     Case: 11-11200     Document: 00511981854         Page: 1     Date Filed: 09/11/2012

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 11, 2012
                                     No. 11-11200
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BRIAN KOLEHMAINEN,

                                                  Defendant-Appellant

                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-102-1

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
        Brian Kolehmainen appeals the 96-month within-guidelines sentence
imposed in connection with his guilty-plea conviction for illegally possessing a
machinegun. Kolehmainen argues that the district court erred by denying a
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Kolehmainen
contends that the district court denied a reduction for acceptance of
responsibility because he could not recall the conversations with the undercover
officer wherein he talked about obtaining more machineguns to be sold for

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-11200    Document: 00511981854     Page: 2   Date Filed: 09/11/2012

                                  No. 11-11200

transportation to Mexico. He further argues that these conversations were not
relevant conduct because they occurred after the offense of conviction.
Therefore, he asserts that the court erred in denying the reduction based on the
finding that he falsely denied relevant conduct.
      A defendant may receive a reduction in offense level pursuant to U.S.S.G.
§ 3E1.1 if he “clearly demonstrates acceptance of responsibility for his offense.”
§ 3E1.1(a). The defendant bears the burden of demonstrating that the reduction
is warranted. United States v. Watson, 988 F.2d 544, 551 (5th Cir. 1993). “While
the district court’s findings under the sentencing guidelines are generally
reviewed for clear error, a determination whether a defendant is entitled to an
adjustment for acceptance of responsibility is reviewed with even greater
deference.” United States v. Buchanan, 485 F.3d 274, 287 (5th Cir. 2007). “We
will affirm a sentencing court’s decision not to award a reduction” pursuant to
§ 3E1.1 unless the decision is “without foundation.” United States v.
Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (internal quotation marks and
citation omitted).
      In the factual resume, Kolehmainen admitted that, at the time of the
offense, he instructed the undercover officer to contact Kolehmainen’s accomplice
if he wished to acquire more guns. During his interview with the probation
officer, Kolehmainen denied that he intended to conduct future transactions with
the officer. In light of his statements to the probation officer denying this
conduct and given the deference owed to a district court’s findings on acceptance
of responsibility, Kolehmainen has not shown that the district court’s denial of
a reduction for acceptance of responsibility is without foundation. See Juarez-
Duarte, 513 F.3d at 211.
      Accordingly, the judgment of the district court is AFFIRMED.

                                        2


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

YITSCHAK EBERT, a/k/a Isaac, d/b/a
                                                                     No. 99-4877
M&I Distributors, Incorporated,
a/k/a Isaac Ebert, a/k/a Issac Ebert,
a/k/a Yitzchok Ebert,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-95-84-BR)

Submitted: August 2, 2000

Decided: September 21, 2000

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

David I. Schoen, Montgomery, Alabama, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, John Stuart Bruce, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Yitschak Ebert was convicted of one count of conspiracy to com-
mit money laundering and to receive stolen property, and several sub-
stantive counts. On appeal, we affirmed the conspiracy conviction but
vacated the substantive convictions on venue grounds. We remanded
for dismissal of the vacated charges and resentencing on the conspir-
acy conviction. United States v. Ebert, No. 96-4871 (4th Cir. May 3,
1999) (unpublished). The district court resentenced Ebert to fifty-two
months imprisonment followed by three years supervised release.
Ebert appeals.

On appeal, Ebert asserts that the district court did not comply with
Fed. R. Crim. P. 32. We review a district court's application of Rule
32 to ensure it is not clearly erroneous. United States v. Souther, ___
F.3d ___, No. 99-4582 (4th Cir. July 18, 2000). Having reviewed the
record on resentencing, we find no such error.

Ebert also asserts that the district court erred in using U.S. Sentenc-
ing Guideline § 2S1.1 (1998), governing money laundering, rather
than U.S.S.G. § 2B1.1 (1998), regarding receipt of stolen property, to
determine the offense level for his sentence. Having considered all of
Ebert's arguments on this issue, we conclude that, to the extent this
issue is not foreclosed by the mandate rule, United States v. Bell, 5
F.3d 64, 66 (4th Cir. 1993), the district court correctly followed the
guidelines in determining Ebert's offense level. In addition, that the
district court departed downward from the guidelines range in a code-
fendant's sentence is irrelevant to Ebert's sentence, see United States
v. Hall, 977 F.2d 861, 864 (4th Cir. 1992), and the district court used
an appropriate dollar amount in computing the sentence. Therefore,
these claims lack merit.

We reject Ebert's claim that the jury's calculation of the amount
forfeited should have been recalculated. Section 982(a)(l) (West

                    2
2000) authorizes forfeiture of property involved in an offense in vio-
lation of 18 U.S.C.A. § 1956 (West Supp. 2000). Section 1956(h) pro-
vides that conspiracy to commit money laundering offenses is subject
to the same penalties as the substantive offense. The jury's forfeiture
verdict specified both the money laundering conspiracy charge and
the substantive counts of money laundering. Therefore, when the sub-
stantive counts were vacated, the forfeiture verdict remained valid.

Ebert's final claim, that the case should be remanded for a hearing
on his motion for disclosure of evidence, also lacks merit. Nothing in
the record suggests that Kazinec supplied inaccurate information
about Ebert to the Government. The district court did not abuse its
discretion in denying the motion.

We affirm the sentence imposed by the district court on remand.
We deny Ebert's motion for oral argument. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

                    3


576 S.W.2d 926 (1979)
LAKEWAY COMPANY, Appellant,
v.
Alfonso D. BRAVO Del Villar et al., Appellees.
No. 1243.
Court of Civil Appeals of Texas, Tyler.
February 1, 1979.
Rehearing Denied February 22, 1979.
*927 Mike Willatt, Fisher & Willatt, Austin, for appellant.
Walter Demond, Barry Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellees.
SUMMERS, Chief Justice.
This appeal is from a summary judgment granted in favor of appellees.
Appellees, Sr. and Sra. Bravo, citizens of Mexico, brought suit against appellant, Lakeway Company, for specific performance of a contract for sale of land, that is for delivery of a deed to the property in question, and Lakeway Company counterclaimed for $8,188.45, the balance which it alleged was due as purchase money under the contract.
Both appellees and appellant filed their respective motions for summary judgment. The trial court granted the appellees' motion for summary judgment and denied the appellant's motion, from which action appellant has appealed. We affirm.
By a written contract (drawn by Lakeway and executed in both Spanish and English versions) dated July 31, 1976, the Bravos contracted to buy and Lakeway Company agreed to sell a certain Lakeway lot located in Travis County, Texas. The contract stipulated the total purchase price in the following manner "US$25,820.00 (MEX$322,750.00)." The down payment was described to be "US$5,000.00 (MEX$62,500.00)." At the time the contract was signed, the Bravos paid, by check, the down payment of 62,500 Mexican pesos which was equivalent to $5,000.00 (U.S.). This down payment in pesos was accepted by Lakeway.
On August 18, 1976 (which was a Saturday), Lakeway received Mr. Bravo's check drawn on Banco National de Mexico payable to Lakeway Company in the amount of 260,250 pesos, at that time the equivalent of U.S. $20,820.00. This was for the second and final payment under the contract. Lakeway deposited the check at its Austin bank on Monday, August 20, 1976, and the check was honored and cleared the Banco National de Mexico on August 30, 1976. On August 31, 1976, the Mexican government devaluated the peso. Because of the devaluation, the exchange of pesos for U.S. dollars yielded only $12,631.55, $8,188.45 less than the original U.S. dollar amount for the second payment. Lakeway retained both the down payment and second payment but refused to convey title to the property in question, claiming that the Bravos had not made full payment.
*928 Appellant has predicated its appeal upon two points of error which contend that the trial court erred (1) in granting summary judgment in favor of appellees, and (2) in refusing to grant summary judgment in favor of appellant.
The contract provided that it is to be interpreted in accordance with the laws of Texas and the United States of America, and the provisions pertinent to this appeal provide that:
"1. Seller [appellant] agrees to sell and Buyers [appellees] agree to buy for a total purchase price of US$25,820.00 (MEX$322,750.00) the following described property in Lakeway Section 18, as recorded in Plat Book 3, Page 385 of Travis County clerk records, Lot Number 2060.
"2. Buyers have paid US$5,000.00 (MEX$62,500.00) as a down payment and agree to pay to the seller, at 1200 Lakeway, Austin, Texas 78746, U.S.A. the balance within ... (15) days of the date of this contract. Seller agrees to notify Buyers in writing of the total amount due in Mexican pesos if a change in the official exchange rate occurs prior to such payment.
"3. When the total purchase price is paid, Seller agrees to convey said property to Buyers by a general warranty deed, subject to all subdivision restrictions and covenants and easements of record (including those recorded in the deed records of Travis County, Texas for the section in which this homesite is located). Also, Seller agrees to furnish Buyers with a policy of title guaranty insurance covering said property."
Appellant contends that the intention of the parties, as set forth in the contract, was for a total purchase price of $25,820.00; that how that was paid, whether in dollars or pesos, was immaterial so long as the result to seller was the required number of dollars; and that the peso figure in parenthesis was simply for the convenience of the buyer to let him know how many pesos would be required to buy the property. It urges that this intention is supported by the fact that the contract provides that "Seller agrees to notify Buyers in writing of the total amount due in Mexican pesos if a change in the official exchange rate occurs prior to such payment." We agree with these contentions.
In its conclusion, however, appellant takes the position that when the Bravos delivered the check on August 18, 1976, that Lakeway accepted the check not only on the condition that it be honored but also on the condition that it produce the required number of dollars. We disagree. As pointed out by appellees, the amount of dollars for the purchase price was absolute, but the amount of pesos could vary if seller gave written notice to buyers of a change in the official exchange rate prior to payment (pursuant to paragraph 2 of the contract). Appellees further respond that the mode of payment could be in dollars or pesos; that the down payment was in pesos with no objection from Lakeway; that on August 18, 1978, the Bravos delivered to Lakeway their check drawn upon their Mexican bank payable to Lakeway Company in the amount of 260,250 pesos; that there had been no change in the exchange rate and that such amount was the correct amount due for the final payment under the contract; that such check was received by Lakeway without objection; that when one takes a check, the check is accepted with one condition, and one condition only, that is that the check be honored for payment; and that once the check is honored and paid in due course the payment relates back and becomes absolute as of the date of the delivery of the check to payee. We agree.
In the instant case a check payable in the correct amount of pesos for final payment under the contract was delivered to Lakeway by the Bravos on August 18, 1976; such check was received by Lakeway without objection; said check was honored and cleared appellees' bank account on August 30, 1976, prior to the devaluation of the peso which occurred on August 31, 1976; and when honored and paid in due course, the payment became absolute and related back to the date of delivery of the check on August 18, 1976; and as of said date of *929 delivery it produced the specified value in dollars and satisfied the terms of the contract.
When a check is accepted as conditional payment and is paid in due course, it is generally held that the payment thereon becomes absolute and relates to the date of delivery of the check. Muldrow v. Texas Frozen Foods, Inc., 157 Tex. 39, 299 S.W.2d 275, 277 (1957); Texas Mutual Life Ins. Ass'n v. Tolbert, 134 Tex. 419, 136 S.W.2d 584, 590 (1940); Texas Business and Commerce Code, sec. 3.802(a)(2), V.T.C.A.; 70 C.J.S. Payment § 24, p. 235; 60 Am.Jur.2d, Payment, sec. 11, p. 618.
We further disagree that any problem was caused by the late payment on August 18, 1976, instead of on August 15, 1976. There was no change in the exchange rate and there is no pleadings or evidence showing any loss by reason of the late payment.
In light of what we have held above we do not believe that the cases cited in appellant's brief regarding optional payments or the case of Guaranty Trust Co. of New York v. Henwood, 307 U.S. 247, 59 S.Ct. 847, 83 L.Ed. 1266 (1939), are applicable to the case at hand.
The judgment of the trial court is affirmed.


                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1732
                              Filed March 22, 2017

IN RE THE DETENTION OF
DAVID L. TAFT JR.

DAVID L. TAFT JR.
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Lars G. Anderson,

Judge.

      Respondent, who was civilly committed as a sexually violent predator,

appeals a jury’s verdict finding he was not suitable for discharge or placement in

a transitional release program. AFFIRMED.

      Philip B. Mears of Mears Law Office, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Linda J. Hines,

Assistant Attorneys General, for appellee.

      Heard by Mullins, P.J., and Bower and McDonald, JJ.
                                             2

BOWER, Judge.

       David Taft Jr., who was civilly committed as a sexually violent predator,

appeals a jury’s verdict finding he was not suitable for discharge or placement in

a transitional release program. We find the jury was properly instructed on the

State’s burden of proof, the preconditions for placement in the transitional

release program, and the necessity of an approved release prevention plan. We

affirm the decision of the district court.

       I.     Background Facts & Proceedings

       In 1987, Taft was charged with lascivious acts with a minor and other

sexual offenses. He was convicted of the offenses and sentenced to prison. Taft

was discharged in May 1991. A few days after his release, he entered a home

where two girls, ages nine and ten, were home alone and sexually assaulted one

of the girls and attempted to assault the other. See State v. Taft (Taft I), 506

N.W.2d 757, 759 (Iowa 1993). Taft was convicted of sexual abuse in the second

degree, burglary in the first degree, and assault causing bodily injury. Id. at 763.

       When Taft was discharged from prison in 2005, the State filed a petition

alleging he should be committed as a sexually violent predator under Iowa Code

chapter 299A (2005). A jury found he suffered from a mental abnormality, which

made it more likely than not he would reoffend, and he was committed to the civil

commitment unit for sexual offenders. See Taft v. Iowa Dist. Ct. (Taft II), 828

N.W.2d 309, 311 (Iowa 2013). In this program, there is an annual review to

determine whether the committed person should be discharged or placed in a

transitional release program. Id. at 313. There is a rebuttable presumption in

favor of extending civil commitment.         Id. (citing Iowa Code § 229A.8(1)).   A
                                          3

committed person is entitled to a final hearing if, based on a consideration of all

the evidence, the court finds the person has shown by a preponderance of the

relevant and reliable evidence a hearing should be held to determine whether the

person’s mental abnormality has changed so the person is not likely to reoffend.

Id. at 318.

       After Taft’s 2013 annual review, the district court denied his request for a

final hearing. Taft petitioned for certiorari, claiming sections 229A.8A(2)(d) and

(e) were unconstitutional. See Taft v. Iowa Dist. Ct. (Taft III), 879 N.W.2d 634,

638 (Iowa 2016).     Our supreme court determined the issue was not ripe for

adjudication, noting Taft had been denied a final hearing for reasons other than

those presented in sections 229A.8A(2)(d) and (e). Id. at 639 (“Even assuming

arguendo we determined the challenged criteria violate Taft’s substantive due

process liberty rights, such a determination would not have any effect on the

district court’s determination at the annual review.”).

       While Taft III, was pending, on February 25, 2015, the district court

granted Taft’s request for a final hearing, pursuant to section 229A.8(6), after his

2014 annual review.1      The final hearing was held in September 2015.           The

State’s expert, Dr. Stacey Hoem, a psychologist, testified she believed Taft was

more likely than not to reoffend.      She also testified Taft did not qualify for

transitional release under section 229A.8A because he did not have an adequate

relapse prevention plan and he recently had three disciplinary reports.           Taft

1
 Before the final hearing on the 2014 annual review was held, the 2015 annual review
was filed. Taft requested the 2015 annual review be subject to separate proceedings to
determine whether he was entitled to a final hearing based on the 2015 annual review.
The district court noted evidence of Taft’s current circumstances was relevant, but the
hearing did not specifically address the 2015 annual review.
                                         4

presented the testimony of Dr. Craig Rypma, a psychologist who stated Taft was

not likely to reoffend and his relapse prevention plan was adequate. The jury

returned a verdict finding Taft’s mental abnormality had not changed so he was

not suitable for discharge and he was not suitable for placement in the

transitional release program. Taft now appeals.

       II.     Standard of Review

       Our review in this detention matter is for the correction of errors at law.

See In re Det. of Shaffer, 769 N.W.2d 169, 172 (Iowa 2009). To the extent

constitutional issues are raised, however, our review is de novo in light of the

totality of the circumstances. See In re Det. of Matlock, 860 N.W.2d 898, 901

(Iowa 2015).

       III.    Jury Instructions

       A.      Taft claims the instructions impermissibly allowed the State to

prove Taft was dangerous by a preponderance of the evidence. The jury was

given the following instructions:

       No. 10        In order to prove that the Respondent is not suitable
       for discharge, the State must prove that the Respondent’s mental
       abnormality remains such that he is likely to engage in predatory
       acts that constitute sexually violent offenses if he is discharged.
              ....
       No. 13        As used in these Instructions, the term “likely to
       engage in predatory acts constituting sexually violent offenses”
       means that the person more likely than not will engage in acts
       constituting sexually violent offenses. The word “likely” means that
       a proposition is more probably true than not.
              You are instructed that at the time of Respondent’s
       commitment in 2005, it was determined that he was likely to
       engage in predatory acts constituting sexually violent offenses if not
       confined in a secure facility.
                                         5

The instructions also stated, “Whenever I instruct you that the State must prove a

proposition, it must do so by evidence beyond a reasonable doubt.”

      Taft claims the phrase “more likely than not,” is a preponderance of the

evidence standard. He points out the United States Supreme Court stated in

Addington v. Texas, 441 U.S. 418, 427 (1979), a state must justify confinement in

civil commitment proceedings “by proof more substantial than a mere

preponderance of the evidence.” Taft claims the district court should have given

the jury his proposed instruction on the State’s burden of proof.

      Under section 229A.8(6)(d)(1), in a final hearing the State has the burden

to prove beyond a reasonable doubt, “The committed person’s mental

abnormality remains such that the person is likely to engage in predatory acts

that constitute sexually violent offenses if discharged.” The phrase “[l]ikely to

engage in predatory acts of sexual violence,” “means that the person more likely

than not will engage in acts of a sexually violent nature.” Iowa Code § 229A.2(5).

      A similar issue was addressed by the Iowa Supreme Court in In re

Detention of Williams, 628 N.W.2d 447, 458 (Iowa 2001), where the court

considered whether the State’s burden of proof to show a person “more likely

than not” would engage in acts of a sexually violent nature, improperly reduced

the State’s burden, contrary to due process. Our court agreed with a Washington

case, which “reasoned that because Washington requires the highest standard of

proof [beyond a reasonable doubt], ‘the term “likely” can be given its ordinary

meaning without the risk of falling below the constitutionally required minimum of

clear and convincing evidence.’” Williams, 628 N.W.2d at 458 (quoting In re Det.

of Brooks, 973 P.2d 486, 491 (Wash. 1999)). The supreme court noted Iowa,
                                         6

like Washington, requires proof beyond a reasonable doubt. Id. at 458-59. The

court stated:

              We thus conclude that defining the statutory term “likely” as
       “more likely than not” or “more probable than not” will not diminish
       the required high level of proof. The instruction given by the district
       court not only comports with the statutory definition, due process
       requires nothing more. Williams’s argument to the contrary is
       without merit.

Id. at 459.

       We conclude Taft has not shown the jury was improperly instructed on the

State’s burden of proof.

       B.       Taft claims the instruction setting forth the preconditions for

placement in the transitional release program was confusing, contradictory, and

unconstitutional.

       Instruction No. 8 provided:

               To prove that Respondent is not suitable for transfer to a
       transitional release program, the State must prove that the
       Respondent’s mental abnormality has not improved to the point that
       he is appropriate for transfer to a transitional release program. The
       Respondent is appropriate for transfer to a transitional release
       program only if he satisfies all of the following criteria:
               (1)    The Respondent’s mental abnormality is no longer
       such that the person is a high risk to reoffend.
               (2)    The Respondent has achieved and demonstrated
       significant insights into his sex offending cycle.
               (3)    The Respondent has accepted responsibility for his
       past behavior and understands the impact sexually violent crimes
       have upon victims.
               (4)    A detailed relapse prevention plan has been
       developed and accepted by the treatment provider which is
       appropriate for the Respondent’s mental abnormality and sex
       offending history.
               (5)    No major discipline reports have been issued for the
       Respondent for a period of six months.
               (6)    The Respondent is not likely to escape or attempt to
       escape custody if placed in a transitional release program.
                                           7

              (7)     The Respondent is not likely to engage in predatory
       acts constituting sexually violent offenses while in the program.
              (8)     The placement is in the Respondent’s best interest.
              (9)     The Respondent has demonstrated a willingness to
       agree to and abide by all rules of the program.
              (10) The Respondent has agreed to register as a sex
       offender.
              If you find from the evidence that the State has proved that
       the Respondent does not satisfy any one or more of these criteria,
       then the Respondent is not suitable for transfer in a transitional
       release program.
              If, however, the State has failed to prove that the
       Respondent does not meet any one or more of these criteria, then
       the Respondent is suitable for transfer to a transitional release
       program.

       1.      Taft objected to the language in paragraph 1, providing he was

eligible for the transitional release program only if “his mental abnormality is no

longer such that the person is a high risk to reoffend.” He states the term “high

risk” is not defined and was confusing. “We review jury instructions to determine

if they are correct statements of the law and are supported by substantial

evidence.” State v. Scalise, 660 N.W.2d 58, 64 (Iowa 2003). “In our review, we

read all of the instructions together, not piecemeal or in artificial isolation.” Id.

       Paragraph 1 follows the language of section 229A.8A(2)(a) and, therefore,

is a correct statement of the law. Looking at the jury instructions as a whole, we

determine the use of the term “high risk” is not confusing, particularly when

considered in conjunction with instruction No. 11, which defines the term “mental

abnormality” as “a congenital or acquired condition affecting the emotional or

volitional capacity and predisposing the person to commit a sexually violent

offenses to a degree that causes the person serious difficulty in controlling his

behavior.” Looking at the instructions as a whole, we conclude the court did not

err in giving this instruction.
                                        8

      2.     Taft objected to paragraph 4, claiming he had submitted a relapse

prevention plan, which had been approved by his therapist, Bill Reese. See Iowa

Code § 229A.8A(2)(d). At the time Taft was requesting a final hearing, the State

agreed “the approval of the plan moots the claim that [Taft] is currently

disqualified based on the portion of the transitional release criteria set forth in

[section] 229A.8A(2)(d).” During the final hearing, the State presented evidence

to show Reese had not properly approved the relapse prevention plan.            Taft

claims the issue of whether he had an adequate relapse prevention plan should

not have been submitted to the jury based on the State’s earlier agreement he

had an approved relapse prevention plan.

      At the final hearing, the State argued its earlier agreement was only for the

purposes of determining whether Taft was entitled to a final hearing.        At an

annual review hearing, “[t]he burden is on the committed person to prove by a

preponderance of the evidence that there is relevant and reliable evidence to

rebut the presumption of continued commitment, which would lead a reasonable

person to believe a final hearing should be held to determine,” if the person

should be discharged or placed in a transitional release program. Iowa Code

§ 229A.8(5)(e)(1).   “This standard for determining whether a final hearing is

required is satisfied if a reasonable person would find, from the relevant and

reliable evidence presented at the annual review stage, that the committed

person has more likely than not generated a fact question on either of the issues

enumerated in section 229A.8(5)(e)(1)(a) or (b).” Taft II, 828 N.W.2d at 318.

      On the other hand, at the final hearing the State has the burden to prove

beyond a reasonable doubt (1) “[t]he committed person’s mental abnormality
                                        9

remains such that the person is likely to engage in predatory acts that constitute

sexually violent offenses if discharged” or (2) “[t]he committed person is not

suitable for placement in a transitional release program pursuant to section

229A.8A.” Iowa Code § 229A.8(6)(d).

      Thus, at the earlier proceeding Taft had the burden to show by a

preponderance of the evidence a final hearing should be held.         At the final

hearing, however, the State had the burden to show beyond a reasonable doubt

Taft should continue to be committed. We conclude the district court did not err

in finding the State’s agreement Taft met the requirement in section

229A.8A(2)(d), for purposes of determining whether he was entitled to a final

hearing, did not mean the State agreed it had shown beyond a reasonable doubt

Taft had not fulfilled the requirement to show he had developed an approved

relapse prevention plan.

      3.     Paragraph 5 provides, “No major discipline reports have been

issued for the Respondent for a period of six months.” This provision follows

section 229A.8A(2)(e). Taft claimed the issue should not be submitted to the jury

because he did not have a major discipline report for a period of six months.

      We determine there are two separate six-month periods. As discussed

above, the process to obtain a final hearing is separate from the actual final

hearing—there is a bifurcated process. For the first part, Taft did not have a

major discipline report for the six-month period before the district court ruled he

was entitled to a final hearing. Some period of time went by before the final

hearing was held.     In order to meet the second part, pursuant to section

229A.8A(2)(e), Taft would need to show he did not have a major discipline report
                                           10

in the six-month period before the final hearing. Taft testified he had six major

discipline reports in 2015, three of them arising between May and the final

hearing in September. We conclude the district court did not err in submitting

this issue to the jury.

         4.     During the discussions concerning Instruction No. 8, counsel for

Taft   mentioned      arguments     concerning    the   constitutionality   of   section

229A.8A(2)(d) and (e) were pending before the Iowa Supreme Court in Taft III,

879 N.W.2d at 638-39.           Taft raised the same arguments in the present

proceedings. The district court overruled the objections to Instruction No. 8 but

did not specifically address Taft’s constitutional issues. We conclude Taft has

not preserved error on his constitutional arguments concerning paragraphs 4 and

5 of Instruction No. 8 because the district court did not rule on the issue. See

State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008) (“Generally, we will only

review an issue raised on appeal if it was first presented to and ruled on by the

district court.”).

         IV.    Evidentiary Ruling

         Taft claims the district court abused its discretion by permitting the State to

present evidence to show he did not have an adequate relapse prevention plan.

He again points out the State agreed he had an approved relapse prevention

plan at the time Taft was requesting a final hearing. Taft claims the district court

should have ruled the State was precluded from presenting evidence to show his

relapse prevention plan was inadequate. We review a court’s evidentiary rulings

for an abuse of discretion. In re Det. of Blaise, 830 N.W.2d 310, 315 (Iowa

2013).
                                        11

      For the reasons discussed above concerning the applicability of the

State’s agreement to the final hearing, we determine the district court did not

abuse its discretion in permitting the State to present evidence during the final

hearing to show Taft did not have an adequate relapse prevention plan, as

required by section 229A.8A(2)(d).

      We affirm the decision of the district court.

      AFFIRMED.


                                                                                Opinions of the United
2004 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

9-17-2004

Knapik v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-2787

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                        PRECEDENTIAL
                                       Peter D. Keisler
         UNITED STATES                 Assistant Attorney General, Civil Division
        COURT OF APPEALS               Emily Anne Radford, Esquire
      FOR THE THIRD CIRCUIT            Assistant Director
                                       Douglas E. Ginsburg, Esquire
                                       John M . McAdams, Jr., Esquire
              No. 03-2787              Aviva L. Poczter, Esquire
                                       Nicole Nardone, Esquire (Argued)
                                       Department of Justice Civil Division
            JAN KNAPIK,                Office of Immigration Litigation
                                       P.O. Box 878
                    Petitioner         Ben Franklin Station
                                       Washington, DC 20044
                   v.
                                               Attorneys for Respondent
*JOHN ASHCROFT, Attorney General
       of the United States

                    Respondent                OPINION OF THE COURT

                                       AM BRO, Circuit Judge
       On Petition for Review
        of a Final Order of the                   Jan Knapik challenges the decision
     Board of Immigration Appeals      of the Board of Immigration Appeals
          (No. A74-902-513)            (BIA) that his conviction for attempted
                                       reckless endan germent is a crime
                                       invo lving m or a l tur pitude u n d er
         Argued June 25, 2004          § 237(a)(2)(A)(i) of the Immigration and
                                       Nationality Act (“INA”), 8 U.S.C.
    Before: AMBRO, BECKER and          § 1227(a)(2)(A)(i). Knapik argues that
     GREENBERG, Circuit Judges         crimes with a mens rea no greater than
                                       recklessness cannot involve moral
(Opinion filed : September 17, 2004)   turpitude because such crimes require
                                       intent. He also argues that, even assuming
Steven Lyons, Esquire (Argued)         reckless endan germent is a crime
Martin C. Liu and Associates, PLLC     involving moral turpitude, attempted
627 Greenwich St., 12th Floor          reckless endangerment is not. For the
New York, NY 10014                     reasons that follow, we affirm the BIA’s
                                       d e t e r m in a t i o n t h a t th e r e c k le s s
      Attorney for Petitioner          endangerment statute in this case defines a
crime involving moral turpitude, but we           Knapik with a notice to appear, charging
agree with Knapik that his conviction for         him with removability under 8 U.S.C.
attempted reckless endangerment is not            § 1227(a)(2)(A)(i), which allows the
such a crime.                                     Attorney General to order the removal of
                                                  any alien who has been convicted of a
I. Factual and Procedural Background
                                                  crime involving moral turpitude within
       Knapik is a citizen of Slovakia. He        five years of admission and for which a
legally entered the United States in June         sentence of one year or more may be
1995. On September 16, 1996, he adjusted          imposed. At the removal hearing, the
his status to that of lawful permanent            Immigration Judge (“IJ”) held that
resident. He resides in New Jersey with           Knapik’s conviction constitutes a crime
his father and sister who are both lawful         involving moral turpitude and ordered him
permanent residents. In August 2000,              removed from the United States. Knapik
Knapik pled guilty to the crime of                timely appealed to the BIA.
attempted reckless endangerment in the
                                                          In May 2003, the BIA affirmed the
first degree in violation of New York
                                                  IJ’s decision. The BIA first observed that
Penal Law § 120.25.1 The plea arose from
                                                  attempt offenses are crimes involving
an incident in which, while intoxicated,
                                                  moral turpitude if the underlying offense
Knapik drove at an excessive rate of speed
                                                  involves moral turpitude. The BIA next
against the flow of traffic on the Staten
                                                  addressed the issue of criminal
Island Expressway. He pled guilty, was
                                                  recklessness. Relying on prior decisions,
sentenced to and served four months in
                                                  it concluded that moral turpitude can lie in
jail.
                                                  criminally reckless behavior. The BIA
      In April 2000, the Immigration and          also examined the aggravating factors in
Nationalization Service (INS) 2 served            New York’s reckless endangerment
                                                  statute, analogized to prior BIA cases
                                                  involving manslaughter and assault with a
       1
          Section 120.25 provides: “A             deadly weapon, and distinguished prior
person is guilty of reckless endangerment         BIA cases involving simple assault. Taken
in the first degree when, under                   together, the BIA concluded that the
circumstances evincing a depraved                 elements of depravity, recklessness and
indifference to human life, he recklessly         grave risk of death to another person are
engages in conduct which creates a grave          sufficient to establish moral turpitude.
risk of death to another person.”
                                                        Knapik timely filed a petition for
       2
         On March 1, 2003, the INS ceased         review of the BIA’s decision. We have
to exist as an independent agency within
the United States Department of Justice
and the INS’s functions were transferred to       L. No. 107-296, §§ 441, 451, 471, 116
the Department of Homeland Security.              Stat. 2135 (2002). The BIA remains
See Homeland Security Act of 2002, Pub.           within the Department of Justice.

                                              2
jurisdiction to review final orders of              term encompasses.            Particularly, he
removal pursuant to 8 U.S.C. § 1252(a).             contends the BIA’s determination that
                                                    recklessness crimes may constitute moral
           II. Standard of Review
                                                    turpitude is not entitled to deference. The
        Under Chevron, U.S.A., Inc. v.              First, Second, Fifth and Eighth Circuits,
Natural Res. Def. Council, Inc., 467 U.S.           however, have concluded that courts
837 (1984), we review an agency’s                   should defer not only to the BIA’s
construction of a statute it administers            definition of moral turpitude but also to its
under a two-step inquiry. If congressional          determination that the elements of a
intent is clear from the statute’s language,        criminal statute satisfy that definition. See
we must give effect to it as written. Id. at        Cabral v. INS, 15 F.3d 193, 195 (1st Cir.
842-43. If Congress’s intent is silent or           1994) (“We therefore inquire whether the
ambiguous, we must decide if the agency’s           agency interpretation was arbitrary,
action is based on “a permissible                   capricious, or clearly contrary to the
construction of the statute.” Id. at 843.           statute.”); Michel v. INS, 206 F.3d 253,
                                                    263 (2d Cir. 2000) (stating that “in order to
        We afford deference, however, only
                                                    affirm the BIA’s determination [in regard
when an agency construes or interprets a
                                                    to moral turpitude], we need only conclude
statute it administers. See id. at 843-44.
                                                    that its interpretation is reasonable and that
In Francis v. Reno, we refused to afford
                                                    it ‘considered the matter in a detailed and
Chevron deference to the BIA’s
                                                    reasoned fashion’” (citation omitted));
interpretation of the term “felony” as used
                                                    Hamdan v. INS, 98 F.3d 183, 184-85 (5th
in 18 U.S.C. § 16 because it is a general
                                                    Cir. 1996) (“We accord deference to the
criminal statute not implicating the BIA’s
                                                    BIA’s interpretation of questions such as
expertise. 269 F.3d 162, 168 (3d Cir.
                                                    those before us here” — i.e., whether
2001). In Sandoval v. Reno, we declined
                                                    Hamden’s record of conviction “support[s]
to give deference to the BIA’s decision as
                                                    a finding of moral turpitude.”); Franklin v.
to the effective date of a statute because
the “issue [of] a statute's effective date is
not one that implicates agency expertise in
                                                    “moral turpitude.” The term is not defined
a meaningful way. . . .” 166 F.3d 225, 239
                                                    in the INA, and “legislative history leaves
(3d Cir. 1999). Accordingly, we must
                                                    no doubt . . . that Congress left the term
decide which aspects of the BIA’s decision
                                                    ‘crime involving moral turpitude’ to future
are entitled to Chevron deference.
                                                    administrative and judicial interpretation.”
       Knapik argues that Chevron                   Cabral v. INS, 15 F.3d 193, 195 (1st Cir.
deference applies only to what “moral               1994); see also Jordan v. De George, 341
turpitude” means, 3 not to what crimes that         U.S. 223, 234 (1951) (Jackson, J.,
                                                    dissenting) (stating that “Congress did not
                                                    see fit to state what meaning it attributes to
       3
         We clearly afford Chevron                  the phrase ‘crime involving moral
deference to the BIA’s definition of                turpitude’”).

                                                3
INS, 72 F.3d 571, 572 (8th Cir. 1995)                                       III. Analysis
(stating “we must decide whether the BIA
                                                                     An alien, even if a lawful
has reasonably interpreted its statutory
                                                          permanent resident, is subject to removal
mandate to deport aliens convicted of
                                                          if he or she has been convicted of a crime
crimes involving moral turpitude”). In
                                                          “involving moral turpitude” within five
contrast, the Ninth Circuit reviews de novo
                                                          years of the date of admission and the
whether a particular criminal statute
                                                          conviction is one for which a sentence of
involves moral turpitude.        See, e.g.,
                                                          one year or longer may be imposed. 8
Rodriguez-Herrera v. INS, 52 F.3d 238,
                                                          U.S.C. § 1227(a)(2)(A)(i)(I)-(II). As for
240 n.4 (9th Cir. 1995); cf. Franklin, 72
                                                          the length of sentence requirement, though
F.3d at 578 (Bennett, J., dissenting)
                                                          Knapik received but a four month
(recognizing “a split of authority, or, at
                                                          s e n t e n c e , f i r st d e g r e e r e c k l es s
least, a fundamental difference in approach
                                                          endangerment is a class D felony, N.Y.
to or perception of the issue”).
                                                          Penal Law § 120.25, punishable by up to
       We adopt the majority position and                 seven years imprisonment, id. at §
conclude that the BIA’s determination that                70.00(2)(d).
reckless endangerment crimes may involve
                                                                  Thus the only issue we must decide
moral turpitude is entitled to Chevron
                                                          i s w h e t h e r a tt e m p t e d r e c k l e s s
deference. This issue goes to the heart of
                                                          endangerment in the first degree is a crime
the administrative scheme established
                                                          involving moral turpitude. This inquiry
under the INA. In this context, the BIA’s
                                                          entails a categorical approach, focusing on
conclusions as to reckless endangerment
                                                          the underlying criminal statute “rather than
implicate BIA expertise.
                                                          the alien’s specific act.”         De Leon-
          But in determining what the                     Reynoso v. Ashcroft, 293 F.3d 633, 635
elements are of a particular criminal                     (3d Cir. 2002) (citing Alleyne v. INS, 879
statute deemed to implicate moral                         F.2d 1177, 1185 (3d Cir. 1989)); see also
turpitude, we do not defer to the BIA. See                Rodriguez-Herrera, 52 F.3d at 239-40
Michel, 206 F.3d at 262 (stating that when                (stating that, in analyzing whether a crime
“the BIA is interpreting state or federal                 involves moral turpitude, “we must focus
criminal laws, we must review its decision                on the crime categorically as defined by
de novo” (citing Hamdan, 98 F.3d at 185)).                the statute, and not on the specific conduct
As discussed below, it is unclear what the                of Rodriguez-Herrera”). Accordingly, “we
e l e m e n t s o f a t te m p t e d r e c k le s s       look to the elements of the statutory state
endangerment (as opposed to reckless                      offense, not to the specific facts. We rely
endangerment) even are. This is not an                    on ‘what the convicting court must
issue that implicates the BIA’s expertise,                necessarily have found to support the
and we decline to afford Chevron                          conviction and not to other conduct in
deference to the BIA’s decision relating to               which the defendant may have engaged in
this matter. Our review of this issue is                  connection with the offense.’” Wilson v.
thus de novo.                                             Ashcroft, 350 F.3d 377, 381-82 (3d. Cir.

                                                      4
2003) (quoting Steele v. Blackman, 236             Matter of Franklin, 20 I. & N. Dec. 867,
F.3d 130, 135 (3d Cir.2001)).4                     868 (BIA 1994); Matter of Danesh, 19 I. &
                                                   N. Dec. 669, 670 (BIA 1988), and
        Following the categorical approach,
                                                   decisions of our Court, see, e.g., De Leon-
and in light of our deferential review on
                                                   Reynoso, 293 F.3d at 636 (quoting with
the issue, the BIA did not act unreasonably
                                                   approval the following definitions of
in determining that New York’s reckless
                                                   moral turpitude: (1) “[c]onduct that is
endangerment statute defines a crime
                                                   contrary to justice, honesty, or morality”;
involving moral turpitude. But reviewing
                                                   and (2) “anything done contrary to justice,
de novo the BIA’s conclusions as to
                                                   honesty, principle, or good morals”
attempted reckless endangerment, we
                                                   (citations omitted)). As such, the BIA’s
conclude that the categorical nature of the
                                                   definition of moral turpitude was
moral turpitude inquiry compels the
                                                   reasonable.
conclusion that this crime does not involve
moral turpitude.                                          Applying the BIA’s definition, the
                                                   New York statute under which Knapik was
      A. Reckless Endangerment
                                                   convicted does not contain an intent
       The BIA in this case defined moral          requirement. To repeat, N.Y. Penal Law
turpitude as conduct that is inherently            § 120.25 provides that a “person is guilty
base, vile, or depraved, contrary to the           of reckless endangerment in the first
accepted rules of morality and the duties          degree when, under circumstances
owed other persons, either individually or         evincing a depraved indifference to human
to society in general. The BIA also noted          life, he recklessly engages in conduct
that moral turpitude normally includes             which creates a grave risk of death to
only acts that are malum in se (i.e., an act       another person.”
that is inherently immoral).          These
                                                          Knapik correctly notes that a strain
statements are in accord with long-
                                                   of BIA decisions equates moral turpitude
established BIA principles, see, e.g.,
                                                   with evil intent. Matter of Khourn, 21 I. &
                                                   N. Dec. 1041, 1046 (BIA 1997) (stating
       4
         Wilson is not a moral turpitude           the BIA “has held that ‘evil intent’ is a
case. The language quoted related to               requisite element for a crime involving
determining whether Wilson’s state drug            moral turpitude” (citing Matter of Serna,
conviction constituted an “aggravated              20 I. & N. Dec. 579, 582 (BIA 1992)).
felony” under 8 U.S.C. § 1101(a)(43). See          Matter of Flores, 17 I. & N. Dec. 225, 227
Wilson, 350 F.3d at 380-82. While                  (BIA 1980) (stating “evil or malicious
aggravated felony cases may be irrelevant          intent is said to be the essence of moral
to the moral turpitude inquiry, we                 turpitude”); Matter of Abreu-Semino, 12 I.
nonetheless have endorsed a categorical            & N. Dec. 775, 777 (BIA 1968)
approach for both types of cases. In this          (concluding “crimes in which evil intent is
context, we believe the discussion in              not an element, no matter how serious the
Wilson and similar cases is instructive.           act or how harmful the consequences, do

                                               5
not involve moral turpitude”).                     N. Dec. at 870-71, and Matter of Wojtkow,
                                                   18 I. & N. Dec. 111, 113 (BIA 1981),
        In this vein, prior to 1976 the BIA
                                                   involve moral turpitude. Simple assault
was of the opinion that criminally reckless
                                                   does not. Matter of Fualaau, 21 I. & N.
conduct was not so debased as to involve
                                                   Dec. 475, 478 (BIA 1996).
moral turpitude. See, e.g., Matter of
Gantus-Bobadilla, 13 I. & N. Dec. 777                      We hold that the BIA did not act
(BIA 1971). But in Matter of Medina the            unreasonably in concluding New York’s
BIA reconsidered its position and                  first degree reckless endangerment statute
concluded “that moral turpitude can lie in         is a crime involving moral turpitude. First
criminally reckless conduct.” 15 I. & N.           degree reckless endangerment is a much
Dec. 611, 613 (BIA 1976). Examining the            more severe offense than drunk driving,
Illinois definition of recklessness, the BIA       which almost certainly does not involve
found persuasive that a                            moral turpitude. See Matter of Lopez-
                                                   Meza, 22 I. & N. Dec. 1188 (BIA 1999)
       person acting recklessly
                                                   (expressing opinion that “a simple DUI
       must consciously disregard a
                                                   offense” will almost never rise to the level
       substantial and unjustifiable
                                                   of moral turpitude); cf. Dalton v. Ashcroft,
       risk, and such disregard
                                                   257 F.3d 200, 205-06 (2d Cir. 2001)
       must constitute a gross
                                                   (concluding that New York’s “driving
       deviation from the standard
                                                   while intoxicated” statute does not
       of care which a reasonable
                                                   constitute a “crime of violence” under the
       person would exercise in the
                                                   INA). New York Penal Law § 120.25
       situation. This definition of
                                                   contains aggravating factors, requiring that
       recklessness requires an
                                                   a defendant create a “grave risk of death to
       actual awareness of the risk
                                                   another person” “under circumstances
       created by the criminal
                                                   evincing a depraved indifference to human
       violator’s action.
                                                   life.” In this context, the BIA could
Id. at 613-14 (emphasis in text).                  reasonably conclude that the elements of
                                                   depravity, recklessness and grave risk of
       In the twenty-eight years since
                                                   death, when considered together, implicate
Medina, the BIA consistently has
                                                   accepted rules of morality and the duties
interpreted moral turpitude to include
                                                   owed to society. Cf. Franklin, 72 F.3d at
recklessness crimes if certain statutory
                                                   573 (“In the framework of our deferential
aggravating factors are present.      For
                                                   review, we cannot say the BIA has gone
example, the BIA limits moral turpitude to
                                                   beyond the bounds of reasonableness in
crimes in which a defendant consciously
                                                   finding that an alien who recklessly causes
disregards a substantial risk of serious
                                                   the death of her child by consciously
harm or death to another.            Thus
                                                   disregarding a substantial and unjustifiable
recklessness crimes for assault with a
                                                   risk to life has committed a crime that
deadly weapon, Matter of Medina, or
manslaughter, Matter of Franklin, 20 I. &

                                               6
involves moral turpitude.”). 5                      [or she] engages in conduct which tends to
                                                    effect the commission of such crime.”
B. Attempted Reckless Endangerment
                                                    People v. Kassebaum, 744 N.E. 2d 694,
       We do not disagree with previous             698 (N.Y. 2001) (emphasis added)
BIA decisions concluding attempt offenses           (quoting N.Y. Penal Law § 110.00). Yet
can be crimes involving moral turpitude.            by its very nature acting recklessly is
See, e.g., Matter of Davis, 20 I. & N. Dec.         inconsistent with the mens rea required for
536, 545 (BIA 1992) (stating “[t]here is no         attempt. A person cannot intend to
distinction for immigration purposes in             commit a criminally reckless act. He or
respect to moral turpitude, between the             she either acts recklessly or does not.
commission of the substantive crime and             Addressing the statute at issue in our case,
the attempt to commit it” (citation                 the New York Appellate Division agreed
omitted)). We also take no issue with               with this sentiment, concluding that the
previous BIA decisions that it cannot go            “ c ri m e o f a t te m p t e d reckle s s
behind a valid final record of conviction           endangerment is nonexistent since it is a
— i.e., that the BIA cannot examine the             nonintent offense.” People v. Trepanier,
particular facts of a case. See, e.g., Matter       84 A.D. 2d 374, 380 (N.Y. App. Div.
of C-, 20 I. & N. Dec. 529, 532 (BIA                1982) (affirming the lower court’s decision
1992). In its opinion in this case, however,        to dismiss the indictment as to this charge).
the BIA glosses over the peculiar conflict          Further, New York courts have concluded
between attempt crimes and recklessness.6           in other contexts that the concept of an
       Under New York law, a “person is             atte mpte d r e c kl e s s n es s c r im e is
guilty of an attempt to commit a crime              nonsensical. See, e.g., People v. Terry,
when, with intent to commit a crime, he             104 A.D. 2d 572, 573 (N.Y. App. Div.
                                                    1984) (stating “one cannot legally be
                                                    found guilty of attempted murder in the
       5
           We also reject Knapik’s                  second degree by reckless conduct”).
contention that his conviction is                           The only contrary authority in New
distinguishable from manslaughter or                York is People v. Foster, 19 N.Y.2d 150
assault with a deadly weapon because the            (1967).      Foster was charged with
reckless endangerment statute does not              manslaughter in the first degree and
require injury to an individual. With               ultimately pled guilty to attempted
regard to reckless acts, moral turpitude            manslaughter in the second degree. On
inheres in the conscious disregard of a             appeal, Foster argued his conviction had
substantial and unjustifiable risk of severe        no basis in law and violated due process.
harm or death. Knapik’s good fortune in             The New York Court of Appeals rejected
not injuring or killing anyone does not             this argument, concluding that Foster
change the quality of his actions.                  knowingly accepted his plea “in
       6
                                                    satisfaction of an indictment charging a
        As noted previously, we exercise
                                                    crime carrying a heavier penalty. In such
de novo review in resolving this issue.

                                                7
case, there is no violation of defendant’s                 Cir. 2002) (quoting Drakes v. Zimski, 240
right to due process.” Id. at 153.                         F.3d 246, 248 (3d Cir. 2001)). 7 This
                                                           means, in the context of our case, that the
         Our      case,       how eve r,         is
                                                           elements of the underlying offense must
distinguishable from Foster. The concern
                                                           necessarily establish that all convictions
driving Foster was manipulation of the
                                                           involve moral turpitude. Wilson, 350 F.3d
state criminal process — i.e., a defendant
                                                           at 381-82. See also Michel, 206 F.3d at
may not induce a plea agreement, receive
                                                           263; Okoroha v. INS, 715 F.2d 380, 382
a reduced sentence and then challenge his
                                                           (8th Cir. 1983).8 Attempted reckless
or her conviction. See id. at 153-54 (“The
defendant declined to risk his chances with
a jury. He induced the proceeding of
                                                                  7
which he now complains. . . . While there                           Valansi, like Wilson (see note 4
may be question whether a plea to                          and accompanying text), is an aggravated
attempted manslaughter is technically and                  felony, not moral turpitude, case.
logically consistent, such a plea should be                       8
                                                                   In an opinion issued the same day
sustained on the ground that it was sought
                                                           as the opinion in this case, we engaged in
by [the] defendant and freely taken as part
                                                           an extensive analysis of the categorical
of a bargain which was struck for the
                                                           approach as applied in aggravated felony
defendant’s benefit.” (emphasis added)).
                                                           cases. See Singh v. Ashcroft, No. 03-
In contrast, Knapik’s plea did not decrease
                                                           1532, __ F.3d __ (3d Cir. Sept. __, 2004).
the level of the charged offense or subject
                                                           Singh noted that while most prior Third
him to a less severe sentence. He was
                                                           Circuit cases had employed the “formal
charged with first degree reckless
                                                           categorical approach” from Taylor v.
endangerment and he pled guilty to
                                                           United States, 495 U.S. 575, 600 (1990) —
a t t em p t e d f i r st d e g r e e r e c k l es s
                                                           which focuses exclusively on the statutory
endangerment. More importantly, we are
                                                           elements of the underlying offense —
not reviewing a due process challenge to a
                                                           others deemed it permissible to look
state court conviction; we are assessing the
                                                           beyond the statutory elements of the
immigration implic ations of that
                                                           underlying offense.
conviction.
       As noted previously, the moral                             In reconciling these cases, Singh
turpitude inquiry is categorical. De Leon-                 delineated two situations in which the
R eyn oso, 293 F.3d at 635;                                formal categorical approach properly may
Rodriguez-Herrera, 52 F.3d at 239-40.                      be abandoned. The first is when the terms
Under the categorical approach, we have                    of the statute on which removal is based
cautioned against going “beyond the                        invites inquiry into the facts of the
offense as charged and scrutiniz[ing] the                  underlying conviction.     For example,
underlying facts” of a case to determine                   Nugent v. Ashcroft, 367 F.3d 162 (3d Cir.
whether a crime involves moral turpitude.                  2004), and Munroe v. Ashcroft, 353 F.3d
Valansi v. Ashcroft, 278 F.3d 203, 214 (3d                 225 (3d Cir. 2003), concerned 8 U.S.C.

                                                       8
                                                    endangerment is not a crime involving
                                                    moral turpitude because, categorically
§ 1101(a)(43)(M)(i), which defines an               speaking, the concept makes no sense.
aggravated felony as an offense that                Attempt (necessarily requiring intent to
“involves fraud or deceit in which the loss         commit a crime) is inconsistent with
to the victim or victims exceeds $10,000.”          recklessness (which, by definition, implies
In both cases, however, the relevant                acting without intent). Terry, 104 A.D. 2d
criminal statute did not include a “loss            at 573; Trepanier, 84 A.D. 2d at 380. Put
greater than $10,000” element.           See        differently, we cannot say that a conviction
Nugent, 367 F.3d at 168 n.2 (quoting 18             for attempted reckless endangerment
Pa. Cons. Stat. § 3922(a)); Munroe, 353             necessarily involves moral turpitude
F.3d at 226 (citing N.J. Stat. Ann. § 2C:20-        without also abandoning the categorical
4). Nonetheless, both Nugent and Munroe             approach.9
found it proper to examine the amount of
loss established. See Nugent, 367 F.3d at
175 (noting the parties had “stipulated that        convicted is divided into discrete
Nugent’s state conviction was based on a            subsections, and (2) it was unclear from
bad check amounting to only $4,831.26”;             the BIA’s decision which subsection it
Munroe, 252 F.3d at 226 (looking to the             believed Hamdan was convicted under and
indictment and record of conviction).               which subsections implicated moral
                                                    turpitude).
       The second exception to the
categorical approach is when the                            Examination of these cases further
underlying criminal statute is written in the       supports our position in this case. Both
disjunctive (i.e., the statute criminalizes         Nugent and Munroe dealt with a provision
similar but legally distinct conduct) such          of the INA, 8 U.S.C. § 1101(a)(43)(M)(i),
that some, but not all, convictions under           not relevant to the moral turpitude inquiry.
the statute place the alien within the              And unlike the statutes at issue in Valansi
removal category for im migra tion                  and Hamdan, New York’s reckless
purposes. Valansi was such a case. 278              endangerment statute is written neither in
F.3d at 214-17 (in entering plea for                the disjunctive nor in subsections.
embezzlement of monies from her                     Accordingly, the Government has supplied
employer bank, petitioner avoided                   (and we can think of) no principled reason
admitting that she intended to defraud,             not to apply the formal categorical
thus not qualifying as an aggravated felony         approach.
for removal purposes). See also Hamdan,
                                                           9
98 F.3d at 187-89 (granting the petition for                  While the Government does not
review and remanding for further                    ask us specifically to abandon the
examination of the record of conviction             categorical approach in cases such as ours
because (1) the Louisiana kidnapping                (i.e., when it counsels against deportation),
statute under which Hamdan was                      that would be the effect. Under the

                                                9
                 *****
        In this context, we affirm the BIA’s
decision that New York Penal Law
§ 120.25, reckless endangerment in the
first degree, is a crime involving moral
turpitude, but we reverse the BIA’s
conclusion that Knapik’s state conviction
for attempted reckless endangerment in the
first degree is a crime involving moral
turpitude. Therefore, we grant Knapik’s
petition for review and reverse the BIA’s
order of removal.

categorical approach, courts and the BIA
have long declined to consider arguments
that, despite the elements of an offense, an
alien’s individual conduct did not fit
w i t h in a p articular IN A -def ined
deportation category. See, e.g., Alleyne,
879 F.2d at 1185 (citations omitted);
Okabe v. INS, 671 F.2d 863, 864-65 (5th
Cir. 1982); Matter of C-, 20 I. & N. Dec. at
532 (citations omitted). Now that “the
shoe is on the other foot,” it would be
perverse irony to allow the Government to
use the categorical approach in petitioner
appeals but to abandon that approach when
the Government appeals.

                                               10


100 Ariz. 214 (1966)
412 P.2d 710
In the Matter of a Member of the State Bar of Arizona, Martin S. ROGERS, Respondent.
No. 8649.
Supreme Court of Arizona. En Banc.
March 30, 1966.
J. Mercer Johnson, Tucson, for respondent.
Thomas Chandler, Tucson, for State Bar.
McFARLAND, Justice:
Formal charges were filed against Martin S. Rogers, hereinafter referred to as respondent, *215 to the effect that he had violated the Canons of Professional Ethics of an attorney at law.
The charges upon which the board of governors found against the respondent grew out of the handling of the estate of Olivia M. Kuhlmann, deceased, while he was executor. The board of governors found that:
Count One, he had purchased from himself individually a certain 1957 Ford automobile for the sum of $825.00, and that said sum was greatly in excess of the fair market value of the automobile, contrary to Canon 6 and Canon 11 of the canons of professional ethics;
Count Two, respondent paid to his son and daughter-in-law $300 a month for caring for the dog named "Star," said sum being exorbitant and excessive, and that thereby respondent had used his position as executor of the estate for personal gain and benefit of his family. He had purchased a 1963 Pontiac Bonneville station wagon for the sum of $5,277.93 for the alleged purpose of transporting the dog, but that it was used by himself and his family, which amounted to misconduct and constituted a violation of Canon 11 of the canons of professional ethics; that he purchased a washing machine for the sum of $418.01 for the alleged purpose of washing the bed clothing of the dog "Star" which was unreasonable and unnecessary; that purchasing a dog house and fence at a cost of $359.77 was also unreasonable and unnecessary; and that while these charges would not, standing alone, amount to misconduct on the part of respondent, they were evidence of his mishandling of the affairs of the estate.
Count Three involved the conduct of the respondent in permitting and inviting publicity from certain television outlets, and Count Four was in regard to his conduct at hearings before the court commissioner. However, the board of governors found that the evidence in regard to these two counts was insufficient to find the respondent guilty of misconduct.
The board of governors, in its findings, recommended that respondent be suspended from the practice of law for a period of two years.
Respondent is 56 years of age, has been a resident of the community of Tucson, Arizona, for some 36 years, and is married and the father of three grown children. He has had considerable business experience, having acquired and conducted a college book store while attending the University of Arizona. In 1942 he was admitted to the bar, and has practiced law in the city of Tucson ever since that time. During this period he has bought and sold real estate, and to some extent dealt in the buying and selling of automobiles.
Respondent testified that in July 1962 Olivia M. Kuhlmann, now deceased, consulted *216 him for the purpose of preparing a will, and gave his version of the transaction. She had had considerable disappointment in life, having lost her husband, was disappointed in not having a family of her own, and was not getting along very well with her brother and sister. She stated that her life "had been a very sad and lonely one," and that she had no friends. She expressed her desire to "see that those dogs were adequately cared for." There were no relatives very friendly to her. At that time she had two dogs  one of which died before these proceedings were instituted  and she was anxious to provide for their care after her demise. She had told respondent that she was not in very good health, and that the doctor had told her that she had but a very short time to live. After going over her situation in detail, he prepared a will for her, in which she provided for the care of the dogs; and, on the advice of respondent, she left the residue of her estate to some friends  Sol Rosenbloom, Mayme Mullen, and William Walsh. He called the three friends the "straw men," placed in the will in order to provide for residuary legatees. He said that, in effect, she wanted her property to go for the care of the dogs. She returned to his office a second time for the purpose of making the wording stronger for the care of the dogs.
It was the second will which was admitted for probate. Paragraph seven of the will reads as follows:
"I direct my executor to make necessary arrangements for the permanent care of my two dogs, a Chow champion thoroughbred, about ten years old, and a Weimanier [sic] thoroughbred, about five years old, and I direct that sufficient funds be paid for their care within the discretion of my executor."
This will was dated the 11th of January 1963, and was admitted in probate on February 25, 1963. The estate was appraised at $62,885.03. Respondent, who was named as executor in the will, was appointed to that position, and filed his first account and report on or about the 20th day of June 1963. There were objections filed to the account and report. The court authorized the payment of certain items, adjusted and rejected others, as follows:

*217
 Voucher                                        Petition
   No.                                          Request      Allowed
 6 3-26-63  Broadway Animal Hospital,   $  75.00     $  75.00
             board for dogs
 7 7- 4-63  Broadway Animal Hospital,
             board for dogs                       86.00        86.00
14 4- 5-63  Maurine R. Rogers, care of
             STAR for April                      100.00        20.00
15 4- 5-63  Sears, washer                 418.01   disallowed
17 4-14-63  Quebedeaux Pontiac,
             Station Wagon, trans.             4,427.68    withdrawn
18 4-18-63  Richard M. Rogers, care of
             STAR, April                         200.00        40.00
19 4-27-63  Paul H. Jones, Inc.,
             insurance for car                   132.60    withdrawn
22 4-30-63  Martin S. Rogers, Trade-in
             of 1957 Ford                        825.00    withdrawn
23 5-10-63  Mike Putter, dog fence and
             house                               359.77       135.00
24 5-10-63  Richard M. Rogers, care of
             STAR, May                           300.00        60.00
25 6-25-63  Broadway Animal Hospital,
             vet. care of dog                     22.00        22.00
27 6- 5-63  Pima County, dog license        3.00         3.00
28 6-17-63  Richard M. Rogers, care of
             STAR, June                          300.00        60.00
29 7- 2-63  Richard M. Rogers (2nd
             Account) care of STAR,
             July, paid $300.00                   75.30        75.30
                                                            ________
   Total Allowed Executor for Dog Care                      $ 576.30

Respondent contended that the provision of the will directing that sufficient funds be paid for the care of the dogs within the discretion of her executor gave him full authority in the exercise of his discretion to expend the money for the items questioned in his report. He testified in the hearing that Mrs. Kuhlmann, deceased, had told him that she wanted him or his family to care for the dogs, and she wanted the money expended for this purpose. We do not deem it necessary to go into detail in *218 regard to this testimony. It will suffice to say that the testimony indicates Mrs. Kuhlmann, deceased, being lonely in life, had given her love and affection to these dogs, and that they had in some measure filled a gap by returning affection to her. This is made understandable by the many books and poems which have been written in regard to the faithfulness and devotion of dogs to their masters.
During the course of the hearing on the account and report respondent resigned as executor, and an administrator with will annexed de bonis non of the estate of Olivia M. Kuhlmann was appointed. One of the dogs had died shortly after the death of decedent. The court entered an order giving the care and custody of the remaining dog, "Star," to the Hon. Herbert F. Krucker, judge of the superior court of Pima County, Arizona, and approved expenditures to Judge Krucker in the sum of $5,309.50, which sum included $4,000 for the permanent care of the dog, and $500 for future medical expense for the dog.
Respondent promptly filed an account report setting forth the expenses which he contended were justifiable and within his discretion. We do not deem it necessary to discuss in detail such items as the purchase of the washing machine, the building of the fence and the dog house, and the equipment which was built on the property owned by respondent but occupied by his son. There was a conflict in the testimony in regard to the necessity of these items for the care of the dog. They were submitted to the court in an account and report for approval. The court reduced the amount of the sum requested for allowance for the fence from $359.77 to $135.00, but allowed payment for a fence for the same dog of $190.10 for additional fence, and $33.80 for a dog house to Judge Krucker. So it is evident that the court found that it was desirable to have a fence and a dog house for the care of the dog Star, and in our judgment there was nothing dishonest or in violation of the canons of ethics in the submission of a bill for the expenditure of a sum in excess of what the court, in its judgment, found was necessary.
Counsel for the state bar states a weekly trip to the laundromat would have been sufficient, and the buying of a washing machine and drier was not necessary. This is a matter of opinion. So these items, standing alone, might show lack of propriety, but would not be sufficient to substantiate the charge of violation of the canons of professional ethics for attorneys.
In regard to the matter of the items for the care of the dog, here, again, is a question of fact which had to be determined by the court. The account and report having been filed on the 2nd day of June 1963  a little less than three months after the will was admitted to probate  would indicate that respondent, in good *219 faith, requested an early approval of the manner in which he was handling the estate.
The more serious charge is in regard to the item of the $825 on trading in the Ford automobile belonging to Martin S. Rogers on a Pontiac, and the buying of the Pontiac Bonneville station wagon at a total cost of $5,277.93 for the care of the dog Star. The local administrative committee initially found the fair market value of the Ford to be $200. This, counsel for the bar points out, was based upon the testimony that the trade-in allowance for the Ford was computed by taking its wholesale value and determining how much of the company's profit could be sacrificed to make the transaction after an appraisal of the value of the 1957 Ford was set at $200, and the company's profit was reduced by $650. There being a conflict in the testimony as to the real value of the car, we feel that we should accept the finding of the bar committee that the value of the automobile was less than the trade-in allowance.
Richard M. Rogers, son of respondent, testified that he had used the 1957 automobile for the care of the dog, taking it to the country in the automobile, and to take the laundry out to be done, and for the purpose of doing shopping for the dog. He then stated, in answer to the question as to whether this automobile seemed to suffice for most of those purposes, that
"Well, if you want to travel around in an old wreck, I guess it's just fine."
The witness then pointed out, in answer to questions, the reason why he did not consider the 1957 automobile sufficient.
"Q (By Mr. Chandler) Then your objection to the use of that car in the caring for the dog was that it was an old wreck?
"A Well, it was insufficient too, I mean if this is the one I remember, it was no doubt just two doors, and it was  ran like a bomb, I mean it was just  just like it was going to fall apart any minute. And the thing could drool over the seat right onto you, directly onto you.
"Q Wasn't  go ahead.
"A And it would completely  well, it would just get on your nerves and then the dog could jump right over the seat up there with you and I think this did happen one time.
"Q Wasn't this an obedient dog?
"A Yes.
"Q And wouldn't it sit where it was told to sit for as much as minutes at a time?
"A Yes, but often when you'd be going along, the dog was just so affectionate it would start licking you and that sort of thing, and want to get in the front seat and go up to you, before you knew it you'd have it up there."
*220 While the testimony supported the position of the bar that the automobile was not of the value placed upon it by the respondent, it did give some justification for trading it in on the other car  that is, it had been previously used for the care of the dog. The respondent withdrew the request for payment for the Pontiac automobile. We do not have a finding of the court in regard to the need of the automobile. There is testimony, however, that both the washing machine and the dryer were used by the family of respondent for personal use; also that the automobile was used for other purposes than merely transporting the dog  while testimony showed the dog was taken along, respondent used the car to go to court in Bisbee, and it was used for trips to Nogales for a family picnic, and to the Grand Canyon with respondent and his family.
This is unquestionably an unusual will, and for this reason it has attracted unusual attention, for which respondent is not responsible. The provision in the will itself, and particularly the testimony of Carole Brobelch, a neighbor of the deceased, who testified that Mrs. Kuhlmann had told her that she had gone to the respondent, and had no worries concerning the dogs; that she didn't care how much it cost to take care of her dogs the way she wanted them taken care of; and this was the reason she had gone down and had the will made up in the first place, stating:
"A Unless I'm repeating that those dogs were to be taken care of and given the things that they had plus what she couldn't give them because of her age, and this was her main concern were those dogs. This was the reason that she went down and had a Will made up in the first place."
While respondent and his family were not paid for all of the claims presented, they were presented to the court for the purpose of getting them approved. So the question is whether the respondent, in the presentation of these claims to the court and the representations made in regard to the same being necessary for the care of the dog, abused his discretion as to violate the canons of professional ethics governing the practice of attorneys. While request for payment of one of the items might not be sufficient, all of the expenditures presented for approval give a different picture. For example, merely buying a washing machine would not, of itself, be sufficient to find an abuse of discretion, had respondent taken into consideration the value of that use in determining the care to be paid for the dog. Likewise, while the evidence indicated that $300 a month was a high figure for the care of the dog, since that was only for a short period of time before the presentation of the account and report requesting approval of his actions, it would not have been considered so high had the son, who *221 was caring for the dog, furnished the washing machine and the automobile for transportation for the dog. This would likewise be true in regard to the automobile. Had the son provided the items necessary for the rest of the care at a lower rate because the estate furnished the automobile the picture would have been different.
Here there is a situation in which a woman, because she was very fond of her dogs placed trust in the respondent, and gave him the discretion as to what was needed for their care. The will used the words:
"I direct that sufficient funds be paid for their care within the discretion of my executor."
This shows that she meant only funds "sufficient" for the care of the dogs to be spent  and does not direct that he spend "all" of the money she left for their care. Discretion in the care of beneficiaries under wills has been held not to be arbitrary. In the case of Stallard v. Johnson, 189 Okl. 376, 116 P.2d 965, the court, in speaking of such a discretion, said:
"* * * On the contrary we find that it has been held where the question has been properly submitted that the discretion vested in a trustee must be fairly and reasonably exercised and if not then the same will be compelled by a court of equity. * * *" 116 P.2d at 967
Mrs. Kuhlmann was willing for him to spend all of the money if it were necessary for the care of her dogs, but in her will she did not provide for the expenditure of more than was "sufficient for the care of the dogs."
We agree with the state bar that cumulative acts must be taken into consideration. Where one isolated act may not call for action, several considered together would
"* * * show a course of conduct on the part of respondent incompatible with a proper appreciation by him of that confidential relation which an attorney should maintain toward his client. * *" In re Russell, 57 Ariz, 395, 406, 114 P.2d 241, 245
We agree with respondent that this court is the trier of the ultimate facts. In re Tribble, 94 Ariz. 129, 382 P.2d 237. We also recognize that the evidence of unprofessional conduct of attorneys must be clear and convincing before disciplinary action is taken. In re Lewkowitz, 70 Ariz. 325, 220 P.2d 229; In re Sweeney, 51 Ariz. 9, 73 P.2d 1349; In re Myrland, 43 Ariz. 126, 29 P.2d 483. However, as pointed out by the bar, the recommendations of the board of governors is entitled to serious consideration. In re MacDonald, 56 Ariz. 120, 105 P.2d 1114. We find, from examination of the record, that we cannot condone the actions of the respondent  that they *222 were not justified  and that they were not a reasonable exercise of his trust as executor. They were such that they justify and call for disciplinary action.
We are of the opinion that respondent should be suspended from the practice of law in this state for a period of sixty days. It is therefore ordered that his right and privilege to practice law in this state be suspended for sixty (60) days, beginning fifteen days after the issuance of the mandate of this court.
STRUCKMEYER, C.J., BERNSTEIN, V.C.J., and UDALL and LOCKWOOD, JJ., concurring.


953 F.2d 1380
Martin (Douglas Lee)v.Kaplan (Hon. Lawrence), Strassburger (Eugene B.), AlleghenyCounty Court of Common Pleas, Kelly (Hon. Robert),Rosenwasser (Marc), Rosenblum (Neil),Quinn (Patrick), Bernstein (Paul)
NO. 91-3593
United States Court of Appeals,Third Circuit.
Jan 16, 1992

1
Appeal From:  W.D.Pa.

2
AFFIRMED.


99 F.3d 1132
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Jeremiah Weldon SLOAN, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Reaon O'Neil MOULTRY, Defendant-Appellant.
Nos. 94-5924, 95-5558.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 13, 1996.Decided Oct. 29, 1996.

Jesse J. Waldon, Jr., JESSE J. WALDON, JR., P.A., Charlotte, North Carolina;  P. Mercer Cauley, Charlotte, North Carolina, for Appellants.  Mark T. Calloway, United States Attorney, Robert J. Higdon, Jr., Assistant United States Attorney, Charlotte, North Carolina, for Appellees.
Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.
OPINION
PER CURIAM:

1
Jeremiah Weldon Sloan and Reaon O'Neil Moultry were convicted by a jury of conspiracy to distribute cocaine and crack cocaine and to possess both with intent to distribute, 21 U.S.C.A. § 846 (West Supp.1996), as well as one count of aiding and abetting the possession of crack for distribution.  21 U.S.C.A. § 841 (West 1981 & Supp.1996).  Sloan also was convicted of three counts of using and carrying a firearm in a drug trafficking crime.  18 U.S.C.A. § 924(c) (West Supp.1996).  Sloan received a life sentence, a consecutive sentence of five years, and two consecutive twenty-year sentences.  Moultry was sentenced to a term of 324 months.  Both appeal their convictions and sentences.

2
First, Appellants contend that the government failed to prove one conspiracy as charged in the indictment because the evidence at trial showed multiple conspiracies instead.  A conspiracy conviction may be reversed on the ground that the evidence varied materially from the offense charged in the indictment by showing multiple conspiracies rather than a single conspiracy if actual prejudice to the defendant's substantial rights resulted.   United States v. Kennedy, 32 F.3d 876, 883 (4th Cir.1994) (citations omitted), cert. denied, --- U.S. ----, 63 U.S.L.W. 3563 (U.S. Jan. 23, 1995) (No. 94-6500).  To show actual prejudice, "an appellant must prove that 'there are so many defendants and so many separate conspiracies before the jury' that the jury was likely to transfer evidence from one conspiracy to a defendant involved in an unrelated conspiracy."   Id. (quoting  United States v. Caporale, 806 F.2d 1487, 1500 (11th Cir.1986), cert. denied, 482 U.S. 917 and 483 U.S. 1021 (1987)).

3
In this case, there was no likelihood that the evidence of other drug conspiracies would prejudice Sloan and Moultry.  The only evidence offered by members of the Cecil Jackson Gang and the Mustang Gang concerned their knowledge of and purchases of crack from Sloan's organization.  With only two defendants and straightforward evidence of only two related conspiracies, the case was not too complex for the jury to evaluate properly the evidence against Sloan and Moultry.  Therefore, this claim is without merit.

4
Next, Sloan and Moultry contest the enhancements they each received for possession of firearms under USSG § 2D1.1(b)(1).1  They contend that the evidence did not support the enhancement.  Because two witnesses testified that Moultry carried firearms while selling drugs, including "a .357" and a "9 millimeter," the district court did not clearly err in finding that the enhancement applied in his case.  In sentencing Sloan, the court did not base the enhancement on any of the firearms for which he was convicted under § 924(c), but on the presence of additional firearms in the course of the conspiracy.2  While the sentencing guidelines do not permit an enhancement under USSG § 2D1.1(b)(1) where a defendant has been convicted under § 924(c) for the same weapon, two circuits have held that a defendant convicted under § 924(c) may receive the enhancement for a coconspirator's weapon.   See United States v. Rodriguez, 65 F.3d 932, 933 (11th Cir.1995), cert. denied, # 6D6D 6D# U.S. ---, 64 U.S.L.W. 3640 (U.S. Mar. 25, 1996) (No. 95-7936);   United States v. Washington, 44 F.3d 1271, 1280-81 (5th Cir.), cert. denied, --- U.S. ----, 63 U.S.L.W. 3832 (U.S. May 22, 1995) (No. 94-8900).  As discussed above, there was evidence that Moultry carried a weapon while trafficking in drugs.  In addition, co-conspirator Rudolph Black testified at trial that he often carried a firearm, as did his brother, coconspirator Arthur McClinton.  The enhancement was thus justified.

5
The convictions and sentences are therefore affirmed.  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

1
 United States Sentencing Commission, Guidelines Manual (Nov.1994)

2
 When Sloan's apartment was searched in February 1992, a shotgun was found as well as an Intratech 9 mm pistol