* District Judge of the District of Maryland, sitting by

designation.

1 Witte, not Wittie, is the correct spelling.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-2245

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

STEVEN KURT WITTIE,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(June 23, 1994)

Before HIGGINBOTHAM and WIENER, Circuit Judges, KAUFMAN, *

District Judge.

WIENER, Circuit Judge:

Plaintiff-Appellant the United States (the government) appeals

the district co urt's dismissal of its two-count indictment that

charged Defendant-Appellee Stev en Kurt Witte 1 with conspiracy and

attempt to import 1,091 kilograms of coca ine into the United

States. The district court dismissed the indictment on grounds2

that punishment for the indicted offense would violate the multiple

p unishments prong of the Double Jeopardy Clause of the Eighth

Amendment thro ugh inclusion of the indicted offense in relevant

conduct at sentencing for a related o ffense to determine Witte's

base offense level. We disagree with the district court's

conclusion that Witte would be subjected to impermissible multiple

punishments for the same offense and therefore reverse and remand.

I

FACTS AND PROCEEDINGS

In August 1989, undercover DEA Agent Roger Norman negotiated

with Dennis Mason in Tucson, Ariz ona to transport marijuana from

Mexico into the United States. The negotiations were unsuccessful,

but discussions between Norman and Mason resumed in Houston in June

1990. At that time, Witte, Mason, and Tom Pokorny planned to

import marijuana from Mexico and cocaine from Guatemala. Both the

Mexico deal and the G uatemala deal were going on simultaneously.

Norman's job would be to fly the contraband into the United States.

In July 1990, the Mexic an marijuana source advised that

c ocaine might be added to the shipment if there were room on the

plane or if marijuana were not available. The following month,

Norman was told that the Mexicans were ready with 4,400 pounds of

marijuana. Once Norman learned the coordinates of the airstrip,

arrangements were made to have the participants arrested in Mexico.

On August 12, 1990, Mason and four others were apprehended.

Instead of marijuana, 591 kilograms of cocaine were seized. The

following day, while still undercover, Norman met Witte to explain3

that the pilots had been unable to land in Mexico because police

had shown up at the airstrip.

Witte, Mason, and Pokorny were not charged with conspiracy and

attempt to import cocaine at the time because Mason was

incarcerated in Mexico and Pok orny's whereabouts were under

investigation. All contact between Witte and Norman ceased until

January 1991.

Norman next contacted Witte in January 1991 and asked Witte if

he were interested in purchasing 1000 pounds of marijuana from

Norman. Witte answered affirmatively, and said that he would call

Norman to tell him whether he could raise the $50,000 downpayment.

Witte telephoned three days late r from Denver, Colorado stating

that h e had the downpayment. Witte asked Norman S Q who still had

possession of Witte's horse trailer from the prior activities SQ to

return the trailer so that it could be used as a load vehicle for

the marijuana. Witte stated that he would bring from Denver a

motor home owned by Sam Kelly to use as a second load vehicle.

On February 7, 1991, Witte met Norman in Houston and informed

him that he could only come up wi th half of the downpayment.

Norman agreed to give Witte 1000 pounds of marijuana for $25,000 in

downpayment and to allow Witte three days to obtain the balance.

Witte introduced Norman to Kelly and showed Kelly's motor home and

its various hidden compartments to Norman. Fellow undercover

officers took the motor home and trailer to load the marijuana, at

which tim e Witte and Kelly took Norman to Witte's hotel room to

view the money. The two vehicles arrived loaded with approximately2 The vehicles were actually loaded with approximately 1,000

pounds of marijuana, but the government stipulated to the lesser

quantity.

3 21 U.S.C. § 841(a)(1), (b)(1)(B); 21 U.S.C. § 846.

4 21 U.S.C. § 841(a)(1), (b)(1)(B); 18 U.S.C. § 2.

5 21 U.S.C. § 841(b)(1)(B).

4 375 pounds of marijuana. 2 Witte and Kelly took possession and were

promptly arrested.

The gov ernment indicted Witte for (1) conspiring to possess

with intent to distribute more than 100 kilograms of marijuana 3 and

(2) aiding an d abetting possession with intent to distribute

marijuana (collec tively, the marijuana offense). 4 The charges

resulted from the January-February 1991 "reverse-buy" of marijuana.

Facing a statutory range of 5-40 years, 5 Witte enter ed a Rule

11(e)(1)(B) plea agreement with the government.

Witte pleaded guilty to the substantive count of aiding and

abetting possession with intent to distribute marijuana and agreed

to cooperate with the government by providing truthful and complete

information concerning the charged offens e as well as any others

about which he might be questioned. The government agreed to

dismiss count one of the indictment S Q conspiracy to possess with

intent to distribute in excess of 100 kilos of marijuana from

January 25, 1991 through Feb ruary 8, 1991 S Q and to file a §5K1.1

motion if Witte's cooperation amounted to substantial assistance.

Although not expressed in the recitation of terms of the agreement,

the government states that Witte was also promised a recommendation

to a three-year cap if he brought in Pokorny, who was involved in6 It is not clear whether the court determined the quantity

of drugs involved in the cocaine offense to be 591 kilos (the

amount seized) or 1,091 kilos (the amount seized plus an

additional 500 kilos discussed). But inclusion of either

quantity in relevant conduct results in a Guideline range of 40

(500-1500 kilos of cocaine).

5 the cocaine offense. Although Witte did not assist the government

in locating Pokorny, Witte's cooperation did cause his co-defendant

in the marijuana offense, Sam Kelly, to plead guilty.

At sentencing, the district court found that the marijuana and

cocaine offenses were part of the "same course of conduct." Over

objections by both Witte and the government, the court included the

cocaine in relevant conduct to determine Witte's base offense

level. 6 The government urged the court to accept the parties'

position that the cocaine deal was not relevant to the marijuana

deal. The government argued against inclusion of the cocaine

because it planned to indict Witte later for the cocaine offense.

If the cocaine were not included in relevant conduct, the

govern ment could seek consecutive sentences for the cocaine and

marijuana offenses. On the other hand, Witte objected to inclusion

of the cocaine because he hoped for a shorter sen tence: if only

the 375 pounds of mar ijuana were considered, the Guideline range

would be 63 to 78 months rather than 292 to 365 months.

Witte's base offense level was pegged at 40, with a Guideline

r ange of 292 to 365 months. From that base offense level, Witte

received a 2-level increase for his aggravating role in the offense

and an offsetting 2-level decreas e for acceptance of

responsibility. The court granted the government's §5K1.1 motion7 21 U.S.C. §§ 952(a), 960(b)(2)(B), 963.

8 21 U.S.C. §§ 952(a), 960(b)(2)(B) and 18 U.S.C. § 2.

9 Although the "cocaine offense" involved the importation of

cocaine and marijuana, it is referred to as the cocaine offense

to distinguish it from the 1991 activities involving

marijuana SQ the "marijuana offense."

6 for downward departure based on Witte's substantial assistance. By

virtue of that departure, Wit te was sentenced to 144 months S Q 148

months below the minimum sentence of 292 months under the predeparture Guideline range. Witte appealed, but the appeal was

dismissed due to Witte's failure to file a brief.

The government then indicted Witte and co-defendant Pokorny on

t wo additional counts: (1) conspiring to import cocaine 7 and ( 2 )

aiding a nd abetting in the attempt to import cocaine 8

(collec tively, the cocaine offense). 9 The indictment alleges

that, between August 1989 and August 1990, Witte tried to import

about 1,091 kilograms of cocaine from Central America. Witte moved

to dismiss, arguing that he had already been punished for the

cocaine offense because the cocai ne was included in relevant

conduct at sentencing for the marijuana offense. Witte also argued

that the indictment breached the plea agreement.

The distr ict court dismissed the indictment on grounds that

p unishment for the indicted offense would violate the multiple

punishments pro ng of the Double Jeopardy Clause of the Eighth

Amendment beca use the indicted offense had been included in

r elevant conduct at sentencing for the marijuana offens e to

determine Witte's base offense level. The court's conclusion on10 The court stated that "[t]he effect of permitting such

carving also defeats the spirit and intent of the plea bargaining

process. While the government may give a benefit during the plea

bargaining process, only the courts are permitted to take it

away." The minute entry reads, "[T]he motion to dismiss on the

basis of double jeopardy is granted."

11 United States v. Vasquez-Rodriguez , 978 F.2d 867, 870 (5th

Cir. 1992); Baker v. Metcalfe , 633 F.2d 1198, 1201 (5th Cir.),

cert. denied , 451 U.S. 974, 101 S. Ct. 2055, 68 L. Ed. 2d 354

(1981).

12 U.S. C ONST . amend. V.

13 North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct.

711, 23 L. Ed. 2d 656 (1969).

7 the breach of the plea agreement issue is not so clear, but it does

not appear that the indictment was dismissed on that basis. 10 The

government timely appealed the dismissal of the indictment.

II

ANALYSIS

1. Double Jeopardy

A. Standard of Review

We review de novo the dismissal of the cocaine indictment on

grounds of double jeopardy. 11

B. Multiple Punishments Prohibited?

The Double Jeopardy Clause provides t hat no one shall "be

subject for the same offense to be twice put in jeopardy of life or

lim b ." 12 The Supreme Court has left no doubt that the clause

protects defe ndants from both multiple prosecutions and multiple

punishments for the "same offense." 13 Witte argues that the

government's present attempt to punish him for the cocaine offense

v iolates double jeopardy's multiple punishments prong: he has14 We emphasize that the indictment or the prosecution does

not run afoul of the prohibition against multiple prosecutions.

Witte is not subject to multiple prosecutions for the cocaine

offense SQ

he was never placed in jeopardy for that offense. Our

concern is with the punishment that would result if Witte were to

be prosecuted for the cocaine offense: he is potentially subject

to multiple punishments for the cocaine offense.

15 Missouri v. Hunter , 459 U.S. 359, 367, 103 S. Ct. 673, 74

L. Ed. 2d 535 (1983) (quoting Whalen v. United States , 450 U.S.

333, 344, 101 S. Ct. 1137, 1145, 67 L. Ed. 2d 275 (1981)).

16 Jones v. Thomas , 491 U.S. 376, 381, 109 S. Ct. 2522, 105

L. Ed. 2d 322 (1989); Garrett v. United States , 471 U.S. 773,

778, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985); Missouri v.

Hunter , 459 U.S. 359, 366-68, 103 S. Ct. 673, 74 L. Ed. 2d 535

(1983); Pearce , 395 U.S. at 711; United States v. Martinez , 931

8 already been "punished" for the cocaine offense charged in the

subject indictment.

At the outset, we note the importance of distinguishing double

jeopardy's prohibition of multiple prosecutions from its protection

against impermissible multiple punishments. Although multiple

prosecutions, i.e., more than one prosecution by the same sovereign

for the same offe nse, always violate double jeopardy, 1 4 multiple

punishments for the same offense may or may not violate double

jeopardy. That is because Congress (or a state legislature)

determines the scope of the const itutional protection in the

multiple punishments context. If the legislature intended to

impose multiple punishments for the same offense, imposition of

such sentences does not violate the Constitution. 15 The purpose of

the Double Jeopardy Clause in the multiple punishments context is

to ensure that the punishment assessed does not exceed that

authorized by the legislature (either the length of the sentence or

the number of times that the sentence is imposed). 16F.2d 851, 853 (11th Cir.), cert. denied

, U.S. , 112 S. Ct.

268, 116 L. Ed. 2d 221 (1991).

17 Thus both parties assume that the "same offense" element

is satisfied under the test enunciated in Blockburger v. United

States , 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

But clearly the statute under which Witte was convicted and the

statutes under which he is now indicted proscribe different

offenses, i.e., aiding and abetting possession of a controlled

substance (21 U.S.C. § 841(a)(1); 18 U.S.C. § 2), and conspiring

to import, and aiding and abetting in the attempt to import, a

controlled substance (21 U.S.C. §§ 952(a), 963; 18 U.S.C. § 2).

Cf. Hunter , 459 U.S. at 367; United States v. Cruce , 21 F.3d 70,

75-76 (5th Cir. 1994). We address the issues in this case,

however, as they were presented by the parties.

18 Since this appeal was argued and taken under submission,

another panel of this court has addressed the same issue that is

now before us and has concluded, as we do, that double jeopardy

does not preclude the subsequent prosecution and conviction of

conduct that was earlier included in relevant conduct. See

Cruce , 21 F.2d 70.

19 United States v. Koonce , 945 F.2d 1145 (10th Cir. 1991),

cert. denied

, U.S. , 112 S. Ct. 1695, 118 L. Ed. 2d 406

9 For purposes of double jeopardy, the drugs involved in the

"same offense" SQ

co nspiring and attempting to import cocaine S Q were

i ncluded in relevant conduct to sentence Witte for the marijuana

offense and are the subject of the dismissed indict ment. 1 7 The

pertinent iss ues are (1) whether inclusion of the cocaine in

relevant conduct at sentencing for the marijuana offense punished

Witte for the cocaine offense, and if so, (2) whether Congress has

authorized single or multiple punishment for the cocaine offense.

This double jeopardy issue is res nova in this circuit, but the

Second and Tenth Circuits have considered it. 18 Both have concluded

that a defendant's acts included as relevant conduct in calculating

punishment for one offense may not later form the basis of another

indictment without violating double jeopardy. 19and U.S. , 112 S. Ct. 1705, 118 L. Ed. 2d 413 (1992);

United States v. McCormick , 992 F.2d 437 (2d Cir. 1993).

20 Id. Koonce was relied on by the district court in

dismissing the indictment.

21 This fact does not distinguish Koonce from the case before

us for purposes of double jeopardy analysis. If, like Koonce,

Witte had received the statutory maximum sentence for all of the

drugs (365 months), it might appear wasteful SQ though not a

violation of double jeopardy SQ to prosecute him for the cocaine

offense. But as Witte's counsel admitted at oral argument, the

government does recognize some benefit from a second conviction:

it receives a $50 cost assessment to balance the budget, and more

importantly, the second conviction serves as a predicate for

enhanced punishment under recidivist statutes. That second

conviction reflects Witte's actual recidivist status.

10 In United States v. Koonce

, 20 the defendant was convicted of

distributing 443 grams of methamphetamine that he had mailed to his

cohort. The district court sentenced him, however, for 7,869

grams. That quantity included 443 grams proved at trial, 963 grams

found in his home, and 6, 463 grams that Koonce was purported to

have sold on other occasions. Inclusion of the additional grams in

"relevant con d uct" increased Koonce's offense level under the

Guidelines from 32 (range: 188 to 235 months) to 34 (range: 235-

293 months). Unlike Witte, Koonce received the maximum statutory

sentence for all of the drugs (240 months). 21

The gover nment then brought a second indictment charging

Koonce with the 963 grams of methamphetamine found in his home.

The Tenth Circuit employed a three-step analysis to determine

whether doubl e jeopardy was thereby violated: First, had Koonce

been punished for the methamphetamine found at his residence?

Second, if so, did Congress intend that an accused in Koonce's

position receive cumulative SQ although not necessarily consecutive SQ22 Id. (emphasis added).

23 Id. , 945 F.2d at 1151.

11 sentences from two separate proceedings if both sentences punish

the accused for exactly the s ame conduct? Finally, if the first

two inquiries are answered affirmat ively, does the second

punishment constitute "double" punishment even though the sentence

derived therefrom is specified to run concurrently with the first

sentence?

In answering th e initial inquiry, the court concluded that

Koonce had been punished for the drugs found at his residence

because his base offense level would have been lower had they not

been included via the relevant conduct provisions of the

Guidelines. The "real offense" approach of the Guidelines required

that Koonce be punished for the acts included in relevant conduct;

therefore, concluded the Koonce court, he was punished. 22

Second, the Koonce court found that the government had failed

to point out "any au thority holding that Congress intended to

punish a defendant a second time for conduct that [had] previously

been aggregated into the base offense level for a related sentence

in an earlier prosecution." 2 3 The court relied on (1) §3D1.2's

grouping requirement, which manda tes that a defendant's base

offense level be determined by aggregating drug quantities from

multiple counts in a single proceeding, and (2) the Sentencing

Commission's announced goal of preventing prosecutorial charge24 Id. , 945 F.2d at 1151-52; United States Sentencing

Commission, Guidelines Manual , Ch. 1, Pt. A.4(a), policy

statement (1993).

25 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985).

12 manipulation, 24 to determine that Congress intended only one

punishment ra ther than multiple punishments. The purpose of

grouping is to ensure that an accused receives the same sentence

that he would have received had he be en charged and convicted of

one narcotics count based on the same totality of facts.

Recognizing that Koonce had received the statutory maximum sentence

possible for the total quantity of drugs, the Tenth Circuit

concluded that Congress could not have intended a larger punishment

if a defendant were prosecuted in two proceedings.

Third, the Koonce court concluded that even if the defendant's

second sentence were specified to run totally concurrent with the

first, a second sentence would violate double jeopardy. The court

relied on Ball v. United States

. 25 Ball, a previously convicted

felon, was convicted in one proceeding for (1) the "receipt" of a

firearm and (2) the "possession" of a firearm. He was sentenced to

consecutive terms of imprisonment. On appeal, the Fourth Circuit

remanded with instructions t o modify the sentences to make them

co ncurrent. The Supreme Court concluded that, as both offenses

were established by the same criminal act, Congress had not

intended to subject Ball to two convictions

. Thus "one of the

convictions, as well as its concurrent sentence, [was] unauthorized26 Ball , 470 U.S. at 864.

"A separate conviction, apart from the concurrent sentence,

has potential adverse collateral consequences. . . ." Id. at 865

(noting the potential for an increased sentence under a

recidivist statute, possible delays in parole eligibility, and

the societal stigma that results from the conviction itself).

27 Koonce , 945 F.2d at 1153. We do not disagree, but note

that any sentence is punishment. The issue on which we part ways

with the Tenth Circuit is whether a second punishment is

authorized by Congress, the second element of the Tenth Circuit's

analysis.

28 992 F.2d 437 (2d Cir. 1993).

13 punishment for a separate offense." 26 In Koonce, the Tenth Circuit

relied upon these statements to posit that a concurrent sentence

c an be "punishment." 2 7 As the Tenth Circuit had already decided

that Congress had authorized only one punishment for that criminal

act, the court concluded that this second punishment violated

double jeopardy.

I n United States v. McCormick

, 28 the Second Circuit a dopted

Koonce 's analytical framework. It affirmed the dismissal of bank

fraud charges for acts that were used in a prior case as relevant

conduct to compute the defendant's base offense level. McCormick

was charged with bank fraud in Connecticut that resulted in a

$75,000 loss. Subsequent to that indictment, McCormick was charged

for bank fraud in Vermont that allegedly resulted in a $4 million

loss. He was then convicted on the Connecticut bank fraud charge.

At sentencing for the Connecticut conviction, the loss was

calculated to be in the $2.5-5 million range, a sum that obviously

included the Vermont loss. McCormick's motion to dismiss the

Vermont bank fraud charges on double jeopardy grounds was granted.29 992 F.2d at 440; see U.S.S.G. §2F1.1, comment. (n. 6)

("The cumulative loss produced by a common scheme or course of

conduct should be used in determining the offense level,

regardless of the number of counts of conviction.").

30 992 F.2d at 440.

14 The Second Circuit determined that inclusio n of the Vermont

amount in relevant conduct amounted to punishment for the Vermont

fraud in the Connecticut proceedings, and that a second punishment

for the Vermont loss would violate double jeopardy: The Sentencing

Guideline s' grouping provision requires that defendants in fraud

cases, like drug offenders, be assessed "a single punishment for a

set of similar acts." 29 "The Guidelines achieve consistency in

sentencing for fraud cases by grouping all of the relevant conduct

and applying a single offense level to the whole course of

conduct." 30 The Second Circuit concluded that Congress apparently

did not intend to allow a defenda nt to be p rosecuted for conduct

already used to increase his or her offense level. Being skeptical

of the way that the Tenth and Second Circuits reached those

results, we now examine the double jeopardy question independently.

1. Inclusion of Cocaine in Relevant Conduct:

Punishment?

First, the government contends that inclusion of the cocaine

in relevant conduct to calculate the defendant's base offense level

is legally no different than enhancing his sentence by increasing

a base offense level to a higher level under the Guidelines because

of prior criminal activity. As increasing a base offense level by

use of prior crimes is not "punishment" for prior crimes, argues

the government, neither is using prior crimes to calculate a base31 If a defendant is convicted of murder and given a life

sentence, and is later convicted for having kidnapped the murder

victim, the sentencing court may consider the fact that the

kidnaping victim was murdered when assessing a death penalty

rather than a life sentence without violating double jeopardy.

Williams v. Oklahoma , 358 U.S. 576, 585-86, 79 S. Ct. 421, 3 L.

Ed. 2d 516 (1959).

32 Sekou v. Blackburn , 796 F.2d 108, 111-12 (5th Cir. 1986)

("[C]onsideration of other crimes at sentencing does not

implicate the Double Jeopardy Clause because the defendant is not

actually being punished for the crimes so considered." 796 F.2d

at 112.).

15 offense level punishment for those prior crimes. Thus, concludes

t he government, Witte has not been "punished" for the cocaine

o ffense. Witte counters that although enhancement of a sentence

may not be punishment, counting the cocaine to determine his base

offense level, with a corresponding 287-month increase in the

maximum possible length of his sentence, is punishment.

It is well-settled that using prior crimes to " enhance " a

sentence does not impinge on double jeopardy, because defendants

are not "punished" for crimes so considered. 31 Pre-Guidelines,

uncharged criminal conduct could be "considered" at sentencing as

aggravating circumstances and could still form the basis of a later

indictment, conviction, and sentence without violating double

jeopardy. 32 The "real offense" approach to relevant conduct,

however, may well lead to the conclusion that Witte was "punished"

for the cocaine offense.

Stepping back from the somewhat artificial distinction between

enhancement and calculation of a base offense level, we examine

whether, pre-Guidelines, the prosecution and punishment of Witte

for the cocaine offense would have been foreclosed because Witte's33 358 U.S. 576.

34 358 U.S. at 585.

35 358 U.S. at 586.

36 See supra note 17.

16 coc aine activities were considered in imposing sentence for the

marijuana offense. W illiams v. Oklahoma 33 indicates that the answer

is no. A s the Supreme Cour t noted in W illiams

, the sentencing

court "is authorized, if not required, to consider all of the

mitigating and aggravating circumstances involved in the crime." 34

And in view of the obvious fact that, under t he law of

Oklahoma, kidnaping is a separate crime, entirely

distinct fr om the crime of murder, the court's

consideration of the murder as a circumstance involved in

the kidnaping cri me cannot be said to have resulted in

punishing petitioner a second time for the same offense,

nor to have denied to him due process of law in violation

of the Fourteenth Amendment. 35

In Witte's case, the sentencing court is required by the

Guideline's relevant conduct rules to consider the circ umstances

surrounding the particular offense of conviction. We find it clear

that, like the crimes of kidnap and murder of the kidnap victim in

Williams

, the marijuana charge to w hich Witte pleaded guilty and

was sentenced is an offense separate and distinct from the cocaine

offense. 36 If, in W illiams

, consideration of the conduct

constituting the separa te offense of murder to increase the

severity of the sentence for kidnaping was not punishment for the

conduct so considered, then the use of relevant conduct to increase

the punishment of a charged offense does not punish the offender37 Williams , 358 U.S. at 585.

17 for the relevant conduct. Of course, there is double use of single

acts, but Williams apparently permits this. Williams was given a

life sentence for murder and then the same murder was used to step

up his punishment for kidnaping to death.

The only ostensible missing link in this analysis lies in the

answer to the question whether, when Williams was sentenced to life

imprisonment for murder, the sent encing court considered the

kidnaping of the murder victim. Although not clear from the text

of Williams

, we may fairly assume that the uncharged kidnaping was

considered when Williams was sentenced for murder. After all, the

sentencing court "[was] authorize d, if not required, to consider

all of the mitigating and aggravating circumstances involved in the

crime." 37 If so, then Williams is this case )) pre -Guidelines.

The fact that Witte's double jeopardy challenge arises post

Guidelines does n ot change the analysis of the punishment issue

presented in Williams . Before adoption of the Guidelines, judges

exercised their sound discre tion in determining the appropriate

level of punishment within established statutory ranges of

imprisonment. Post-Guidelines, judges are still required to

determine a sentence within an establ ished statutory range. The

Guideline s simply provide a formulae for what used to be left to

trial court discretion. To improve consistency in sentencing, the

G uidelines attempt to accommodate multiple uses of conduct.

Specifically, the Guidelines require that when, in ca ses such as

Witte's, the sentencing court has considered the marijuana38 U.S.S.G. §5G1.3(b). This subsection will be discussed in

further detail in Part B, Section 2 of this opinion.

39 United States v. McCormick , 992 F.2d 437, 442 n.1 (2d Cir.

1993) (Mahoney, J., dissenting) (noting that the majority

properly recognized that "in the sentencing area, Congressional

intent is reflected in the Sentencing Guidelines.").

40 The same is true if Witte is convicted in two separate

proceedings for these offenses. His punishment cannot exceed 365

months in length. As we will demonstrate, this is accomplished

by imposing concurrent sentences.

18 conviction in determining the offense level for the cocaine

offense, the court must impose concurrent sentences. 38

Even if we assume arguendo that Williams does not absolutely

dispose of this threshold punishment question, we would not end our

analysis at this juncture. Rather, we accept for purposes of our

analysis that Witte has been punished by inclusion of the cocaine

activities in rel evant conduct and proceed to consider whether a

second punishment is nonetheless permitted by Congress.

2. Guidelines Authorize Multiple Punishment

We therefore turn to the Guidelines to determine the

appropriate punishment SQ single or multiple SQ to be assessed. 3 9 The

Tenth Circuit's observa tion that grouping rules under the

Guidelines prevents double counting and thus count manipulation is

accurate. If Witte had been convicted in one proceeding of both

the cocaine and marijuana offenses, grouping of counts SQ aggregation

of the drug quantities SQ would result in a Guideline range of 292-

365 months. The high end of the range serves as a cap to the

length of the sentence (punishment) that Witte can receive for both

offenses. 40 But the question here is whether Congress intended41 Id. , 945 F.2d at 1151.

42 U.S.S.G. §5G1.3.

19 Witte to be subject to multiple punishments (a second punishment)

for the cocaine SQ that had already been included in relevant conduct

for a related sentence SQ as long as the aggregate length of his

sen tences did not exceed the lesser of the cap provided by the

range or the statutory maximum sentence.

The Tenth Ci rcuit found no authority in the Guidelines that

Congress intended to punish a defendant a second time for conduct

that has previously been aggregated into the base offense level for

a related sentence in an earlier prosecution. 41 But that court did

not have the benefit of the present §5G1.3(b) of the Guidelines,

which Witte concedes in his motion to dismiss would require

imposition of concurrent sentences if he were tried and convicted

of the cocaine offense. Section 5G1.3 provides in pertinent part:

Imposition of a Sentence on a Defendant Subject to an

Undischarged Term of Imprisonment

(b) If

. . . the undischarged term of imprisonment

resulted from offense(s) that have been fully

taken into account in the determination of the

offense level for the instant offense, the

sentence for the instant offense shall be

imposed to run concurrently to the

undischarged term of imprisonment. 42

The commentary to §5G1.3(b), application note 2, reflects that

Subsection (b)

. . . addresses cases in which the conduct

resulting in the undischarged term of imprisonment has

been fully taken into acc ount under §1B1.3 (Relevant

Conduct) in determining the offense level for the instant

offense. This can occur, for example where a defendant

is prosecuted in both federal and state court, or in two43 Two separate indictments were brought against Witte in the

same federal jurisdiction, the Southern District of Texas

(Houston division). Although subsection (b) discusses "two or

more federal jurisdictions," Witte does not argue that §5G1.3(b)

does not apply on this basis. A common sense approach to that

language is that subsection (b) also addresses prosecutions in

"the same federal jurisdiction twice," i.e., the Southern

District of Texas and the Southern District of Texas. Subsection

(b) probably assumes that multiple counts resulting from the same

course of conduct would be brought together if they occur in the

same federal jurisdiction. Just as there are valid reasons for

bringing two separate indictments against a defendant in two

federal jurisdictions, there are valid reasons for bringing two

separate indictments against a defendant in the same

jurisdiction. In this case, the government did not believe that

the offenses were part of the same course of conduct and had not

completed its investigation of the cocaine offense.

44 U.S.S.G. §5G1.3, comment. (n.2).

45 United States v. Cruce , 21 F.3d 70 (5th Cir. 1994). In

Cruce , this circuit indicated its disagreement with the Tenth and

Second Circuits' views in Koonce and McCormick . Therefore, in

this opinion, this panel is not free to adopt the approach of

those cases. In Cruce , as in this case, it is to be noted that

the defendants faced punishment for conduct that had not been

charged, but that had been included in relevant conduct when they

were sentenced in an earlier prosecution. Cruce expressly states

that consideration of relevant conduct does not punish defendants

for relevant conduct so considered but for the offense of

conviction

. Id. at 75 n.8. Despite the temporal differences

noted by the majority in McCormick between those circumstances

and the circumstances set forth in §5G1.3(b), the court in Cruce

concluded that §5G1.3(b) applied to the defendants because "it is

clear that Congress and the Sentencing Commission anticipated the

imposition of punishment )) whether concurrent or consecutive )) in a

second proceeding and, thus, did not intend to preclude such

proceeding." Id. at 77 n.11. Accordingly, Cruce held that the

second punishment did not violate double jeopardy.

20 or more federal jurisdictio ns, 43 for the same criminal

conduct or for different criminal transactions that were

part of the same course of conduct. 44

T he commentary clearly permits a defendant to be prosecuted S Q and

sentenced SQ in more than one feder al proceeding for different

criminal offenses that were part of the same course of con duct

. 45

More importantly, a defendant's base offense level for each offense46 U.S.S.G. §1B1.3(a).

21

of conviction )) unless the Guidelines ex pressly provide

otherwise )) must be determined on the basis of a ll relevant

conduct

. 46 The principle that all relevant conduct be considered

in determining a defendant's base offense level is neither optional

nor hortatory; it is mandatory.

Read in pari materia, §5G1.3(b) clearly provides t hat the

government may convict a defendant of one offense and punish him

for all relevant conduct; then indict and convict him for a

different offense that wa s part of the same course of conduct as

the first offense )) and sentence him again for all relevant conduct.

To repeat, this proposition merely reflects Congress's spe cific

intent that all relevant conduct be considered in determining a

defendant's sentence. Consequently, we find no basis for

distinguishin g the situation described by §5G1.3(b) from the one

before us today.

Like it or not, we are satisfied that §5G1.3 reflects

Congress's intent to prevent punishment from being larger if the

government chooses to proceed with two different proceedin g s SQ and

that Congress accomplishes this intent )) not by foreclosing a second

prosecution but by directing that the length of the resulting term

of imprisonment be no greater than that which would have resulted

from pr osecution and conviction on both counts in a single

proceeding. Section 5G1.3(b), therefore, accomplishes in

successive proceedings what grouping of counts pursuant to §3D1.2

accomplishes in a single proceeding. Thus §5G1.3(b) is "authority47 Koonce , 945 F.2d at 1151.

22

. . . that Congress intended to punish a defendant a seco nd time

f or conduct that has previously been aggregated into the base

o ffense level for a related sentence in an earlier prosecution,"

authority that the Tenth Circuit )) without the benefit of §5G1.3(b)

in its present form )) found lacking when it analyzed Koonce's double

jeopardy challenge. 47

The Secon d Circuit had the benefit of §5G1.3(b) but

distinguis hed the situation in M cCormick from that described in

§5G1.3(b). That distinction concerns w hen the defendant will be

punished for both offenses in a single sentencing proceeding, i.e.,

whether the defendant will be punished for both offenses at

sentencing for the first offense (McCormick's situation) or at

senten cing for the second offense (the Second Circuit's view of

§5G1.3(b)). But in our view, under §5G1.3(b) and relevant conduct

principles, the d efendant is punished for both offenses b oth at

sentencing for the first offense and at sentencing for the second

offense.

With all due respect, we believe that the Second Circuit's

analysis of §5G1.3(b) suffers from two errors: first, it

ignores )) under §5G1.3(b) )) the ap p lication of relevant conduct

principles to sentencing for the first offense; second, it does not

consider McCormick's situation at the relevant stage addressed by

§5G1.3(b), i. e., at the sentencing stage for purposes of the48 992 F.2d at 441 n.3. Again, it is the punishment or the

sentence imposed for the cocaine offense, not the prosecution for

that offense, that implicates double jeopardy concerns. If

multiple punishments are impermissible, we foreclose a

prosecution for the cocaine offense not because the prosecution

would violate double jeopardy, but because it would be a waste of

judicial resources to proceed to the sentencing stage only to

have imposition of a sentence barred by double jeopardy.

49 992 F.2d at 441 n.3.

23 instant offense. 48 The M cCormick court did not consider that, a t

sentencing for the second offense, McCormick could be punished

again for all relevant conduct. Section 5G1.3(b) assumes that a

defendant has been prosecuted and convicted for the instant

offense )) an offense that was part of the same course of conduct as

an offense for which there is already a conviction and for which an

appropriate Guidelines sentence h as been assessed (hence the

application o f relevant conduct at the first sentencing

proceeding) )) and that it has proceeded to the sentencing stage.

Nevertheless, the Second Circuit recognized that in a case

governed by subsection (b), the Sentencing Commission would require

concurrent sentencing to avoid multiple punishments. 49 Thus, two

sentences , though concurrent, have been authorized by the

legislature i n this situation, and thus would not violate double

jeopardy. The significance of this analysis should be obvious: it

is not the subsequent prosecution that is affected, but the

subsequent sentence that may be pronounced and the manner in which

such sentence may be imposed, assuming that the permitted

subsequent prosecution produces a conviction.50 U.S.S.G. §5G1.3, comment. (n.2, backg'd.).

24 C. Sentencing for the Cocaine Offense

Witte argues that the drafters of §5G 1.3(b) could not have

foreseen the c ircumstances of this case: a 5K1.1 motion in the

first prosecution that will not pass to the second prosecution.

Witte insists that it is unfair to allow the government S Q which

received substantial assistance from a defendant in its initial

prosecution of that defendant SQ to seek imposition of a longer

,

though con current, second sentence. In effect, Witte is asking

this court to adopt a per se rule that the second sentence imposed

cannot exceed the first if the first resulted from a §5K1.1 motion,

i.e., to "pass" the effect of a 5 K1.1 motion from one sentencing

proceeding for one offense of conviction to a subsequent sentencing

proceeding for another offense of c onviction. But Witte's

otherwise appealing argument ignores an imp ortant aspect of the

substantial assistance that he gave: It related only to the

marijuana offense, not the cocaine offense. Significantly, Witte's

argument also ignores application not e 2 to §5G1.3(b) and the

ba ckground to this section, which makes clear that §5G1.3(b) is

intended to result in the appropriate incremental punishment that

most nearly approximates the sentence that would have been imposed

had both sentences been imposed at the same time. 5 0 This is

accomplished both by (1) imposition of a concurrent sentence, and

(2) giving credit for time served.

If Witte is ultimately convicted of the cocaine offense, the

base offe nse level will necessarily be the same as that for the51 See U.S.S.G. §5G1.3(b), comment. (n.2).

52 The sentencing court could even depart from the applicable

Guideline range in response to a §5K1.1 motion.

25 marijuana offense because relevant conduct is the same for both the

marijuana and cocaine offenses. Even so, there may be still be

adjustments to the base offense level. For example, that level

could be increased for an aggravating role or decreased for

acceptance of responsibility. 51 For illustrative purposes, we

a ssume that the offense level will again be 40, and t hat the

Guideline range will be 292-365 months. 52 The sentencing court will

then have to determine the appropriate total punishme nt for b oth

offenses. For purposes of this illustration, we choose 292 months

as the a ppropriate total punishment. Witte must then receive

credit for time served. If, for example, Witte shall have served

30 months for the marijua na offense by the time of the second

sentencing, the sentencing court must credit Witte with 30 months

served, and impose a sentence of 262 months (292 minus 30) to run

concurrently with the remai nder of Witte's sentence for the

marijuana offense. As the commentary to §5G1.3(b) emphasizes, the

262-month sentence is not a departure from the Guidelines, but

reflects a credit for Guidelines purposes for time that Witte has

served. Under 5G1.3(b), then, Congress allows "double punishment"

for the cocai ne offense but ameliorates its harsh impact and

prevents punishment from exceeding the statutory maximum by causing

sentences for both the marijuana and cocaine offenses to run

concurrently and by giving credit for time served.53 United States v. Valencia , 985 F.2d 758, 760 (5th Cir.

1993).

54 Valencia , 985 F.2d at 761 (citing United States v.

Huddleston , 929 F.2d 1030, 1032 (5th Cir. 1991)).

55 United States v. Hernandez , 996 F.2d 62, 64 (5th Cir.

1993).

26 We turn now to the alternative basis urged by Witte for

dismissal of the indictment.

2. Breach of Plea Agreement

Witte claims that the government breached the plea agreement

by "re-indicting" the "same conspiracy." Again, as part of the

plea agreement for the marijuana offense, the government dismissed

the first count against Witte, conspiring to possess with intent to

distribute more than 100 kilograms of marijuana fromJanuary 25,

1991 to February 8, 1991.

A. Standard of Review

Whether the government has violated the terms of the plea

agreement is a question of law, which on appeal is reviewed de

novo. 53

B. No Breach

In determining whether the government has breached a plea

agreement, the court must determine "whether the government ' s

conduct is consistent with the defendant's reasonable understanding

of the agreement." 54 The defendant must prove the underlying facts

that establish a breach by a preponderance of the evidence. 55

During the sentencing hearing, Witte expressed a belief that

he would be immune from prosecution in other cases. But Witte's27

counsel immediately contradicted Witte's statement. Additionally,

his counsel asked the court not to include the cocaine because it

would deprive Witte of the opportunity to plead not guilty and go

to trial on that offense, not SQ as Witte contends SQ so that he could

argue "breach of the plea agreement." Witte was expressly informed

by the court that the government wanted to indict him later on the

cocaine offense, and Witte expressed his understanding of this

advice. Finally, Witte's substantial assistance did not relate to

the cocaine offense, but only to the marijuana offense. Thus even

if Witte somehow subjectively clung to the belief that he could not

be prosecuted for the cocaine offense, that is not a reasonable

understanding of the plea agreement. The government has not

breached that agreement.

Witte nevertheless contends that the government's present

indictment charges him with the count that was dismissed pursuant

to the plea agreement. We disagree. This indictment charges Witte

with conspiring and attempting to import 1,091 kilograms of cocaine

between August 1989 and August 1990. The government dismissed a

count of conspiracy to possess with intent to distribute in excess

of 100 kilos of marijuana from January 25, 1991 through February 8,

1991. Witte argues, though, that the same conspiracy underlies

both counts, and that the government is bound under either of two

doctrines SQ (1) the law of the case, or (2) collateral estoppel SQ by

a "same conspiracy" finding by the sentencing court. Witte

premises his argument on the novel idea that the sentencing court's

"same course of conduct" finding constitutes a "same conspiracy"56 U.S.S.G. §1B1.3(a)(1)(A), (a)(1)(B), (a)(2).

57 United States v. Marable , 578 F.2d 151, 154 (5th Cir.

1978). In his brief, Witte demonstrates that the Guatemala

cocaine and Mexico marijuana deals were part of the same

conspiracy. Witte's comparison is inapposite: the relevant

inquiry is whether both foreign deals (the cocaine offenses) were

part of the same conspiracy as the deal that occurred in the

United States (the marijuana offenses).

28 finding. This argument is unavailing.

A same conspiracy finding may be necessary to include the acts

and omissions of others as relevant conduct, but it is not

necessary to include Wi tte's own acts in relevant conduct. 5 6 The

PSR Addendum refers to Witte's "agreement" (i.e., conspiracy), but

the district court never specifically stated that he adopted the

PSR or that specific finding. The only express finding by the

sentencing court on this issue is that the relevant conduct spelled

out in the PSR was "relevant conduct related to the charge to which

he pleaded guilty." Neither did the sentencing court find that the

cocaine and marijuana offenses were part of the "same conspiracy"

count that was dismissed.

Even if on dismissing the indictment the district court had

found that the marijuana and cocaine offenses were part of the same

conspiracy, we would review such a finding for clear error only.

Under the facts of this case, it is obvious that two distinct

conspiracies were involved: they were separated by time; they

involved different co-conspirators; they involved different

statutory offen ses; they included different overt acts in each

offense charg ed; and they occurred in different geographical

locations. 57 Witte clearly has not been indicted for the same29

conspiracy count that was dismissed pursuant to the plea agreement.

III

CONCLUSION

For the foregoing reasons, we conclude that the district court

improperly dismissed the indictment on double jeopardy grounds.

Neither may the court's dismissal of the indictment be sustained on

grounds that the government breached the plea agreement. The

dismissal of the indictment is therefore REVERSED and the case

REMANDED for proceedings consistent with this opinion.