* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUL 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DONNA BISHOP, a.k.a. Big Mama, Defendant-Appellant. No. 96-3370 (District of Kansas) (D.C. No. 95-CR-20086)

ORDER AND JUDGMENT *

Before LUCERO , McKAY, and MURPHY , Circuit Judges.

18 U.S.C. § 1956(a)(1), enacted as part of the Anti -Drug Abuse Act of 1986, prohibits, inter alia , financial transactions involving funds that are t he proceeds of “specified unlawful activity,” if such transactions are (1) intended to facilitate that activity or (2) conceal the nature of the proceeds. See 18 U.S.C. § 1956(a)(1)(A)(i) (prohibiting use of illegal proc eeds to support illegal activity) [hereinafter (A)(i)]; id. § 1956(a)(1)(B)(i) (prohibiting laundering of ille gal1 Section 1956(h) provides that “[a]ny person who con spires to commit any

offense defined in [§ 1956] shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.” 18 U.S.C. § 1956(h). -2- proceeds to conceal their true nature) [hereinafter(B)(i)]. Donna Bishop entered a guilty plea to count 11 of a superseding indictme nt which alleged Bishop conspired to violate both (A)(i) and (B)(i) in viol ation of 18 U.S.C. § 1956(h). 1 Relying on the language of the superseding indictme nt, Bishop’s plea to the entirety of count 11, and the plea colloquy, the di strict court concluded that it could sentence Bishop for either of the offenses se t out in count 11. Accordingly, the district court sentenced Bishop under (A)(i), the provision with the higher base offense level. See U.S.S.G. § 2S1.1(a). Bishop appeals, asserting th at the district court erred in relying on the superseding indictment and the factual basis for the plea colloquy, rather than conducting an ev identiary hearing, to determine which of the two provisions Bishop violated. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms

. This case grew out of a Drug Enforcement Agency inv estigation of drug trafficking activities between Kansas City and Oklahoma City. The investigation ultimately determined that the source of the drugs was a cocaine conspiracy headed by James Walton. Further investigation demo nstrated that Bishop, Walton’s mother, was laundering the proceeds of the drug conspiracy through her-3-

restaurant, Big Mama’s Grocery and Deli. An Intern al Revenue Service investigation into the financial aspects of Bishop’ s restaurant revealed that money from the conspiracy was funneled into the restaurant’s account and was then used to pay operating expenses of the conspiracy, includ ing apartment rent, cellular phone bills, and pager bills. The proceeds were al so used to buy vehicles for the co-conspirators and to legitimize their income. Bishop was eventually indicted in three counts of asixteen-count superseding indictment. Count 1 of the indictment charged Bishop with conspiring to distribute more than five kilograms o f cocaine and 500 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) , 846. Count 11 charged Bishop with conspiracy to launder drug proceeds in violation of (A)(i), (B)(i), and § 1956(h). Count 12 charged Bishop with laundering drug proceeds in violation of (B)(i). Bishop ultimately entered into a plea a greement whereby she agreed “to enter a plea of guilty to count 11 of the Indictmen t, which charges a violation of Title 18, United States Code, Section 1956(a)(1)(A) (i).” In exchange for Bishop’s plea to count 11, the United States agreedto recommend that Bishop be sentenced at the lowest end of the applicable Sente ncing Guideline range, recommend that Bishop receive a two-level reductionfor acceptance of responsibility, and to take no position with regardto Bishop’s role in the offense.-4-

Bishop pleaded guilty to Count 11 on July 23, 1996. During the plea hearing, the United States indicated that should th e case go to trial, it could adduce evidence that money from the conspiracy was funneled into Bishop’s restaurant, that Bishop laundered the proceeds thro ugh her business account in an effort to legitimize the proceeds, and that Bishop used the laundered funds to pay certain expenses of the conspiracy. Bishop and hercounsel agreed that the United States could produce such evidence. Furthermore, a lthough acknowledging that she had undertaken the acts alleged by the United S tates, Bishop indicated “[i]t was never my intentions to promote cocaine.” Following entry of the guilty plea to count 11, the United States Probation Office prepared a Presentence Report (“PSR”). The PSR indicated that a base offense level of twenty-three was appropriate becau se Bishop had pleaded guilty to conspiracy to violate (A)(i). See U.S.S.G. § 2S1.1(a) (establishing base offense level of 23 for violations of (A)(i) and base offen se level of 20 for violations of (B)(i)). Bishop objected to the PSR’s proposed bas e offense level. She asserted that the district court could not rely on the alleg ations in the indictment or her plea colloquy to determine the appropriate base off ense level. Instead, Bishop asserted that the district court must hold an evide ntiary hearing in which the United States must prove by substantial evidence th at she conspired to violate2 Bishop’s theory of the case is as follows. Count 1 1 charged that she had

conspired to launder drug money in violation of both (A)(i) and (B)(i). If she were to go to trial on Count 11, the jury could con vict if it found that she had conspired to violate either (A)(i) or (B)(i). In s uch a case, however, if the jury returns a general verdict of guilt, the district co urt is obligated to sentence the defendant on the basis of the conspiracy objective yielding the lowest offense level. See United States v. Pace , 981 F.2d 1123, 1128-30 (10th Cir. 1992). Bishop contends that her guilty plea is the equival ent of the general verdict of guilt in Pace , with the result that the district court is obligated to sentence her under the guideline for (B)(i) unless the United St ates can prove, at an evidentiary hearing, a violation of (A)(i). -5- (A)(i). Otherwise, according to Bishop, the distri ct court was obligated to calculate her base offense level based on a violati on of (B)(i). 2 After reviewing the parties’ memoranda on the issue , the district court overruled Bishop’s objection. The district court n oted that count 11 charged a conspiracy to violate both subsections of § 1956(a) (1) and that by pleading guilty to the count Bishop had admitted all facts necessary to sustain a final judgment of guilt and lawful sentence. The district court furt her recognized that at the plea hearing, Bishop admitted she had used the launderedproceeds to pay certain expenses of the conspiracy. Accordingly, the distr ict court concluded that a base offense level of twenty-three was appropriate to re flect a violation of (A)(i). The resolution of Bishop’s appeal is governed by th is court’s decision in United States v. Bush , 70 F.3d 557 (10th Cir. 1995). In Bush , the defendant pleaded guilty to an indictment charging him with c onspiring to distribute “cocaine (powder) and/or cocaine base (crack).” Id. at 559. When the district3 During oral argument, Bishop’s counsel indicated th at he was not

requesting that Bishop be allowed to withdraw her p lea.

4 Bishop’s contention that the district court must ho ld an evidentiary hearing to determine the scope of Bishop’s guilty plea is w ithout merit. The district court is entitled to rely on the indictment and plea coll oquy, as well as the rest of the record, in making this determination. See United States v. Bush , 70 F.3d 557, 561-63 (10th Cir. 1995). -6- court sentenced the defendant based on distributionof crack, the defendant appealed, claiming that because neither the indictm ent nor the plea colloquy established that distribution of crack, rather than powder cocaine, was the object of the conspiracy, the district court was obligated to sentence him on the objective yielding the lowest offense level. See id. at 560-61. This court agreed, holding: [W]e conclude if it is impossible to determine with a reasonable degree of certainty, either based on the indictment , the plea agreement, the petition for entry of a guilty plea, the colloquy at the change of plea hearing, the sentencing hearing, or some other part of the record, whether he intended to plead guilty to conspiring to distribute cocaine base, cocaine powder, or both, w e must order the sentence to be vacated and direct the district court to resentence the defendant on the basis of the objective yielding th e lowest offense level, or, if the government does not consent to re sentencing, we must allow the defendant to withdraw his guilty ple a and proceed to trial. Id. at 561 3 Accordingly, the question before this court is whether it is possible to determine “with a reasonable degree of certainty” t hat Bishop intended to plead guilty to conspiring to violate (A)(i). Based on t he plea agreement, the indictment, and the plea colloquy, 4 we answer that question in the affirmative.5 As noted above, the penalties for conspiracy to vio late (A)(i) or (B)(i) are

the same as the penalties for the consummated crime s. See supranote 1.

6 Bishop makes much of her statement during the plea colloquy that she did not intend to “promote cocaine.” According to Bish op, this statement must be interpreted as a refusal to plead guilty to conspir ing to violate (A)(i). In rejecting -7- Unlike the indictment in Bush which set out the objects of the conspiracy in the alternative with the term “and/or,” the indictment at issue here alleges that Bishop conspired to violate both (A)(i) and (B)(i). Furthermore, the indictment clearly lists overt acts which constitute violations of both (A)(i) and (B)(i). In addition, the plea agreement clearly establishes that the parties contemplated a plea of guilty to a conspiracy with the objective of violat ing (A)(i). Paragraph one of that agreement specifically provides as follows: “Defend ant, Donna Bishop[,] agrees to enter a plea of guilty to Count 11 of the Indict ment, which charges a violation of Title 18, United States Code, Section 1956(a)(1) (A)(i).” It is also worth noting that had the parties truly contemplated a plea embr acing a violation of (B)(i) only, the plea would have likely been to count 12 of the indictment, which alleged a violation of (B)(i), rather than to count 11, which alleged a conspiracy to violate both (A)(i) and (B)(i). 5 Finally, during the plea colloquy, Bishop unequiv ocally admitted the United States had evidence that the la undered proceeds were “used to pay operating expenses of the cocaine conspiracy , including apartment rent, cellular phone bills and pager bills” and admitted that she did, in fact, undertake those actions knowing they were against the law. 6this contention, the district court stated as follo ws: While at her plea colloquy, Ms. Bishop said . . . “ It was never my intentions to promote cocaine,” . . . that is no t a relevant inquiry here and has nothing to do with the analysis of all of this. By her plea and by her concession and admission by Counsel and personally that the Government had evidence that showed that . . . “the money then was used to pay operating expenses of the coca ine conspiracy, including apartment rent, cellular phone bills and pager bills,” . . . she admitted that she intended to promote the carry ing on of specified unlawful activity, here the conspiracy by her son and others, to distribute cocaine and crack cocaine. Whether she personally intended to promote cocaine or whether she personally finds cocaine repugnant is n ot the issue. She intended to promote the partnership in crime that J ames Walton and his associates had devised which itself was involve d in selling cocaine. That is what she admitted in her plea and that is what independent evidence, apart from her plea, the trut h of which she acknowledged at her plea hearing and which I’ve jus t quoted, established. This court agrees with the district court’s analysi s of the issue and concludes that Bishop’s statement that she did not intend to promo te cocaine does not cast doubt on the conclusion that Bishop intended to plead gui lty to conspiring to violate (A)(i). -8- The record as a whole, and the indictment, plea agr eement, and plea colloquy in particular, demonstrate that it is reas onably certain that Bishop intended to plead guilty to conspiring to violate ( A)(i). Accordingly, the judgment and sentence of the United States DistrictCourt for the District of Kansas is hereby AFFIRMED

. ENTERED FOR THE COURT:-9- Michael R. Murphy Circuit Judge