## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 8 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. FERNANDO SANTOS,

Defendant-Appellant. No. 98-1344

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. No. 98-CR-136-M)

Submitted on the briefs: Linda A. McMahan, United States Attorney, and Sean Connelly, Attorney, U.S. Department of Justice, Denver, Colorado, for Plaint iff-Appellee. Michael G. Katz, Federal Public Defender, and Jill M. Wichlens, Assistant Federal Public Defender, Denver, Colorado, for Defe ndant-Appellant.

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

TACHA , Circuit Judge.1 After examining the briefs and appellate record, th is panel has

determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral ar gument.

2 The parties jointly urge us to reverse the sentence und er review. However, our analysis is not constrained by the gov ernment’s acquiescence in defendant’s position. See United States v. Furman , 112 F.3d 435, 438 n.2 (10th Cir. 1997) (“reversal of a district court’s order r equires our examination of the merits of the case, thereby invoking our judicial f unction[;]” hence, “[p]arties cannot compel us to reverse (or modify) a district court’s determination by stipulation” (quotation omitted)). Ultimately we agree reversal is required, but we arrive at that conclusion based on our independent assessment of the merits. See id. -2- This appeal 1 raises an important issue with respect to the sent encing scheme established for drug cases in 21 U.S.C. § 841(b), which ties mandatory minimum and maximum sentences to benchmark quantities of va rious illegal substances. Specifically, we must determine whether these sente ncing provisions are governed solely by the drug amounts involved in the offense of conviction, or whether other drug quantities, which would qualify as “relevant c onduct” for calculating the sentencing range under the United States Sentencing Guidelines, see U.S.S.G. § 1B1.3, may be included in an aggregate to trigger t he statutory directives. We consider this legal question de novo. 2 See United States v. Myers , 106 F.3d 936, 941 (10th Cir. 1997). For the reasons explained be low, we depart from a prior decision of this circuit and follow the overwhelmin g weight of authority elsewhere to hold that the Guideline principle of r elevant conduct, which plays a3 We have circulated this opinion to the en banc cour t, which has

concurred in our holding. See, e.g. , Hale v. United States Dep’t of Justice , 2 F.3d 1055, 1058 n.2 (10th Cir. 1993). -3- significant role in calculations within the Guideli ne scheme, does not govern the overarching sentencing directives established by Congress in § 841(b). 3

I. The pertinent facts are not in dispute. Defendant Fernando Santos was indicted for trafficking in heroin on four separate occasions, involving 25, 25, 49.8, and 74.92 grams. He pleaded guilty to one co unt of distributing 25 grams, in exchange for the dismissal of the remaining coun ts and the government’s promise not to oppose a sentence at the lowest end of the applicable Guideline range. The plea agreement specifically referred to § 841(b)(1)(C), which applies to offenses involving less than 100 grams of heroin , and consistent therewith noted a twenty-year maximum, but no mandatory minim um, sentence. No reference was made to § 841(b)(1)(B), which specifies minimum and maximum sentences of five and forty years, respectively, fo r offenses involving at least 100 grams of heroin. The agreement also calculated the anticipated sente ncing range under the Guidelines. From the cumulative amount of heroin s eized in the four transactions cited in the indictment (stipulated as relevant conduct under U.S.S.G. § 1B1.3),-4-

the agreement assumed a base offense level of 26, w hich was reduced by three points for defendant’s acceptance of responsibility . Under the pertinent criminal history category, the result was a range of fifty-s even to seventy-one months. Again, there was no mention of any statutory minimu m sentence affecting this Guideline range. In the course of defendant’s plea hearing, the gove rnment introduced the idea of using the relevant-conduct quantity to invo ke the five-year mandatory minimum sentence in § 841(b)(1)(B). Defense counsel argued that this agg regate of both offense and collateral conduct was relevant only to the Guideline calculations for which it had been developed, and t hat the statutory sentencing directives turn solely on the violation underlying the conviction. The district court left the matter undecided pending preparation of the presentence report, and defendant stood on his plea. At sentencing, defense counsel preserved his object ion to the consideration of collateral drug quantities for purposes of the m andatory minimum sentence in § 841(b)(1)(B). Counsel conceded that Tenth Circuit law, i.e., United States v. Reyes , 40 F.3d 1148, 1150-51 (10th Cir. 1994), sanctione d the procedure, but noted the conflict between our circuit and others o n this point. Invoking its fidelity to this circuit’s precedent, the district court held that the statutory minimum applied, leaving a sentencing range of sixty to seventy-one months.4 We emphasize the district court’s express intent to impose a sentence

at the bottom of the applicable range, as opposed t o a sixty-month sentence per se, because had the court instead “ma[de] it clear duri ng the sentencing proceeding that the sentence would be the same under either of the [disputed] Guideline ranges,” the issue raised here would be moot. United States v. Mondaine , 956 F.2d 939, 943 (10th Cir. 1992) (quotation omitted); see also United States v. Urbanek , 930 F.2d 1512, 1515-16 (10th Cir. 1991). -5- The court then imposed a sixty-month sentence, stat ing its understanding that this was the lowest sentence it could impose in accord with Reyes

. 4 Defendant appealed, challenging only the application of the s tatutory minimum sentence.

II. All other circuits to decide the issue have held th at the drug quantities triggering the mandatory sentences prescribed in § 841(b) are determined exclusively by reference to the offense of convicti on. Guideline constructs such as relevant conduct, which permit broad-ranging con sideration of collateral matters, are limited to their designed role in Guid eline-range calculations and do not affect the independent determination of the statutory sentencing directives. See, e.g. , United States v. Rettelle , 165 F.3d 489, 491 (6th Cir. 1999) (following United States v. Winston , 37 F.3d 235, 241 (6th Cir. 1994)); United States v.
Barnes , 158 F.3d 662, 669 (2d Cir. 1998) (following United States v. Darmand , 3 F.3d 1578, 1581 (2d Cir. 1993)); United States v. Rodriguez , 67 F.3d 1312, 1324 (7th Cir. 1995); United States v. Estrada , 42 F.3d 228, 232 n.4 (4th Cir. 1994).5 Of course, distinct drug quantities are aggregated under § 841(b)

when they are encompassed within a single violation of §841(a) , as in conspiracy cases. See, e.g. , United States v. Walker , 160 F.3d 1078, 1093-94 (6th Cir. 1998); United States v. Lewis , 110 F.3d 417, 422-23 (7th Cir. 1997). -6- Before we discuss the particular circumstances and contrary holding of Reyes , it is helpful to set out the rationale for the approac h reflected in these cases. The majority approach rests on the plain language o f the statute. Those subsections of § 841(b) which establish mandatory sentences for vari ous drug amounts do so by reference solely to the offense of conviction: “In the case of a violation of subsection (a) of this section involving [a specified drug quantity] . . . such person shall be sentenced [as prescribed].” § 841(b)(1)(A), (B) (emphasis added). Nothing here suggests considerat ion of drug quantities collateral to the underlying § 841(a) violation. 5 See Darmand , 3 F.3d at 1581 (“reason[ing] from the language of § 841(b)(1)” to conclude mandatory minimum sentence depends on “quantity involved in the charg ed, and proven, violation of § 841(a)”); see also Winston , 37 F.3d at 240-41 (“It is obvious from the statut e’s face–from its use of the phrase ‘a violation’–that [ § 841(b)] refers to a single violation [of § 841(a)]” as opposed to aggregate approach used by G uidelines). From this specific premise, the rest of the analysi s follows general principles to which this court already adheres. Wh en the controlling statutory language is plain, Guideline rules may not modify its import. See United States-7-

v. Allen , 16 F.3d 377, 379 (10th Cir. 1994) (“We have repeatedly recognized the obvious rule that statutes trump the guidelines when the two conflict.” ); see also United States v. Novey , 78 F.3d 1483, 1486 (10th Cir. 1996) (“[T]he Sente ncing Commission does not have the authority to override or amend a statute.”). Indeed, we have specifically refused to enforce an unwarranted congruence between the language of § 841 and related Guideline principles regarding the calculation of drug amounts. See, e.g. , United States v. Richards , 87 F.3d 1152, 1157 (10th Cir. 1996) (“[The] plain meaning interpr etation of ‘mixture or substance’ governs the . . . statutory mandatory minimum sentence under § 841, even where the Sentencing Commission adopts a confl icting definition in the sentencing guidelines.”); see also Neal v. United States , 516 U.S. 284, 291, 294 (1996) (noting § 841(b)(1)’s mandatory sentences “are both structur ally and functionally at odds with sentencing guidelines” an d holding Sentencing Commission “has no authority to override the statut e”) (quotation omitted). Thus, if § 841(b) does not endorse a relevant-conduct concept, the Guidelines cannot provide a basis for forcing the concept into the statute. In sum, a plain reading of the language used to spe cify the operative drug quantities in the mandatory sentencing provisions of § 841(b), divorced from the principle of relevant conduct developed for other p urposes in the Guidelines, indicates that the statutory directives are exclusi vely a function of the quantities-8-

involved in the offense of conviction. We turn now to this court’s contrary decision in Reyes

.

III

. In Reyes , the defendant pleaded guilty to one count of poss essing with intent to distribute approximately three kilograms of cocaine. See 40 F.3d at 1149. At sentencing, however, the district court f ound that the defendant had participated in additional transactions totaling ov er five kilograms, and used this aggregate quantity as relevant conduct in calculati ng the applicable Guideline sentencing range of 108 to 135 months. See id. The court initially imposed a sentence of 108 months, but, after the government argued that § 841(b)(1)(A) set a mandatory minimum sentence of ten years for offen ses involving at least five kilograms of cocaine, the court increased the sentence to 120 months. See id. The defendant appealed, challenging inter alia use of the relevant-conduct quantity to invoke the mandatory ten-year sentence in § 841(b)(1)(A). See id. at 1149-50. We affirmed the district court on this point. See id. at 1150-51. Actually, the dispute over application of § 841(b)(1)(A) in Reyes had two analytically distinct facets: the relevant-conduct issue raised here, having to do with which drug transaction(s) may be considered under § 841(b), and the very different contention that in applying § 841(b) to any transaction, the sentencing court is bound by the drug quantities specified in the charging document, see id.-9-

at 1150-51. The court thoroughly rejected the latt er limitation, reasoning from the established premise that § 841(b) does not create substantive elements of the offense but, rather, sets out independent sentencing criteria. See id. at 1151. As such, the drug amounts specified in the statute are “applicable only to sentencing” and, thus, “any quantity term in an inf ormation or indictment, or a specific quantity proven at a trial, does not dictate the mandatory minimum [under § 841(b)].” Id. However, that holding, and the rationale supporting it, does not encompass or entail any resolution of the separate relevant-c onduct question, to which the Reyes opinion never explicitly returned. See id. In the end, the court affirmed the mandatory minimum sentence under § 841(b), based on relevant-conduct quantities not involved in the offense of convictio n, without addressing the critical issue of statutory interpretation which ha s led so many other circuits to reject such an approach. As a result, nothing in Reyes , besides this tacit holding itself, constrains our present reconsideration of t he matter. Accordingly, for the reasons already outlined in pa rt II above, we now adopt the uniform approach of our sister circuits a nd hold that the mandatory sentencing directives in § 841(b) are governed solely by the drug quantities involved in the offense of conviction for which sen tence is imposed. Of course, consistent with Reyes ’ distinct holding that guilt-phase proceedings are not-10-

binding on § 841(b) sentencing matters, which we reaffirm today, such quantities are subject to determination at sentencing independ ently of any amounts specified in the charging document or evidenced at trial. The judgment of the United States District Court fo r the District of Colorado is REVERSED, and the cause is REMANDED forresentencing consistent with this opinion.