UNITED STATES v. SIMPSON (1995)

ORDER

The order filed on January 19, 1995, 44 F.3d 836, is amended as follows:  on slip opinion page 791, line 5, 44 F.3d at 836 please insert the following text:  [Editor's note:  amendments incorporated for purposes of publication].

With this amendment, Simpson's and Molina's petitions for rehearing are denied.

AMENDED ORDER

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. § 846.   United States v. Simpson, 10 F.3d 645 (9th Cir.1993).   We have resolved all other issues in this appeal by a memorandum disposition filed this date.

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. 10, ----, 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, 513 U.S. 983, 115 S.Ct. 477, 130 L.Ed.2d 391 (1994).

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. § 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.