United States v. Beltran-Moreno
556 F.3d 913
9th Cir.
2009
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Docket
REINHARDT, Circuit Judge:

After pleading guilty to a multiple-count indictment charging, inter alia, two independent firearms counts under 18 U.S.C. § 924(c), Jose and Abraham Bel-tran-Moreno benefitted from the district court’s erroneous construction of that statute at sentencing. They should have quit while they were ahead. As the Supreme Court made clear fifteen years ago in Deal v. United States, 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), when the government charges more than one § 924(c) offense in a single indictment, each additional count is to be treated as a “second or subsequent conviction” for purposes of 18 U.S.C. § 924(c)(1)(C)© and therefore carries a mandatory minimum sentence of twenty-five years. Because § 924(c)(l)(D)(ii) requires that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed,” each independent § 924(e) count in the indictment imposes a consecutive sentence in addition to any other sentence imposed, either under § 924(c) or under any other counts for which the defendant has been convicted.

In this case, the defendants pled guilty to various drug offenses that, taken together, imposed a mandatory minimum sentence of ten years. 1 They also pled guilty to two § 924(c) charges, the first of which required a mandatory minimum sentence of five years and the second of which required an additional sentence of twenty-five years. Because the statute does not allow any of these sentences to run concurrently, the mandatory minimum sentence for both defendants was forty years in prison.

The district court, however, was not familiar with Deal. Accordingly, despite the government’s argument for a forty-year minimum sentence, the court held, quite understandably, that multiple § 924(c) counts in a single indictment do not trigger the “second or subsequent” provision. As a result, the court added only two five-year sentences — as opposed to a five-year sentence and a twenty-five-year sentence — to the ten-year minimum required by the drug offenses. This was error, the result of which was the calculation of a mandatory minimum sentence of twenty years, which was twenty years lower than that required by statute, a sentence that would seem quite reasonable, but for the Court’s decision in Deal.

Remarkably, the defendants’ good fortune did not stop here. Under the United States Sentencing Guidelines, each defendant’s offense conduct established an offense-level score of over forty-two points. Regardless of a defendant’s criminal history, the Guidelines recommend that someone convicted of so high an offense level be sentenced to no less than life in prison. See U.S.S.G. § 5A. However, as has been clear since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Sentencing Guidelines are now merely advisory. The Beltrans were fortunate enough to be sentenced by a dis trict judge who appears to have taken Booker’s mandate to heart. Taking into account the defendants’ characteristics, the nature of their crimes, and other relevant factors, the district judge exercised his discretion under 18 U.S.C. § 3553(a) and imposed a sentence of thirty-five years, which was well below the Guidelines recommendation of a life sentence.

In the end, the defendants did not just avoid life sentences. Because of the district court’s unawareness of Deal, they received sentences five years below the mandatory minimum. Such good fortune does not come often in our criminal justice system, especially in prosecutions under § 924(c), which frequently result in extremely harsh sentences. Cf. United States v. Hungerford, 465 F.3d 1113, 1119 (9th Cir.2006) (Reinhardt, J., concurring in the judgment) (criticizing a sentence of 159 years imposed pursuant to § 924(c) on “a 52 year-old mentally disturbed woman with no prior criminal record” who never touched a gun and believed herself to be actually innocent); United States v. Harris, 154 F.3d 1082, 1084 (9th Cir.1998) (“urg[ing] Congress to reconsider its scheme of mandatory consecutive minimum sentences”). As a result of the district court’s exercise of discretion and its separate statutory miscalculation, the Bel-trans dodged two bullets: the Guidelines’ recommended life sentence, and the mandatory minimum sentence required by § 924(c).

The Beltrans’ trial counsel had the good sense not to object to the district court’s sentence, which — given that it was lower than legally permitted — was certainly better than they could have possibly imagined. Their appellate counsel, however, have exhibited anything but good sense. For reasons beyond our understanding, the Beltrans appealed their sentences, and counsel argued that instead of imposing a mandatory minimum of twenty years, the district court should have imposed only a single five-year sentence under § 924(c) and therefore a total mandatory minimum of fifteen years for each of them. This argument is squarely foreclosed by decades-old circuit precedents. As we held in United States v. Smith, a defendant may be convicted and sentenced for multiple violations of § 924(c) so long as “each 924(c)(1) count [is] supported by a separate predicate offense.” 924 F.2d 889, 894 (9th Cir.1991) (citing United States v. Fontanilla, 849 F.2d 1257, 1259 (9th Cir.1988)). Whether or not one predicate offense is independent from another depends on whether the two offenses would be independent for double jeopardy purposes under the Blockburger test. See United States v. Castaneda, 9 F.3d 761, 765 (9th Cir.1993) (“[I]f the elements of the two predicate offenses are different, each may form the basis of a firearm count notwithstanding that both offenses stem from the same set of facts.”); cf. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In this case, the two § 924(c) counts respectively charged the defendants with possessing a firearm on March 12, 2005 in furtherance of their possession with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a), (b)(l)(A)(viii), and with possessing a firearm on June 22, 2005 in furtherance of their possession with intent to distribute cocaine, id. §§ 841(a), (b)(l)(A)(iii); both firearm counts also incorporated the drug conspiracy count to which the defendants pled guilty. As this court has squarely held, “charging a defendant with separate counts [of ‘possession with intent to distribute’] for different controlled substances is not multiplicitous and does not violate double jeopardy.” United States v. Vargas-Castillo, 329 F.3d 715, 720, 722 (9th Cir.2003). Accordingly, the government was entitled to charge the defendants with two separate § 924(c) counts, and, once they pled guilty to those counts, the district court was required to impose consecutive minimum sentences of five and twenty-five years on top of the ten-year mandatory minimum that attached to the drug charges. Counsel do not urge us to reconsider any of these precedents; rather, Jose’s counsel at least appears simply to be ignorant of the controlling law. 2

In short, if the Beltrans’ sentences were to be altered, there appears to be only one direction in which they could go, and that is up — by at least five years. Fortunately for the defendants, in a decision issued one year after they filed their notices of appeal, the Supreme Court held in a case with similar facts to this one that an appellate court cannot raise a defendant’s sentence if the government has not appealed, even to raise the sentence to the statutorily required minimum. See Greenlaw v. United States, — U.S. -, 128 S.Ct. 2559, 2562, 171 L.Ed.2d 399 (2008). Here, the government has for some reason — we would like to think out of a sense of justice or mercy — exercised its discretion not to seek on appeal the additional years of incarceration for which the statute provides. This decision alone has saved one of the Beltrans, Abraham, from a higher sentence, despite his counsel’s efforts to the contrary.

The other appeal, Jose’s, is more brazen, and accordingly holds more potential for self-immolation. Jose does not simply challenge the computation of the mandatory minimum sentence under § 924(c), but also challenges the district court’s exercise of its discretion in imposing a thirty-five year sentence instead of the recommended term of life in prison. Jose believes the thirty-five year sentence is unreasonably high as well as procedurally invalid and asks us to vacate it and remand for resen-tencing. Although the Supreme Court has observed that, were we to remand the matter, the district court would not be permitted to raise Jose’s mandatory minimum sentence sua sponte following the government’s failure to appeal, see Greenlaw, 128 S.Ct. at 2570 n. 8, it is hard to imagine that were we to vacate the sentence and instruct the district court to start its reasonableness analysis anew, as Jose asks, it would ignore the fact that its original sentence was statutorily impermissible. In other words, were Jose to prevail on his challenge to the substantive and procedural validity of his sentence, we cannot imagine that he would receive a more favorable sentence, although he might very well receive a higher one. Compare id., with id. at 2576 n. 2 (Alito, J., dissenting) (discussing Booker remands resulting in higher sentences).

The odd posture of Jose’s appeal brings to mind Oscar Wilde’s oft-noted adage: “When the gods wish to punish us, they answer our prayers.” Judges, however, are not gods, and, fortunately for Jose, there is no basis in the law to grant his prayer for “relief.” The district court’s sentence was procedurally sound under § 3553(c), as it adequately explained the rationale for its discretionary decision to depart downward from the recommended life sentence. Nor could the sentence possibly be unreasonably high as a substantive matter, as it was lower than legally permitted. Cf. United States v. Valente, 961 F.2d 133, 134 (9th Cir.1992) (“[District courts do not have discretion to depart downward from mandatory minimum sentences imposed by statute.”). Thus, Jose’s appeal fails on both grounds, thereby sparing him from the adverse consequences he likely would have suffered had he succeeded.

We hope that this case will serve as a strong warning for appellate counsel. Only by the unanticipated fortuity of Greenlaw, combined in Jose’s case with a failure to present persuasive arguments on the merits, have counsel here avoided a disposition that would have raised their clients’ terms of incarceration by at least five years and, at least in Jose’s case, likely far more. Moreover, at the time the Beltrans filed them appeal they did not know whether the government would file a cross-appeal, cf. Fed. R.App. P. 4(b)(l)(B)(ii); if it had, its success would have been inevitable and the imposition of higher sentences unavoidable.

“The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.” Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (emphasis added) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275-76, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). We remind counsel that the professional norms that establish the constitutional baseline for their effective performance indisputably include the duty to research the record and the relevant case law and to advise a client properly on the consequences of an appeal. While it is ultimately the client’s right to pursue an appeal, we seriously question the quality of counsel’s advice when an appeal with essentially zero potential benefit and a significant opportunity for harm is pursued in such a manner as this. We also remind counsel of their ethical obligations not to present frivolous arguments to this court. If, after counsel have researched the governing law and advised their clients of the lack of merit in their appeal and of the potentially severe adverse consequences they face, their clients still insist on going forward, counsel are best advised to file a brief with this court as set forth in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Fortunately, in this instance, counsel did no serious harm to their clients, and have escaped this appeal without the imposition of sanctions. However, in the future, we caution counsel to be more diligent, for their own sakes and, more important, for their clients’.

The sentences are AFFIRMED.

Notes

1

. We note that there appears to be an error in the formal judgments of conviction for both defendants. Compare Reporter’s Transcript of Proceedings (Status Conference/Change of Plea) at 35-37, United States v. Beltran-More-no, No. 05-00546-NVW (D.Ariz. March 8, 2007) (No. 427), and Superceding Indictment at 3, Beltran-Moreno, No. 05-00546-NVW (D. Ariz. June 8, 2005) (No. 43) (showing surplus-age crossed-out), with Judgment in a Criminal Case at 1, Beltran-Moreno, No. 05-00546-NVW (D.Ariz. July 7, 2007) (Nos. 392, 393) (formal judgments including surplusage). The error is of no significance for purposes of this appeal.

2

. Jose’s attorney argues, without mentioning the contrary holding in Smith, that "the statute does not ... require each firearm sentence to ... be consecutive to each [other] firearm sentence.” Abraham’s attorney presents a slightly different claim, albeit with the same result. He argues that the predicate offenses for Abraham’s two gun charges are not distinct because the factual basis adduced by the government during Abraham's plea colloquy establishes his guilt with respect to only a single drug conspiracy count and no more. While not legally frivolous, this argument is clearly belied by the very portion of the record Abraham’s counsel quotes in his brief. Abraham's counsel asserts that the factual basis for Abraham’s plea establishes that the first firearm count was predicated on the drug conspiracy count. The record demonstrates that the prosecutor established that Abraham's second gun count was predicated on "the crime of possession [with intent to distribute] methamphetamine.” Under our circuit law as it has existed for over ten years, "possession with intent to distribute and conspiracy [to possess with intent to distribute] are two separate offenses for section 924(c) purposes.” United States v. Lopez, 37 F.3d 565, 570 (9th Cir.1994), vacated on other grounds 516 U.S. 1022 (1995); see United States v. Andrews, 75 F.3d 552, 557-58 (9th Cir.1996) (reaffirming Lopez's § 924(c) sentencing analysis). Accordingly, the conclusion that Abraham is properly subject to two consecutive § 924(c) sentences is inescapable.