UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-10933

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VICTOR DEVANE DOMINO,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

( August 22, 1995)

Before SMITH, WIENER, and DeMOSS, Circuit Judges.

WIENER, Circuit Judge.

Defendant-Appellant Victor Devane Domino appeals a final

judgment sentencing him under the 1993 versi on of the Sentencing

Guidelines to a total of ninety-six months in prison and a one-year

term of supervised release for an offense concluded in 1990. As we

determine that this sentence violates the ex post facto clause of

the United States Constitution, we vacate and remand to the

district court for resentencing pursuant to the 1989 version of the

Sentencing Guidelines.

I

FACTS AND PROCEEDINGS

Domino was indicted in May 1990, in a three-count indictment2

charging (1) possession of phenylacetic aci d with intent to

manufacture a controlled substance in violation of 21 U.S.C. §

841(d)(1) (Count One); and (2) unlawful use of a telephone to

facilitate the possession of a listed chemical with intent to

manufacture a controlled substance in violation of 21 U.S.C. §

843(b) (Counts Two and Three). In accordance with a plea

agreement, Count One was dismissed after Domino pleaded guilty to

the communication offense charged in Counts Two and Three. The

factual resume accompanying Domino's guilty plea sta ted the

following:

In the Dallas Division of the Northern District of Texas,

on March 16, 1990, at approximately 9:45 a.m. and on

March 16, 1990, at approximately 3:15 p.m. the defendant

used a communication facility, namely a telephone to call

an undercover agent with the Drug Enforcement

Administration (DEA) about purchasing phenylacetic acid,

a listed chemical, for the purpose of manufacturing a

controlled substance.

An addendum to the factual resume stated in relevant part:

The phenylacetic acid referred to in Counts 2 and 3 of

the Indictment and the Factual Resume, a one-hundred ten

pound drum of phenylacetic acid, was to be used to

manufacture amphetamine, a controlled substance.

Domino's sentencing hearing was scheduled for October 4, 1990,

but Domino did not appear for sentencing on either that day or the

next--the date to which his sentencing had been postponed. The

hearing was then postponed indefinitely and a warrant was i ssued

for Domino's arrest. Domino was eventually arrested and sentenced

in 1994.

A presentence investigation report (PSR) had been prepared in

1990 in anticipation of Domino's sentencing hearing scheduled for

that year (the 1990 PSR). The 1990 PSR was calculated pursuant to

the 1989 Sentencing Guidelines and established a base offense level1 U.S.S.G. § 2D1.6 (1989).

2 See U.S.S.G. § 1B1.2 (1989) (directing court to determine the

offense gu ideline section most applicable to the offense of

conviction. " P rovided

, however, in the case of conviction by a

plea of guilty or nolo contendere containing a s tipulation that

specifically establishes a more serious offense than the offense of

conviction, determine the offense guideline section.

. . most

applicable to the stipulated offense."); see also U.S.S.G. § 2D1.1

(1989) (applicable guideline for more serious offense of unlawful

manufacturing, importing, exporting, or trafficking, including

possession with intent to commit these offenses).

3 of thirty-two for Domino's sentence. The probation officer who

prepared the 1990 PSR noted in that report that the applicable

guideline for a violation of 21 U.S.C. § 843(b)--Domino's offense

of conviction--was U.S.S.G. § 2D1.6, which listed a base offense

level of twelve. 1 The officer determined, however, that Domino's

guilty plea contained a stipulation that established the more

serious offense of possession under 21 U.S.C. § 841(d)(1). She

therefore calculated a base offense level of thirty-two--the base

offense level for the more serious offense--pursuant to U.S.S.G. §

1B1.2. 2

Domino objected to the 1990 PSR, arguing that the base offense

level contained in that report was calculated on the basis of the

errone ous conclusion that he had stipulated to the more serious

offense of possession under 21 U.S.C. § 841(d)(1). Domino insisted

that he did not stipulate that he actually possessed the

phenylacetic acid in issue, only that he used the telephone to

facilitate possession.

Prior to Domino's sentencing hearing in 1994, the 1990 PSR was

updated to incorporate the 1993 version of the Sentencing3 See U.S.S.G. § 1B1.11 (a) (1993) (directing court to apply

sentencing guidelines in effect on date that defendant is

sentenced).

4 See U.S.S.G. § 1B.11 (b) (1993):

(b) If the court determines that use of the Guidelines

Manual in effect on the date that the defendant is

sentenced would violate the ex post facto clause of the

United States Constituti o n, the court shall use the

Guidelines Manual in effect on the date that the offense

of conviction was committed.

5 See U.S.S.G. § 2D1.11(a)(1) (1993) (base offense level for

unlawful possession of over 20 KG of phenylacetic acid).

4 Guidelines (the 1994 PSR). 3 In contrast to the 1989 version of the

guidelines, Section 2D1.6 of the 1993 Sentencing Guidelines

directed the court to calculate the base offense level for the

offense underlying the communication offense, rather than assign a

base offense level of twelve. Concluding that the offense level

computations were more favorable to Domino under the 1993

Guidelines than the 1989 Guidelines, 4 the probation o fficer

calculated a base offense level of twenty-eight (the base offense

level for the underlying offense of possession). 5

Domino raised the same objection to the 1994 PSR that he had

to the 1990 PSR, arguing essentially that, as he never stipulated

to the more serious offense of possession in 1990, the correct base

offense level for the 1990 PSR was twelve , which produces a more

favorable sen tence than a sentence under the 1993 Sentencing

Guidelines. The district court rejected Domino's argument and

determined that the total offense level for Domino's conviction was

thirty. The court sentenced Domino to forty-eight months on each

count of Counts Two and Three to run consecutively for a maximum of6 United States v. Radziercz , 7 F.3d 1193, 1195 (5th Cir.

1993), cert.denied , 114 S.Ct. 1575 (1994); United States v. Leed

, 981 F.2d 202, 207 (5th Ci r.) (citing U nited States v. Shell

, 972

F.2d 548 (5th Cir. 1992)), cert. denied , 113 S.Ct. 2971 (1993).

7 Braxton v. United States , 500 U.S. 344, 350 (1991).

5 ninety-six months, with a term of supervised release of one year on

each count, to run concurrently. Domino filed a timely notice of

appeal.

II

ANALYSIS

A. S TANDARD OF R EVIEW

We review challenges to the district court's application and

legal interpretation of the Sentencing Guidelines de novo

. 6 We

review for clear error a district court's findings of fact as they

pertain to a defendant's sentence, but review de novo a district

court's determination of the meaning and effect of any factual

stipulations on a sentence. 7

B. S TIPULATION ? M ISCALCULATION ? E X P OST F ACTO V IOLATION ?

Domino asserts that his sentence, which was calculated

pursuant to the 1993 Sentencing Guidelines, viola tes the e x post

facto clause of the United States Constitution. He insists that

the 1989 Sentencing Guidelin es--the guidelines in effect on the

date of his offense of conviction--if calculated correctly, would

have resulted in a sentence more favorable to him, and therefore

should have been used for sentencing rather than the less favorable

1993 Sent encing Guidelines. Specifically, Domino contends that,

had the probation officer calculated correctly in the 1990 PSR a8 U.S.S.G. § 1B1.11 (1993).

9 United States v. Gonzales

, 988 F.2d 16, 18 (5th Cir.) (citing

Miller v. Florida

, 482 U.S. 423, 430 (1987)), cert. denied

, 114

S.Ct. 170 (1993).

1 0 United States v. Suarez

, 911 F.2d 1016, 1022 (5th Cir. 1990).

6 base offense level of twelve as directed by U.S.S.G. § 2D1.6--the

applicable guideline for a communication offense under 21 U.S.C. §

843(b)--rather than applying erroneously--pursuant to U.S.S.G. §

1B1.2(a)--the base offense level for the allegedly stipulated, more

serious offense of possession, his sentence und er the 1989

Sentencing Guidelines would have been more favorable than his

sentence under the 1993 version of the guidelines.

Section 1B1.1 1 of the Sentencing Guidelines instructs a

sentencing court to use the guidelines manual in effect on the date

that a defendant is s entenced, unless the court determines that

"use of the G uidelines Manual in effect on the date that the

defendant is sentenced would violate the ex post facto clause of

the United States Constitution," in which case the court should use

the version o f the guidelines in effect on the date that the

offense of convict i on was committed. 8 "A criminal law is ex post

facto if it is retrospective and disadvantages the offender by

altering substantial personal rights." 9 A sentence that is

increased pursuant to an amendment to t he guidelines effective

after the offense was committed violates the ex post facto clause. 10

If, as Domino asserts, the correct base offense level for his

sentence under the 1989 Sentencing Guidelines is twelve, then the

district court's application of the 1993 Sentencing Guidelines to11 U.S.S.G. § 1B1.2(a) (1993).

1 2 Id. The 1989 Sentencing Guidelines refer to a conviction by

"a plea of guilty or nolo contendere ," whereas the 1993 Guidelines

refer to a "plea agreement (written or made orally on the record)."

Similarly, the 1989 application notes interpret this provision as

applying when "a stipulation as part of a plea of gui lty or nolo

contendere specifically establishes.

. .," whereas the 1993 version

refers to "a stipulation that is set forth in a written plea

agreement or made between the parties on the record during a plea

proceeding specifically establishes . . ." See U.S.S.G. § 1B1.2,

commentary note 1 (1989) and (1993).

7 his sentence imposed in 1994, with its base offense level of

twenty-eight, violates the ex post facto clause.

The Sentencing Guidelin es direct a sentencing court to

calculate the appropriate base offense level for a sentence by

determining which section of the guidelines is most applicable to

the offense of conviction. 11 U.S.S.G. § 1B1.2(a) instructs,

however, that when a defendant is convicted on the basis of a

guilty plea containing a stipulation that specifically establishes

a more serious offense than the offense o f conviction, the

sentencing court must determine a nd apply the guideline most

applicable to the more serious offense. 12

Domino asserts that the probation officer who prepared his

1990 PSR erred in applying U.S.S.G. § 1B1.2(a) in that report after

concluding--incorrectly--that Domino's guilty plea contained a

stipulation that established the more serious offense of possession

under 21 U.S.C. § 841(d)(1). Domino argues that the facts

contained in the factual resume and amendment are the only factual

stipulations that he made, and insists that those facts stipulate

that he used a telephone to facilitate the possession of1 3 Domino does not dispute that § 1B1.2 is applicable in

circumstances when a more serious offense is stipulated under 21

U.S.C. § 841(d)(1). He merely asserts that in his case his guilty

plea did not contain a stipulation to the more serious offense.

1 4 C ounts Two and Three charge that Domino "intentionally and

knowingly did unlawfully use a communication facility, that is, a

telephone, in facilitating the possession of phenylacetic acid. .

. in that [Domino] used said telephone to discuss with a person

known to the grand jury, the sale and possession of phenylacetic

acid."

8 phenylacetic acid, but do not spe cifically establish that he

actually possessed phenylacetic acid. 13

The government does not attempt to argue that the plea

agreement or factual resume specifica lly establish facts showing

possession. Rather, after noting that Domino pleaded guilty to two

counts of a communication offense under 21 U.S.C. § 843(b), the

government argues that an essential element of that offense is that

the underlying drug offense was in fact committed. The foundation

of the government's argument, therefore, is that, "where guilt of

the offense of conviction depends on guilt of the underlying

offense, a U.S.S.G.§ 1B1.2(a) stipulation should be held to exist."

The government offers three bases on which it suppo rts its

assert ion that the district court was justified in ascertaining

that Domino's stipulated conduct constitut e d the more serious

offense of possessio n with intent to manufacture. First, the

government asserts that the language of the indictment states that

Domino intentionally and knowingly used the telephone to facilitate

the possession of the phenylacetic acid. 14 Second, the government

contends that the only reason that the amendment to the factual

resume was executed was to establish the quantity of phenylacetic1 5 The government suggests that, in light of the fact that in

1989 the base offense level for a § 843(b) communication violation

was 12, without any adjustment for quantity, the only reason for

stipulating the quantity of the listed chemical was for sentencing

under the stipulation provision of § 1B1.2. The government

contends that the fact that the amendment was executed shows that

the plea agreement did contemplate a stipulation to t he more

serious offense and that Domino knew that he was stipulating to the

more serious offense when he executed the amendment.

16 9 50 F.2d 222 (5th Cir. 1991), cert. denied

, 504 U.S. 9 2 6

(1992).

1 7 Id. at 224 (reviewing whether consecutive sentences under 21

U.S.C. § 841(d) and 21 U.S.C. § 843(b) violate rule against double

jeopardy).

18 21 U.S.C. § 843(b) (1984); Martinez , 950 F.2d at 224.

9 acid involved in order to determine the applicable guidel ine for

sentencing under the more serious offense. 15 Third, the Government

insists that Domino affirmed that he understood the nature of the

charges to which he pleaded guilty and that he understood that his

plea relieved the government of its burden of proving the crimes

against him.

C ontrary to the government's contention, a conviction for a

communication offense under 21 U.S.C. § 843(b) does not necessarily

import a more serious offense of possession under 21 U.S.C. §

841(d)(1). In U nited States v. Martinez

, 16 w e observed that a

conviction under 21 U.S.C. § 843(b) requires a different element of

proof than a conviction under 21 U.S.C. § 841(d)(1). 17 A conviction

under § 843(b) requires proof tha t a defendant knowingly and

intentional ly used a communications facility to facilitate the

commission of a drug offense, 18 whereas a conviction under § 841(d)

requires proof that a defendant knowingly and intentionally19 21 U.S.C. § 841(d)(1) (1995); Martinez , 950 F.2d at 224.

2 0 Martinez

, 950 F.2d at 224 (offering as an example, fact that

defendant could h ave been convicted under § 843(b) had he used a

tel ephone to facilitate other defendants' possession of chemical

without ever possessing chemical himself).

21 931 F.2d 1017 (5th Cir. 1991).

2 2 Id. at 1019 (quoting U nited States v. Martin

, 893 F.2d 73,

75 (5th Cir. 1990) (citations omitted)).

10 possessed a listed chemical with the intent to manufacture a

controlled substance. 19 "Thus not every violation of § 843(b)

constitutes a violation of § 841(d), and vice versa." 20 As a

conviction under 21 U.S.C. § 843(b) does not "depend" on a

conviction under 21 U.S.C. § 841(d), it does not follow that

Domino's guilty plea to a violation of § 843(b) necessarily

established a violation of the more serious offense under §

841(d)(1). Thus the question on appeal is whether Domino's guilty

plea contained a stipulation that specifically established the more

serious offense under 841(d)(1).

Recently, in United States v. Garcia

, 21 we reiterated our

standard for determining whether, as per U.S.S.G. § 1 B1.2, a

stipulation specifically establishes a mo re serious offense than

the offense of conviction.

[I]n deciding whether a stipulation specifically

establishes a more serious offense than the offense of

conv iction, the trial court must follow the directive

contained in Fed.R.Crim.P. 11(f) and satisfy itself that

a 'factual basis for each essential element of the crime

[has been] shown. The court must examine 'the relation

between the law and the acts the defendant ad mits' to

ascertain whether the stipulated conduct constitutes a

criminal offense. 22

In Garcia

, the two appellants and four codefendants were23 Id. at 1019-20.

11

charged in a two-count indictment with possession with in tent to

distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and

conspiracy to do the same in violation of 21 U.S.C. § 846. The

appellants each wa ived the indictment and pleaded guilty to a

superseding charge of use of a telephone in committing a felony in

violation of 21 U.S.C. § 843(b). The probation office prepared a

PSR, recommending sentences based on the base offense level for the

more serious offense of possession. The appellants objected,

arguing that their base offense level should have been calculated

at twelve by referenc e to U.S.S.G. § 2D1.6. The district court

overruled the appellants' objecti ons and imposed the recommended

maximum sentence. In vacating and remanding that sentence, we

concluded in relevant part that (1) the precise nature of the

appellants' involvement in the offense could not be determined from

the stipulated facts; (2) the sentencing court's reliance on facts

contained in the PSR was inappropriate because the factual basis

for each element of the greater offense must appear in the

stipulated facts as made on the record ; and (3) the appellants'

failure to object to the facts set forth in the PSR did not

"constitute a 'stipulation' to those facts, much less a stipulation

'on the record.'" 23

In light of Garcia

, for us to decide whether Domino's plea

agreement contains a stipulation specifically establishing the more

serious offense of possession under 21 U.S.C. § 841(d)(1), we must

determine whether the stipulated facts as made on the record--the2 4 Id. ; Martin

, 893 F.2d at 75. See a lso Braxton v. United

States

, 500 U.S. 344, 349 (1991) (observing that sentence based on more serious offense cannot stand unless defendant's agreement to

facts constitute a stipulation that specifica lly establishes the

elements of the offense).

25 See 21 U.S.C. § 841(d)(1) (1995).

2 6 See e.g.

, United States v. Sanchez

, 961 F.2d 1169, 1175 (5th

Cir.) (defining "possession"--either actual or constructive--as

d efendant's ownership, dominion, and control over item) (ci ting

United States v. Richardson

, 848 F.2d 509, 512 (5th Cir. 1988)),

cert. denied , 113 S.Ct. 330 (1992).

12 plea agreement, factual resume, and amendment--establish a factual

basis for each essential element of that offense. 24 Thus, the

agreement, resume, and amendment must specifically establish that

Domino (1) knowingly or intention ally (2) possessed a listed

chemical (3) with intent to manufacture a controlled substance. 25

Domino stipulated in the factual resume that he used a

telephone to call a DEA agent about purchasing phenylacetic acid

for the purpose of manufacturing a controlled substance. There is

nothing in this stipulation that specifically establishes that

Domino actually (or even constructively) obtained and possessed the

phenylacetic acid. 26 Similarly, Domino stipulated in the amendment

to the factual resume only that the phenylacetic acid referred to

in Counts Two and Three was in the amount of a 110 pound drum.

Again, nothing in this stipulation specific ally establishes the

essential elements of the more serious offense of possession with

intent to manufacture. We conclude, therefore, that the stipulated

facts as made on the record do not es tablish the more serious

offense of possession in violation of 21 U.S.C. § 841(d)(1).

III13 CONCLUSION

In the absence of any stipulated facts that specifically

e stablish that Domino p ossessed phenylacetic acid with intent to

manufacture a controlled substanc e in violation of 21 U.S.C.

§ 841(d)(1), it follows that the 1990 PSR, which contained a base

offense level calculated according to that offense was incorrect.

Consequently, the district court's finding that Domino's sentence

under the 1993 Sentencing Guidelines, which produced a base offense

level of twenty-eight, was more favorable to Domino t han his

sentence under the 1989 version of the guidelines, which if

calculated correctly would have a ssessed a base offense level of

twelve, was erroneous. Thus, as Domino's sentence under the 1993

Sentencing Guidelines violates the ex post facto clause, it must be

vacated and remanded to the district court for resentencing under

the 1989 version of the Sentencing Guidelines.

VACATED AND REMANDED.