   of  the   purpose  of   the             statutory  provision  supports   the  literal  reading  just             described.   Congress wrote that  the provision's  objective             was to ensure  that "substantial prison terms  [are] imposed             on repeat  violent offenders  and repeat drug  traffickers."             S. Rep. No. 225, 98th  Cong., 2d Sess. 175 (1984), reprinted                                                                _________             in 1984  U.S.C.C.A.N. 3182, 3358.   Beasley's interpretation             __             would frustrate this objective, for, on that interpretation,             the  statute would not  require a "substantial  prison term"             for  a   "repeat  drug  trafficker"   apprehended  by  state             authorities and punished  under state, rather  than federal,             law.    We  have  found   nothing  in  the  history  of  the             legislation, nor in its language, that explains why Congress             would want to insist (as  it did) upon a "substantial prison             term"  for an offender  who repeats earlier  violent conduct                                                          _______________             (irrespective of jurisdiction) but not want to insist upon a             similar  "substantial  prison  term"  for  an  offender  who             similarly repeats earlier drug trafficking conduct.                                         -9-                                          9                       Third,  Beasley's  interpretation would  create  a             significant anomaly  in  a  guideline  system,  the  primary             objective of  which is  to create  uniformity of  sentencing             treatment.   See Mistretta v.  United States, 488  U.S. 361,                          ___ _________     _____________             365-66 (1989);  28 U.S.C.   991(b)(1)(B)  (guidelines should             "avoid[] unwarranted  sentence disparities  among defendants             with similar records who have  been found guilty of  similar             criminal conduct").   In seeking  uniformity, to distinguish             among  offenders  on  the basis  of  different  behavior, or             different  criminal  backgrounds,  often makes  sense,  when             considered  in light  of the  basic  purposes of  punishment             (e.g.,  deterrence,   "just  deserts,"   incapacitation,  or             rehabilitation,  see 18 U.S.C.    3553(a)).   To distinguish                              ___             among them  on the basis  of which jurisdiction  happened to                                          __________________             punish  the past criminal behavior  seems (in the absence of             some special  circumstance) close  to  irrational.   Compare                                                                  _______             U.S.S.G.   4A1.1 Background statement (prior convictions for             criminal history purposes "may  represent convictions in the             federal  system,  fifty  state   systems,  the  District  of             Columbia,  territories, and  foreign,  tribal, and  military             courts").                       Beasley argues,  to the contrary,  that state drug             trafficking  convictions often  involve  smaller amounts  of                                         -10-                                          10             drugs.  We do not know the extent to which that is so.  But,             in  any event,  Congress does  not  normally key  recidivism                                                               __________             punishments  to the  amount of  drugs  involved in  earlier,             predicate convictions.   See, e.g.,  28 U.S.C.    994(h); 21             _________                ___  ____             U.S.C.   841(b).  And,  to read this statute as representing             an effort to  do so seems  at least as  likely to produce  a             crazy-quilt of  punishment  results, as  to connect  similar             punishments rationally to similar past behavior.                       Beasley's strongest argument is  that Congress, in             other  statutes, has written the term "state law" explicitly             when it has  wanted to include convictions  under state law.             See, e.g., 28 U.S.C.   994(i); 21 U.S.C.   841(b); 18 U.S.C.             ___  ____                924(e).   In fact,  until  Congress amended  21 U.S.C.                841(b) specifically to allow sentence enhancements  based on             prior  state law drug convictions,  courts had held that the             statute did not apply to those state drug convictions.  See,                                                                     ___             e.g.,   United States  v. Gates, 807  F.2d 1075,  1082 (D.C.             ____    _____________     _____             Cir.  1986),  cert.  denied, 481  U.S.  1006  (1987); United                           _____________                           ______             States v. Johnson, 506 F.2d  305, 307 (7th Cir. 1974), cert.             ______    _______                                      _____             denied, 420 U.S. 1005 (1975).  However, the language used in             ______             the  earlier version  of     841(b)  is different  from  the             "described  in" language  of     994(h).   See  21 U.S.C.                                                           ___             841(b)(1)(A)  (referring to "prior convictions .  . . for an                                         -11-                                          11             offense punishable under  . . . any  . . . other  law of the             United  States   relating   to   narcotic   drugs"   (before             amendment)).  Furthermore, the legislative history of former               841(b)(1)(A),  unlike the legislative history  here, makes             clear that  Congress intended that enhancement  provision to             apply only  to a prior  federal conviction.  See  Gates, 807                                     _______              ___  _____             F.2d at  1082.   Congress  can  embody a  similar  scope-of-             coverage intent in different ways in different statutes.                       The  upshot is that the statute's purpose, and the             purpose of  the sentencing laws  of which that statute  is a             part, both  support the  Commission's interpretation  of the             statute.  The language of the statute, when read  literally,             favors that same  conclusion.  We find the  arguments to the             contrary  plausible,  but  ultimately  not  convincing.   We             therefore conclude that  the statutory provision  authorizes             the Commission to define "career  offender" as it has  done,             that is, to include  those with prior state law  convictions             for  offenses  of the  sort  defined in  the  listed federal             statutes.                                         III                                   Other Arguments                                   _______________                       1.  The Amount of  Heroin.  Beasley  was sentenced                           _____________________             under the  belief  that  the  applicable  offense  statutory                                         -12-                                          12             maximum  was 40 years,  and thus, under  the career offender             guideline,  offense level 34  applied.  Beasley  argues that             the  court applied the  wrong statutory maximum  because the             provision  it  used,    841(b)(1)(B),  applies  only  if the             violation involved  100 grams  or more of  heroin.   And, he             says that the  evidence did not support the district court's             finding  that  he  knew  about the  3  kilograms  of heroin.             Rather, he  says that the  evidence shows that he  only knew             about 5 grams of heroin.  However,  even if it were relevant                                                                 ________             for sentencing purposes that  Beasley believed the  suitcase             contained only five grams of  heroin, the same offense level             would apply.  See 21 U.S.C.   841(b)(1)(C) (30 years maximum                           ___             sentence if repeat offender and violation involved less than             100  grams of heroin); U.S.S.G.   4B1.1(b) (specifying level             34 if statutory maximum for offense exceeds 25 years).                       Regardless, the evidence  was more than sufficient             to  support  the  district court's  factual  conclusion that             Beasley knew the suitcase contained about three kilograms of             heroin.   The  complex nature  of  the crime,  the elaborate             delivery precautions, the  suitcase that  in fact  contained             more than three kilograms of heroin, the fact that  Makdessi             told him  the suitcase contained  a lot of heroin,  the fact             that heroin  had leaked  out and was  contained in  a shower                                         -13-                                          13             cap, and his having lifted and shaken the suitcase, together             provide  more than  enough  support for  a  finding that  he             actually  knew   the  transaction  involved  more  than  one             kilogram.  The only contrary  evidence lies in the fact that             he paid only  $20,000, far less than the  wholesale value of             one kilogram.  Yet, nothing  in the record suggests that the             $20,000 sum  was meant  to be more  than a  partial payment.             Thus, this fact  does not lead us to  a contrary conclusion.             Because  the record supports  a finding of  actual knowledge             (and because any  error was harmless), we need  not consider             other mental  states and  other circumstances.   Cf.  United                                                              ___  ______             States  v. Ekwunoh,  813 F. Supp.  168, 179  (E.D.N.Y. 1993)             ______     _______             (holding that, in  some circumstances,  defendant cannot  be             sentenced  for  possessing  more  drugs  than he  reasonably             believed he possessed).                       2.  Ineffective Assistance  of  Counsel.   Beasley                           ___________________________________             says that his counsel was "ineffective" in failing to attack             the  "chain of  custody"  receipts  for  the  heroin,  which             attack, in his view, represented his only hope of acquittal.             The record  before us  provides no  basis for  accepting his             "ineffective assistance" claim.   The government  introduced             what  seems to  be strong  evidence of  custody.   The trial             court, as a  general matter, praised  counsel's performance.                                         -14-                                          14             We  do   not  normally  consider   claims  of   "ineffective             assistance" on direct appeal, for  such claims may require a             court  to go  outside  the  trial  record, for  example,  to             consider counsel's trial  strategy.  United States  v. Mala,                                                  _____________     ____             No. 91-2229, slip  op. at 9-10 (1st Cir. Oct. 27, 1993).  We             see no reason  for making an exception to that  rule in this             case.                       3.  Waiver of Counsel.  In mid-trial Beasley asked                           _________________             the trial court  to permit him to discharge  his counsel and             proceed on  his own.   The trial judge warned  Beasley about             the dangers  of doing so.   But, when Beasley  persisted, he             granted Beasley's request, having asked counsel to remain to             advise Beasley  if necessary.   Beasley now argues  that the             "totality  of the circumstances"  establish that Beasley did             not "knowingly and intelligently" waive his Sixth  Amendment             right to counsel.  See Farretta v. California, 422 U.S. 806,                                ___ ________    __________             835 (1975); United States v.  Hafen, 726 F.2d 21, 24-26 (1st                         _____________     _____             Cir.),  cert.  denied,  466  U.S.  962  (1984);  Maynard  v.                     _____________                            _______             Meachum, 545 F.2d 273, 277-79 (1st Cir. 1976).  He says that             _______             the record does not make  it sufficiently clear that he "was             aware   of   the   dangers   and   disadvantages   of   self             representation, the technical requirements of trial, and the                                         -15-                                          15             potential  penalties he  was  facing."   Appellant's Opening             Brief at 29; see Maynard, 545 F.2d at 279.                          ___ _______                       Having reviewed the  record, we do not  agree with             Beasley's conclusions.  The district court clearly explained             the disadvantages of his choice and the technical  nature of             the trial.   The  judge discussed in  detail the  calling of             witnesses,  the presentation of  closing arguments,  and the             need  to review  jury  instructions,  all  to  help  Beasley             understand   the  magnitude  of  what  he  proposed  to  do.             Moreover,  Beasley's past  record  --  his  two  prior  drug             convictions  -- suggest  some familiarity  with the  serious             nature   of   trials  and   their   potential  technicality.             Similarly, the fact  that Beasley had previously  received a             five-year sentence  for  violating the  same statute,  along             with the  notice of  enhanced sentence  that the  government             sent   to  Beasley  and  the  detention  hearing  where  the             government told Beasley  he faced a possible  life sentence,             all  indicate  that  Beasley  was  aware  of  the  potential             penalties   he  was  facing.    Beasley  now  says  that  he             erroneously thought  he would  not be  permitted to  testify             unless he  dismissed his lawyer, but the  record provides no             basis  for  the  district  court's  having  believed Beasley                                         -16-                                          16             entertained that  thought nor  any objective  basis for  his             having done so.                       Despite the  court's explanation  of disadvantages             of self-representation and the  technicalities of the trial,             Beasley insisted, quite clearly, that he wanted to represent             himself.  The trial court, therefore, properly permitted him             to  do so  and wisely asked  his counsel  to stay  and offer             advice if necessary.  We find no error.                       4.  Reasonable Doubt.  Beasley argues that the law                           ________________             required the district  court to define the  term "reasonable             doubt" in its  jury instructions.  The  court, however, gave             the type  of instruction that this court  approved in United                                                                   ______             States  v. Olmstead,  832 F.2d  642 (1st  Cir. 1987),  cert.             ______     ________                                    _____             denied, 486  U.S. 1009 (1988).   We  have held that  the law             ______             does  not  require  a  further,  more  detailed explanation.             United States  v.  Campbell, 874  F.2d  838, 843  (1st  Cir.             _____________      ________             1989); Olmstead, 832 F.2d at 646.                    ________                       For these  reasons, the  judgment of  the district             court is                       Affirmed.                        _________                                         -17-                                          17             Note:  See slip opinion for copy of Appendix.                                         -18-                                          18
