United States v. Gomez
2013 U.S. App. LEXIS 9090
| 1st Cir. | 2013Background
- Gomez was convicted by jury of conspiracy to distribute cocaine and faced a 10-year mandatory minimum under § 841(b)(1)(A)(ii) based on the court's finding of eight kilograms involved.
- Gomez challenges the conviction on suppression grounds, arguing lack of probable cause for the arrest and search conducted after a December 11, 2008 incident.
- The government's investigation included August–September 2008 Florida meetings with a CI and September–December 2008 Massachusetts interactions; the August transaction involved seven kilograms discussed and seen by agents.
- At a December 11, 2008 meeting at 620 Essex Street, Lawrence, Pena delivered a kilogram of cocaine to Pena, with Gomez later arrested in the Dodge; a phone and wallet belonging to Gomez were seized.
- The district court admitted evidence of the Florida/Lowell meetings; Gomez moved to exclude as outside the conspiracy but the court overruled; the jury found Gomez responsible for at least 500 grams of cocaine.
- At sentencing, the court found eight kilograms attributable to Gomez and imposed a 120-month mandatory minimum; Gomez pursues Apprendi-based challenges and notice issues regarding the § 841(b)(1) provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Florida/Lowell evidence was within scope of the conspiracy | Gomez argues variance; evidence outside charged scope. | Gomez contends evidence is not part of conspiracy. | No variance; evidence properly admitted as within conspiracy scope. |
| Probable cause to arrest/search Gomez after Pena transaction | Gomez claims lack of probable cause to arrest him as mere proximity. | Gomez argues strong likelihood of participation; proximity insufficient. | Probable cause established; Gomez properly arrested based on joint conduct and leaving the scene. |
| Whether Apprendi governs the sentence for quantity findings | Apprendi requires jury finding for higher minimums; Harris/Goodine cited as controlling. | Quantity is a sentencing factor; district court could apply § 841(b)(1)(A) after finding 8 kg. | Sentence upheld; quantity findings support the ten-year minimum; harmless error analysis applies. |
| Notice issue: use of § 841(b)(1)(A) vs § 841(b)(1)(B) | Indictment limited to § 841(b)(1)(B)(ii); using § 841(b)(1)(A) violates notice. | Switch does not violate notice; permissible where conspiracy charge stands. | No reversible error; switch to § 841(b)(1)(A) permissible and not prejudicial. |
Key Cases Cited
- United States v. Goodine, 326 F.3d 26 (1st Cir. 2003) (drug quantity is a sentencing factor determined by a preponderance)
- United States v. Eirby, 262 F.3d 31 (1st Cir. 2001) (notice/discretion in choosing related penalty provisions; switch not reversible error)
- United States v. Camacho, 661 F.3d 718 (1st Cir. 2011) (probable cause review under totality-of-circumstances)
- United States v. Soto-Beníquez, 356 F.3d 1 (1st Cir. 2004) (evidence sufficiency and safe-guarding percentage thresholds in sentencing)
- United States v. Dellosantos, 649 F.3d 109 (1st Cir. 2011) (conspiracy scope and interdependence of acts)
- United States v. Perez-Ruiz, 353 F.3d 1 (1st Cir. 2003) (framework for evaluating variance and admission of related conduct)