44 F3d 836 United States v. Simpson

44 F.3d 836

UNITED STATES of America, Plaintiff-Appellee,
v.
Donald Lake SIMPSON, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Rodolfo MOLINA, Jr., Defendant-Appellant.

Nos. 92-10155, 92-10158.

United States Court of Appeals,
Ninth Circuit.

Jan. 19, 1995.

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1

On Remand from the United States Supreme Court.

2

Before: REINHARDT and LEAVY, Circuit Judges, and MERHIGE*, Senior District Judge.

ORDER

3

Donald Lake Simpson (Simpson) and Rodolfo Molina, Jr. (Molina) appealed their convictions and sentences. We affirmed the district court on all but one issue, the necessity for proof of an overt act under 21 U.S.C. Sec. 846. United States v. Simpson, 10 F.3d 645 (9th Cir.1993).

4

The Supreme Court reversed our decision in United States v. Shabani, 993 F.2d 1419 (9th Cir.1993), holding that the Ninth Circuit's minority view on the requirement for proof of an overt act contradicts the "plain language of the statute and settled interpretive principles." United States v. Shabani, 513 U.S. ----, ----, 115 S.Ct. 382, 386, 130 L.Ed.2d 225 (1994). The Supreme Court also reversed our decision in the cases of defendants Simpson and Molina, ordering us to consider our judgment in light of its opinion in Shabani. United States v. Simpson and Molina, --- U.S. ----, 115 S.Ct. 477, 130 L.Ed.2d 391 (1994).

5

Shabani aligns the Ninth Circuit's position with that of the other circuits, requiring no proof of an overt act under 21 U.S.C. Sec. 846. Thus, we vacate our judgment in United States v. Simpson, 10 F.3d 645 (9th Cir.1993). Accordingly, Simpson's and Molina's conspiracy convictions are AFFIRMED.

*

The Honorable Robert R. Merhige, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation