United States v. Tanya Nastase ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 02-3414NE
_____________
United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court
* for the District of
* Nebraska.
Tanya M. Nastase, *
*
Appellant. *
___________
Submitted: April 15, 2003
Filed: May 27, 2003
___________
Before BYE, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
This case raises a single sentencing issue: did the District Court1 abuse its
discretion in deciding to count two prior convictions towards the defendant’s
criminal-history score rather than as part of her current-offense conduct. We
conclude that the District Court did not err and therefore affirm the defendant’s
sentence.
1
The Hon. Laurie Smith Camp, United States District Judge for the District of
Nebraska.
From January of 1999 until September 17, 2001, Tanya Nastase was engaged
in a conspiracy to distribute methamphetamine. Twice during this period, Ms.
Nastase was arrested and found guilty of possessing small quantities of marijuana, all
the while avoiding detection of her involvement in the methamphetamine conspiracy.
She was eventually arrested for the methamphetamine conspiracy, and she pleaded
guilty. The Pre-Sentencing Investigatory Report counted her two convictions for
possession of marijuana as past criminal conduct, which ultimately put Ms. Nastase
in Criminal History Category II. Ms. Nastase objected, arguing that these convictions
should not have been counted as past criminal conduct because they were part of her
current-offense conduct. The District Court rejected Ms. Nastase’s argument because
there was no evidence of a link between the marijuana and the methamphetamine
conspiracy. The Court then sentenced Ms. Nastase to the statutory minimum — 120
months in prison and 5 years of supervised release.
Ms. Nastase is before this Court challenging the District Court’s decision to
count the past convictions as prior conduct. We review the District Court’s
interpretation of the Sentencing Guidelines de novo, and its factual findings for clear
error. United States v. Weiland, 284 F.3d 878, 882 (8th Cir. 2002). We have held
that a former conviction is not part of the instant offense (and is therefore correctly
counted in the criminal-history score) if it is a “severable, distinct offense,” United
States v. Davidson, 195 F.3d 402, 409 (8th Cir. 1999), a determination made based
upon temporal and geographical proximity, a common scheme or plan, or common
victims. Weiland, 284 F.3d at 882.
In this case, the District Court found as a fact that Ms. Nastase had not proved
a connection between the two prior convictions and the methamphetamine
conspiracy. In light of Ms. Nastase’s failure to provide any evidence on the matter,
we can find no clear error in the District Court’s finding. Thus, Ms. Nastase can
succeed in this appeal only if we decide that marijuana possession is inherently part
of a methamphetamine conspiracy offense if the marijuana possession occurred
-2-
during the same time period. The defendant argues that we should conclude as much,
contending that individuals who use marijuana (and presumably other drugs as well)
will often distribute drugs to pay for their habit. That may be the case, but this alone
does not make the possession of marijuana part of the conspiracy to distribute
offense. Ms. Nastase was given the opportunity to prove that, in this case, her
possession of marijuana was tied to her involvement in the methamphetamine
conspiracy; she chose not to avail herself of this opportunity. We decline to adopt a
per se rule linking these offenses.
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-