USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1391
UNITED STATES,
Appellee,
v.
GEORGE CALVIN BEASLEY,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________
Jeffrey A. Lipow with
_________________
for appellant.

whom Lipow, Barton & Harris

_______________________

was on br

Jeffrey A. Locke, Assistant United States Attorney, with whom

________________
John Pappalardo, United States Attorney, was on brief for appellee.
_______________
____________________
December 21, 1993
____________________

BREYER, Chief Judge.

____________
conviction for possessing
it, 21

U.S.C.

lawfulness

of

the

the

related twenty-two year

Sentencing

which increases

term for offenders with two previous

authorizing

to distribute

His most important argument

offender" provision,

convictions.

Beasley appeals his

heroin with intent

841(a)(1), and his

prison sentence.
the

George

U.S.S.G.

4B1.1.

focuses upon

Guidelines'

"career

the guideline

prison

"controlled substance"

In his

sentencing statute, 28 U.S.C.

view, the relevant

994(h), permits

"career offender" guideline to take account of previous

federal drug convictions, but not of convictions under state

_______
drug laws.

Like the two other circuits that have considered

this argument, we
F.2d 993 (9th

reject it.

United States
_____________

Cir. 1993); United States v.

_____________

v. Rivera, 996
______
Whyte, 892 F.2d
_____

1170 (3d Cir. 1989), cert. denied, 494 U.S. 1070 (1990); see
____________
___
also United States
____ _____________
1993) (per
___
arguments

curiam).
______

v. Dyer, No. 93-1045 (1st

____
And,

unconvincing,

because we find
we

affirm

the

Cir. June 18,

Beasley's other

district

court's

judgment.
I
Background
__________
On January 25, 1991, a customs inspector at Newark
Airport noticed what turned out
-22

to be heroin leaking from a

puncture hole in a suitcase.

of

the suitcase, Habib Makdessi, who, eventually, agreed to

help agents apprehend

to

smuggle

heroin

Agents flew
checked
he

She stopped the apparent owner

others involved in an
from Beirut

with Makdessi and

into a hotel, where,

would receive

to,

and

elaborate plot
through, Boston.

the suitcase

to Boston

Makdessi had told the agents,

further instructions.

After about

week, during which Makdessi had various phone

related

to delivery of

and

one

conversations

the suitcase, Makdessi

received an

authoritative call, which agents monitored, telling him that

he should

give the heroin-filled

would come to

suitcase to a

person who

Makdessi's room, identify himself

as "Paul,"

say that "Ahmed sent me," and give Makdessi $20,000.

that

During

conversation, Beasley knocked on the door, entered the

apartment, told

Makdessi that "Ahman

sent me,"

himself as "Paul," and gave Makdessi $20,000.

Beasley the
"a lot"

identified

Makdessi gave

suitcase, and he told Beasley that it contained

of heroin.

been punctured

Makdessi added

and was leaking

shower cap filled with some

Beasley

lifted the

agents,

who had

that the

heroin.

suitcase had

He gave

Beasley a

of the heroin that had spilled.

suitcase

monitored the

-33

and

shook

drug

it.

Government

delivery with

hidden

cameras and

audio recorders,

arrested Beasley

as he

left

with the suitcase.

After Beasley's

conviction, the

turned to the

Guidelines.

(with intent

to distribute)

heroin,

that

Beasley

It found

had

that Beasley possessed

just over
one

sentencing court

three kilograms

previous

conviction

of
for

violating a federal drug law (for possessing, with intent to

distribute, about

25 grams of heroin), and that Beasley had

one previous conviction for violating a

selling about
amount of

one-half gram

the drug and

produce a Guideline
imprisonment
III).
Beasley's

of heroin).

sentencing range of

U.S.S.G.

felony

the

convictions would
188 to 235

34, Criminal

2D1.1(c)(5),
prior

Ordinarily,

two prior felony

(Offense Level

"two

state drug law (for

months

History Category

4A1.1.

convictions"

But,
were

because
for

"a

controlled substance offense," the court instead applied the

special

"career offender" guideline.

appendix for the

full text).

U.S.S.G.

That guideline

4B1.1 (see
applies to an

offender who meets its

for

present

"controlled

purposes,

"career offender" definition, which,

includes a

person

substance offense" who

prior felony

convictions of

. .

convicted

also "has at
. a

of a

least two

controlled substance

offense," which latter term

-44

means

an

offense

under a

federal

or
__
manufacture,

state law prohibiting the

_____
import,
export,
distribution,
or
dispensing of a controlled substance . .
. or the possession of a controlled
substance
. .
.
with intent
to
manufacture, import, export, distribute,
or dispense.
U.S.S.G.

4B1.2(2) (emphasis added).

The special "career offender" guideline contains a

table with offense levels geared to the maximum sentence

the statute

of conviction.

It says that the

in

table "shall

apply" to a "career offender" if the table level is "greater

than the offense

level otherwise applicable."

The "career

offender" guideline also specifies that a "career offender's

criminal

history category in

every case shall

be Category

VI."
At the sentencing hearing, the parties agreed that
the drug statute
forty

subjected Beasley to a

years imprisonment.

And,

the

maximum penalty of
offense level

table

provides an offense level of

34 for a career offender, who,

like Beasley, was subject to

a maximum penalty of "25 years

or more"

(but less than

conviction guideline
over

of

"career

34,

U.S.S.G.

offender"

Because the

(applicable to

three kilograms of

level

life).

ordinary drug

an offender with

heroin) also specifies

2D1.1(c)(5),

guideline

made

no

the

just

an offense

table in

difference.

the
The

-55

requirement
category"

that
must

a
be

"career
"Category

offender's
VI,"

criminal

however,

did

history
make

difference, for it increased

Beasley's guideline sentencing

range, from one of 188 to 235

months, thereby

months, to one of 262 to

authorizing the

22-year sentence

327

that the

district court imposed.

Beasley,
conviction

as

and his

we

have

said,

sentence.

(We

appeals

both

his

note, parenthetically,

that the drug statute, in fact, seems to subject an offender

such as Beasley to a
forty

years.

of the

maximum term of life imprisonment, not

See 21 U.S.C.
___

841(b)(1)(B).

government's sentencing

court, we
consider

assume no
the

error in

sentencing

But, in light

concession in
the

aspect

point.
of

the

the district
And, we

appeal

on

shall
that

assumption.)
II
The
Career Offender
Guideline's
Prior Drug
Offense
____________________________________________________________
Definition
__________
Beasley's

most important

argument concedes

that

the

district court correctly applied the guidelines as they

are

written.

Commission

He

claims,

lacked

conviction for a

the

however,

legal

power

that

the

to

define

"controlled substance offense"

-66

Sentencing
a

prior

to include

state,
_____
the

as well as federal, convictions.

Commission itself indicated

offender"

guideline

particular statutory
See U.S.S.G.
___

to

Beasley notes that

that it meant

reflect

the

its "career

requirements

provision, namely 28 U.S.C.

4B1.1 Background statement

the "career offender" guideline meets

of

994(h).

(explaining that

994(h)'s requirement

that the guidelines "specify" for certain "career offenders"

a "sentence . . . at or near the maximum term authorized" by
statute).

He

guideline on
Commission
it.

urges

us

to judge

the basis of

SEC v.
___

lawfulness of

the legal ground upon

explicitly (and

Cf.
__

the

which the

apparently exclusively)

Chenery Corp., 318

______________

U.S. 80,

the

rested

87

(1943)

(reviewing agency action on the basis of the agency's actual

rationale).

And, he says,

consistent with

the statute's

the Commission's decision

language is

not

to include state

"controlled substance" convictions.

That statutory
should be treated
things, he

as a

language

says

"career offender"

has "previously

that

an

offender

if, among

been convicted of

two or

other
more

prior felonies, each of which is"

(A) a crime of violence; or
(B) an offense described in section 401
of the Controlled Substances Act (21
U.S.C. 841), sections 1002(a), 1005, and
1009 of the Controlled Substances Import
-77

and Export Act (21 U.S.C. 952(a), 955

and 959), and section 1 of the Act of
September 15, 1980 (21 U.S.C. 955a).
28

U.S.C.

994(h)(2).

Part

defining

prior drug

specific

federal statutes.

means

that

convictions

Part (B)

(B)

convictions,

of

under state

of

unlike

That fact, in
the definition

statutes.

And,

this definition,
part (A),

Beasley's view,
does
he

not include
___
says,

exclusion makes sense, for state drug convictions,

with

federal

drug convictions,

typically

lists

that

compared

involve smaller

amounts of drugs.
We,

like

the

other

two

circuits

that

have

considered this question, do

for three

basic reasons.

Part (B),

unlike Part (A),

statutes,

if one

such

does refer to

specific federal

words literally,

it

includes, convictions under

________

federal

statutes.

Those

statutes

commonly called "drug trafficking."

activities

as

the

making,

does not
state law.

an intent to engage in these

describe

They refer to

importing,

distributing, or dispensing, of drugs, and

with

language of

refers to "an offense described in" the particular

____________

specified
behavior

First, although the

reads its

exclude, but rather

Part (B)

not accept Beasley's argument,

exporting,

possessing drugs

activities.

They do not

refer to simple possession of drugs (except when entering or

-88

leaving
would

the country).
include

literal

conviction

reading of

under

state

the statute
law

that

criminalizes some,

or all,

such a state law would

of these

same activities,

for

create "an offense described in" the

____________

federal statute.
Second,
statutory

examination

provision

described.

supports

purpose

literal

violent offenders

of

the

reading

just

the provision's

that "substantial prison terms

S. Rep. No. 225, 98th

in 1984
__

the

the

Congress wrote that

was to ensure
on repeat

of

objective

[are] imposed

and repeat drug

traffickers."

Cong., 2d Sess. 175 (1984), reprinted

_________

U.S.C.C.A.N. 3182, 3358.

Beasley's interpretation

would frustrate this objective, for, on that interpretation,

the

statute would not

require a "substantial

for

trafficker"

"repeat

drug

apprehended

authorities and punished

under state, rather

law.

nothing

We

have

found

prison term"

in

the

by

state

than federal,

history

of

the

legislation, nor in its language, that explains why Congress

would want to insist (as
term"

for an offender

it did) upon a "substantial prison

who repeats earlier

violent conduct
_______________

(irrespective of jurisdiction) but not want to insist upon a

similar

"substantial

prison

term"

for

an

offender

similarly repeats earlier drug trafficking conduct.

-99

who

Third,

Beasley's

significant anomaly
objective of
treatment.

in

which is

interpretation would
guideline

to create

See Mistretta v.
___ _________

365-66 (1989);

28 U.S.C.

"avoid[] unwarranted

the basis

criminal

considered
(e.g.,

in light

deterrence,

rehabilitation,
among them
punish

of

among defendants

different

similar

behavior, or

often makes

basic

sense,

purposes of

deserts,"

see 18 U.S.C.
___

on the basis

or

To distinguish

of which jurisdiction
__________________

circumstance) close

when

punishment

incapacitation,

3553(a)).

the past criminal behavior

some special
U.S.S.G.

"just

U.S. 361,

uniformity, to distinguish

backgrounds,
of the

primary

sentencing

been found guilty of

among

(guidelines should

sentence disparities

In seeking

different

uniformity of

991(b)(1)(B)

criminal conduct").
on

the

United States, 488

_____________

with similar records who have

offenders

system,

create

happened to

seems (in the absence of

to

irrational.

Compare
_______

4A1.1 Background statement (prior convictions for

criminal history purposes "may

represent convictions in the

federal

system,

Columbia,

fifty

state

territories, and

systems,

foreign,

the

District

tribal, and

of

military

courts").
Beasley argues,
trafficking

to the contrary,

convictions often

involve

that state drug

smaller amounts

of

-1010

drugs.
in

We do not know the extent to which that is so.

any event,

punishments

Congress does

to the

amount of

predicate convictions.
_________
U.S.C.

841(b).

an effort to
crazy-quilt of

And,

not

normally key

drugs

See, e.g.,
___ ____

recidivism
__________

involved in
28 U.S.C.

But,

earlier,
994(h); 21

to read this statute as representing

do so seems
punishment

at least as

likely to produce

results, as

to connect

similar

punishments rationally to similar past behavior.

Beasley's strongest argument is

that Congress, in

other

statutes, has written the term "state law" explicitly

when it has

wanted to include convictions

See, e.g., 28 U.S.C.

___ ____
924(e).

In fact,

994(i); 21 U.S.C.
until

under state law.

841(b); 18 U.S.C.

Congress amended

21 U.S.C.

841(b) specifically to allow sentence enhancements

prior

state law drug convictions,

based on

courts had held that the

statute did not apply to those state drug convictions.

e.g.,
____
Cir.

United States
_____________
1986),

v. Gates, 807
_____

cert. denied, 481

_____________

States v. Johnson, 506 F.2d

______
_______

earlier version

"described
841(b)(1)(A)

of

in" language

U.S.

1006

1082 (D.C.

(1987); United
______

305, 307 (7th Cir. 1974), cert.

_____

denied, 420 U.S. 1005 (1975).

______
the

F.2d 1075,

See,
___

However, the language used in

841(b)

of

is different

994(h).

See
___

(referring to "prior convictions .

-1111

from

the

21 U.S.C.
. . for an

offense punishable under

United

States

amendment)).

. . . any

relating

to

. . . other

narcotic

drugs"

(before

Furthermore, the legislative history of former

841(b)(1)(A),

unlike the legislative history

clear that

Congress intended that enhancement

apply only

to a prior

F.2d at

law of the

1082.

federal conviction.
_______

Congress

can

embody a

here, makes
provision to

See
___

similar

Gates, 807
_____
scope-of-

coverage intent in different ways in different statutes.

The

upshot is that the statute's purpose, and the

purpose of

the sentencing laws

part, both

support the

statute.

Commission's interpretation

The language of the statute, when read

favors that same

contrary

of which that statute

conclusion.

plausible,

but

therefore conclude that

We find the

ultimately

that is, to include

for

offenses

not

sort

literally,

convincing.

defined in

the

We

authorizes

offender" as it has

those with prior state law

of the

of the

arguments to the

the statutory provision

the Commission to define "career

is a

done,

convictions

listed federal

statutes.
III
Other Arguments
_______________
1.
under the

The Amount of Heroin.

_____________________

belief

that

the

Beasley

applicable

was sentenced

offense

statutory

-1212

maximum

was 40 years,

guideline,
the

offense level 34

court applied the

provision

and thus, under

it

used,

violation involved

applied.

the career offender

Beasley

argues that

wrong statutory maximum

because the

841(b)(1)(B),
100 grams

applies

or more of

only

heroin.

if the
And, he

says that the

evidence did not support the district court's

finding

he

that

Rather, he

knew

about the

says that the

about 5 grams of heroin.

kilograms

evidence shows that he

However,

of heroin.
only knew

even if it were relevant

________

for sentencing purposes that

Beasley believed the

contained only five grams of

heroin, the same offense level

would apply.

841(b)(1)(C) (30 years maximum

See 21 U.S.C.
___

suitcase

sentence if repeat offender and violation involved less than

100

grams of heroin); U.S.S.G.

4B1.1(b) (specifying level

34 if statutory maximum for offense exceeds 25 years).

Regardless, the evidence

to

support

the

was more than sufficient

district court's

factual

conclusion that

Beasley knew the suitcase contained about three kilograms of

heroin.

The

complex nature

delivery precautions, the

of

the crime,

suitcase that

the elaborate

in fact

contained

more than three kilograms of heroin, the fact that

Makdessi

told him

the fact

the suitcase contained

that heroin

had leaked

a lot of heroin,

out and was

contained in

a shower

-1313

cap, and his having lifted and shaken the suitcase, together
provide
actually

more than
knew

kilogram.

the

support for

transaction

The only contrary

he paid only

Yet, nothing
was meant

Thus, this fact

finding that

involved

more

than

he
one

evidence lies in the fact that

$20,000, far less than the

one kilogram.
$20,000 sum

enough

wholesale value of

in the record suggests that the

to be more

does not lead us to

than a

partial payment.

a contrary conclusion.

Because

the record supports

(and because any

other mental
States
______

states and

(holding that, in
for

actual knowledge

error was harmless), we need

v. Ekwunoh,
_______

sentenced

a finding of

other circumstances.

813 F. Supp.

168, 179

some circumstances,

possessing

not consider

more

Cf.
___

United
______

(E.D.N.Y. 1993)

defendant cannot

drugs

than he

be

reasonably

believed he possessed).
2.

Ineffective Assistance of Counsel.

___________________________________

Beasley

says that his counsel was "ineffective" in failing to attack

the

"chain of

custody"

receipts

for

the

heroin,

which

attack, in his view, represented his only hope of acquittal.

The record

before us

provides no

"ineffective assistance" claim.

what

seems to

court, as a

be strong

basis for

The government

evidence of

general matter, praised

-1414

accepting his

custody.

introduced
The trial

counsel's performance.

We

do

not

normally

consider

claims

of

"ineffective

assistance" on direct appeal, for

such claims may require a

court

record, for

to go

outside

the

consider counsel's trial

No. 91-2229, slip
see no reason

trial
strategy.

example,

United States
_____________

v. Mala,
____

op. at 9-10 (1st Cir. Oct. 27, 1993).

for making an exception to that

to

We

rule in this

case.
3.

Waiver of Counsel.
_________________

the trial court

proceed on
the dangers

In mid-trial Beasley asked

to permit him to discharge

his own.

his counsel and

The trial judge warned

of doing so.

But, when Beasley

Beasley about
persisted, he

granted Beasley's request, having asked counsel to remain to

advise Beasley
"totality

if necessary.

Beasley now argues

of the circumstances"

establish that Beasley did

not "knowingly and intelligently" waive his Sixth

right to counsel.

cert. denied,
_____________

466

Hafen, 726 F.2d 21, 24-26 (1st

_____
U.S.

962

(1984);

Meachum, 545 F.2d 273, 277-79 (1st Cir. 1976).

_______
the record does not make
aware

of

the

Amendment

See Farretta v. California, 422 U.S. 806,

___ ________
__________

835 (1975); United States v.

_____________
Cir.),

that the

dangers

Maynard
_______

v.

He says that

it sufficiently clear that he "was

and

disadvantages

of

self

representation, the technical requirements of trial, and the

-1515

potential

penalties he

was

facing."

Appellant's Opening

Brief at 29; see Maynard, 545 F.2d at 279.

___ _______
Having reviewed the
Beasley's conclusions.

record, we do not

agree with

The district court clearly explained

the disadvantages of his choice and the technical

the trial.

The

witnesses,
need

the presentation of

to review

understand

jury

the

Moreover,

of

magnitude

-- suggest
trials

Similarly, the fact

five-year sentence
with the

notice of

detail the

and

of
record

all

what
--

he
his

some familiarity
their

to

help

proposed
two

with the

potential

violating the

enhanced sentence

and the
Beasley
to

prior

do.
drug

serious

technicality.

that Beasley had previously

for

calling of

closing arguments,

instructions,

Beasley's past

convictions
nature

judge discussed in

nature of

received a

same statute,
that the

along

government

sent

to

Beasley

and

the

government told Beasley

all

indicate

penalties

Beasley

was

facing.

erroneously thought
unless he
basis

for

hearing

he faced a possible

that

he

detention

was

aware

Beasley

he would

not be

district

court's

the

life sentence,

of

the

now

says

permitted to

dismissed his lawyer, but the

the

where

potential
that

he

testify

record provides no

having

believed Beasley

-1616

entertained that

thought nor

any objective

basis for

his

having done so.

Despite the

court's explanation

of self-representation and the

of disadvantages

technicalities of the trial,

Beasley insisted, quite clearly, that he wanted to represent

himself.
to

do so

The trial court, therefore, properly permitted him

and wisely asked

his counsel

to stay

and offer

advice if necessary.
4.

We find no error.

Reasonable Doubt.
________________

required the district

doubt" in its
the type
States
______

court to define the

jury instructions.

The

v. Olmstead,
________

not

832 F.2d

642 (1st

U.S. 1009 (1988).

require

United States
_____________

v.

further,

Campbell, 874
________

We

term "reasonable

court, however, gave

of instruction that this court

denied, 486
______
does

Beasley argues that the law

approved in United
______
Cir. 1987),

have held that

more
F.2d

cert.
_____
the law

detailed explanation.
838, 843

(1st

Cir.

1989); Olmstead, 832 F.2d at 646.

________
For these

reasons, the

court is
Affirmed.
_________

-1717

judgment of

the district

Note:

See slip opinion for copy of Appendix.

-1818