UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-3786

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARLA DENIZA MALCON DE VEAL,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Louisiana

(April 15, 1992)

Before POLITZ, Chief Judge, DAVIS and DeMOSS, Circuit Judges.

POLITZ, Chief Judge:

Marla Denzia Malcon De Veal appeals her sentence after the

jury returned verdicts of guilty to charges of conspiracy to import

cocaine, importation of cocaine, and aircraft smuggling, in

violation of 21 U.S.C. §§ 963, 960(a)(1), 952(a); 18 U.S.C. § 2;

and 19 U.S.C. § 1590(a). The sole issue presented on appeal is

whether she had been convicted of a prior drug offense in Kansas
2

state court. The trial court found that she had and imposed a

mandatory-minimum sentence of 20 years. Finding no clearly

erroneous finding of fact and no error of law, we affirm.

Background

De Veal was arrested at the New Orleans International Airport

after a flight from Costa Rica when inspectors found packages

containing cocaine taped to her body. She was charged and

convicted of conspiracy to import cocaine, its importation, and

smuggling cocaine aboard an aircraft. The sentencing guidelines

for an offense level of 32 and a criminal history category of II,

as computed in the presentence report, provide a sentencing range

of 135 to 168 months. The government filed a bill of information

reflecting a prior conviction in Kansas for drug trafficking.

Under 21 U.S.C. § 960(b)(1), the minimum mandatory sentence of ten

years was doubled because of the prior conviction.

The trial court considered De Veal's objections at sentencing,

accepted the bill of information, and found that the prior offense

had occurred. The court then sentenced De Veal to 240 months for

conspiracy and concurrent terms of 144 months on the importation

and aircraft smuggling counts, plus supervised release terms and a

fine. The sole issue raised on appeal is the propriety of the

enhancement under 21 U.S.C. §§ 960 and 962 based on the Kansas

conviction.
3

Analysis

We review de novo applications of the sentencing guidelines as

relates to the law. United States v. Otero, 868 F.2d 1412 (5th

Cir. 1989). Findings of fact are reviewed under the clearly

erroneous standard. United States v. Mourning, 914 F.2d 699 (5th

Cir. 1990).

The question before us is whether the Kansas conviction

constitutes a prior conviction within the meaning of 21 U.S.C.

§ 960(b)(1) which provides, in pertinent part, that when a person

commits a violation involving five kilograms or more of a

detectable amount of cocaine, "the person committing such violation

shall be sentenced to a term of imprisonment of not less than 10

years and not more than life . . ." Furthermore:

. . . If any person commits such a violation after one

or more prior convictions for an offense punishable under

this subsection, or for a felony under any other

provision of this title or title II or other law of a

State, United States, or foreign country relating to

narcotic drugs, marihuana, or depressant or stimulant

substances, have become final, such person shall be

sentenced to a term of imprisonment of not less than 20

years and not more than life imprisonment. . . .

For the purpose of section 960(b)(1), a conviction becomes

final when it is no longer subject to examination on direct appeal.

See United States v. Morales, 854 F.2d 65 (5th Cir. 1988).

De Veal's conviction was final because the period for seeking

appellate review of the state conviction had expired when she

committed the offense in the case at bar.

De Veal contends that her conviction in the state court of

Kansas in 1988 for conspiracy to sell cocaine and her present
 

1 "An episode is an incident that is part of a series, but

forms a separate unit within the whole. Although related to the

entire course of events, an episode is a punctuated occurrence with

a limited duration . . . Such events occu[r] at distinct

times. . . ." United States v. Hughes, 924 F.2d 1354, 1361 (6th

Cir. 1991).

 

2 "Our finding that the state felony conviction is a proper

predicate for sentencing enhancement within the meaning of

[§ 960(b)(1)] is further supported by an examination of the facts

of this case in light of the statute's legislative purpose to

punish recidivists more severely. After [De Veal's] state felony

conviction, which became final in [December] 1988, [De Veal] was

given ample opportunity to discontinue [her] involvement in

unlawful drug-related activity . . . [De Veal's] repeated criminal

behavior is the kind Congress targeted for imposition of a harsher

4

convictions were all one episode of an ongoing conspiracy. De Veal

therefore argues that her earlier conviction does not qualify as a

"prior conviction" under 21 U.S.C. § 960(b)(1). We are not

persuaded.

The events leading up to the two convictions constitute two

distinct episodes.1 The time between the episodes was more than

two and a half years; the first episode occurred in January 1988,

the second in August 1990. The statutory offenses charged are

completely different; in the first episode De Veal was convicted of

conspiracy to sell and distribute cocaine in violation of state

law, K.S.A. 21-3302 and K.S.A. 65-4127a; in the second episode she

was convicted of federal violations of conspiracy to import

cocaine, importation of cocaine, and aircraft smuggling. The

places were geographically distant, Kansas and New Orleans. To

accept De Veal's interpretation of the statute would largely

undermine, if not in fact defeat, the purpose of section 906(b)(1)

to target and deter recidivism.2
penalty by [§ 960(b)(1)]." Hughes, 924 F.2d at 1362.

 

3 In Belton the defendant was sentenced under U.S.S.G.

§ 4B1.1 as a career offender, based on prior convictions. The

defendant argued that one of the convictions used to bring him

within 4B1.1 was not a prior conviction because the offense

occurred during the alleged conspiracy which was the basis for his

later conviction. The court stated that: "Continuing to

participate in a drug conspiracy after having been convicted of a

drug offense manifests a propensity for recidivism as plainly as if

the conspiracy had been started from scratch." Id. at 10. The

court held that the two prior convictions were separate from one

another and affirmed the defendant's conviction.

5

We agree with our colleagues in the Seventh Circuit that drug

trafficking recidivism is to be abjured:

A career criminal is incorribible, undeterrable,

recidivating, unresponsive to the 'specific deterrence'

of having been previously convicted -- and that is a good

description of a man[/woman] who continues trafficking in

narcotics after having been arrested and convicted of a

similar crime. . . . The guidelines should not be

interpreted to give criminals an incentive to enter

conspiracies at the earliest possible opportunity.

United States v. Belton, 890 F.2d 9, 10 (7th Cir. 1989).3 De Veal

had the opportunity to discontinue her involvement in drug

trafficking after her 1988 conviction but declined to do so. She

must stand accountable for her intentional criminal actions.

AFFIRMED.