247 F.3d 1191 | 11th Cir. | 2001
Lead Opinion
This case is an appeal by members of a drug conspiracy. Although the appellants raise a host of issues on appeal,
I.
Four appellants are before us in the instant appeal: Felix Gallego (“Felix”), Lazaro Gallego Jr. (“Lazaro”), Abel Rizo (“Abel”), and Evelio Rizo Sr. (“Rizo Sr.”).
Abel and Rizo Sr. were arrested on June 3 and July 10, 1996, respectively, pursuant to the first superseding indictment. On November 15, 1996, they entered pleas of not guilty to the charges in the second superseding indictment. Felix was arrested on October 29, 1996, and Lazaro was arrested on November 6, 1996. They also pleaded not guilty. The four appellants went to trial, along with two others.
II.
The appellants contend that their sentences violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). They did not raise timely constitutional objections on the Apprendi issues,
A.
Abel received concurrent sentences of 168 months’ imprisonment on Count One (conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. § 846) and Count Two (possession of cocaine, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2). He also received concurrent terms of five years’ supervised release on these counts.
The Supreme Court established in Apprendi, 120 S.Ct. at 2362-63, that “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Applying Apprendi’s constitutional principle to drug cases proceeding under 21 U.S.C. § 841, we have held that the quantity of drugs must be charged in the indictment and
We have held, however, that “there is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the statutory maximum set forth in § 841(b)(1)(C) for a cocaine offense without regard to drug quantity.” United States v. Gerrow, 232 F.3d 831, 834 (11th Cir.2000); cf. Candelario, 240 F.3d at 1306 (“[Tjhere is an error if the defendant’s sentence exceeds the maximum sentence allowed by a statute without regard to quantity.”). In the instant case, Abel’s sentences of 168 months’ imprisonment on Counts One and Two fall below the twenty year maximum prescribed by section 841(b)(1)(C). There is therefore no error under Apprendi.
B.
Count One of the indictment charged Felix with conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. § 846. The jury convicted Felix and the district court sentenced him, pursuant to 21 U.S.C. § 841(b)(1)(A), to a term of 324 months’ imprisonment and five years’ supervised release on Count One.
Felix fails, however, to satisfy the third prong of plain error review because he is unable to carry his burden of demonstrating that the error affected his substantial rights. As he admitted in an objection to the Pre-Sentence Investigation Report (“PSI”) and at the sentencing hearing, Felix personally possessed four kilograms of cocaine during a rip-off in October 1993.
C.
Lazaro was sentenced on Count One (conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. § 846) and Count Sixteen (possession of cocaine, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2) to concurrent life sentences.
Lazaro satisfies the first two prongs of plain error review. His sentences of life imprisonment exceed the maximum of twenty years’ imprisonment prescribed by 21 U.S.C. § 841(b)(1)(C), and the error is plain.
Lazaro fails to satisfy the third prong of plain error review-his substantial rights were not affected. Count Sixteen was based on a rip-off that occurred
Neither were Lazaro’s substantial rights affected by a sentence of life imprisonment on Count One (conspiracy). The jury’s conviction on Count Sixteen necessarily subsumes the conviction on Count One for Apprendi review purposes, for the possession which constituted Count Sixteen was a part of the conspiracy.
Because Lazaro fails to satisfy the third prong of plain error review, we need not visit the fourth prong.
D.
1.
Rizo Sr. was sentenced to a term of life imprisonment on Count One (conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. § 846). The court also im
Rizo Sr. satisfies the first two prongs of plain error review. His sentence of life imprisonment exceeds the maximum of twenty years’ imprisonment prescribed by 21 U.S.C. § 841(b)(1)(C). This error is plain.
Rizo Sr. fails, however, to satisfy the third prong of plain error review, for his substantial rights were not affected by the error. The indictment charged, as the first overt act in furtherance of the conspiracy, that Rizo Sr. drove a car “containing ten (10) packages of cocaine wrapped in duct tape” in Salem County, New Jersey on June 25, 1987. The ten packages each contained one kilogram of cocaine. Rizo Sr. pleaded guilty in New Jersey state court to possession of these ten kilograms of cocaine, which were confiscated in a traffic stop. Counsel for Rizo Sr. conceded at closing argument, “[The prosecutor] is right, there is no question but that [Rizo Sr.] had the ten kilograms of cocaine, he pled guilty to possessing the ten kilograms of cocaine.” Because these ten kilograms of cocaine from the New Jersey conviction constituted part of the conspiracy charged in Count One, the jury necessarily found more than five kilograms of cocaine in connection with Count One. 21 U.S.C. § 841(b)(1)(A), which authorizes a sentence of ten years to life imprisonment, requires a finding of at least five kilograms of cocaine. Because the juiy found that more than five kilograms of cocaine were involved in Count One, Rizo Sr.’s substantial rights were not affected by a sentence of life imprisonment.
2.
Rizo Sr. also asserts that Apprendi requires the jury to determine whether he was a leader or organizer for purposes of sentencing. Because we have held that Apprendi does not apply to relevant conduct under the Guidelines, United States v. Maldenaldo Sanchez, 242 F.3d 1294, - (11th Cir.2001), we hold that there was no Apprendi error in the district court’s failure to require the jury to determine whether Rizo Sr. was a leader or organizer.
III.
The appellants raise a number of other issues, all of which fail.
AFFIRMED.
. We grant Evelio Rizo Sr.'s Motion to Adopt Issues of Co-Appellants, filed August 16, 1999.
. Felix and Lazaro are brothers. Abel is the son of Rizo Sr.
. The October 9 indictment was a second superseding indictment. The first indictment was handed down on January 24, 1996, and a superseding indictment followed on May 31, 1996. None of the appellants was charged in the first indictment, and, of the appellants, only Abel and Rizo Sr. were charged in the first superseding indictment. We refer to the second superseding indictment throughout simply as "the indictment.” This second superseding indictment charged fifteen individuals in seventeen counts. It charged the appellants as follows:
Count One — Conspiracy to possess cocaine, with intent to distribute, from June 25, 1987 to March 1995, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, all in violation of 21 U.S.C. § 846 (Abel, Felix, Lazaro, and Rizo Sr.);
Count Two — Possession of cocaine, with intent to distribute, on June 29, 1992, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Abel);
Count Three — Obstruction or delay of commerce by robbery ("Hobbs Act robbery”) on June 29, 1992, in violation of 18 U.S.C. §§ 1951(a) and 2 (Abel);
Count Four — Using and carrying a firearm during the commission of a crime of violence and drug trafficking crime on June 29, 1992, in violation of 18 U.S.C. §§ 924(c) and 2 (Abel);
Count Five — Attempted Hobbs Act robbery on February 20, 1993, in violation of 18 U.S.C. §§ 1951(a) and 2 (Felix and Rizo Sr.);
*1195 Count Six — Using and carrying a firearm during the commission of a crime of violence and drug trafficking crime on February 20, 1993, in violation of 18 U.S.C. §§ 924(c) and 2 (Felix and Rizo Sr.);
Count Seven — Hobbs Act robbery in late 1992 or early 1993, in violation of 18 U.S.C. §§ 1951(a) and 2 (Lazaro);
Count Eight — Attempted Hobbs Act robbery on April 30, 1993, in violation of 18 U.S.C. §§ 1951(a) and 2 (Abel, Felix, Lazaro, and Rizo Sr.);
Count Nine — Attempted Hobbs Act robbery on November 24, 1993, in violation of 18 U.S.C. §§ 1951(a) and 2 (Abel and Rizo Sr.);
Count Ten — Using and carrying a firearm during the commission of a crime of violence and drug trafficking crime on November 24, 1993, in violation of 18 U.S.C. §§ 924(c) and 2 (Abel and Rizo Sr.);
Count Eleven — Possession of cocaine, with intent to distribute, in March 1994, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Rizo Sr.);
Count Fourteen — Hobbs Act robbery on November 9, 1994, in violation of 18 U.S.C. §§ 1951(a) and 2 (Rizo Sr.);
Count Sixteen — Possession of cocaine, with intent to distribute, on December 31, 1994, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Lazaro).
Because the other eleven individuals named in the indictment are not before us, we address neither those individuals nor any counts of the indictment charging only those individuals.
. Jerry Dean Crespo and Leonardo Cuellar went to trial with the appellants. Crespo was convicted of Counts One and Sixteen; Cuellar was convicted of Counts One, Five, Six, Eight, Nine, Ten, Fourteen, and Fifteen (attempted Hobbs Act robbery on November 25, 1994). Crespo and Cuellar initially took appeals with the appellants, but subsequently dropped their appeals.
Of the remaining nine members of the fifteen indicted conspirators, three entered guilty pleas before trial, two were arrested after the trial, and four (including Evelito) are fugitives.
. Rule 29 provides that the district court "shall order the entry of judgment of acquittal ... if the evidence is insufficient to sustain a conviction.” Fed.R.Crim.P. 29(a). The court had reserved decision on Rizo Sr.'s motion for judgment of acquittal until after the jury verdict, pursuant to Fed.R.Crim.P. 29(b).
. None of the four appellants raised a constitutional objection at or before sentencing based on the requirement that the jury must determine the quantity of drugs beyond a reasonable doubt. See generally United States v. Candelario, 240 F.3d 1300 (11th Cir.2001).
. Abel was sentenced at an offense level of 35 and a criminal history category of I. His sentences, when cumulated, mandated 468 months' imprisonment. In addition to the concurrent terms of 168 months' imprisonment for Counts One and Two, Abel received 60 months’ imprisonment on each of Counts Three, Eight, and Nine; 60 months’ imprisonment on Count Four; and 240 months' imprisonment on Count Ten. The sentences for Counts One, Two, Three, Eight, and Nine were to run concurrently; the sentences for Counts Four and Ten were to run consecutively to each other and consecutive to the concurrent sentences on the other counts. (Counts Four and Ten were firearm counts, which meant the sentences on those counts had to be imposed consecutively, pursuant to 18 U.S.C. § 924(c)(l)(D)(ii) and U.S.S.G. § 5G1.2.) Terms of three years' supervised release were imposed on each of Counts Three, Four, Eight, Nine, and Ten; all supervised release terms were to run concurrently.
. 21 U.S.C. § 841(b)(1)(C) reads, in pertinent part:
In the case of a controlled substance in schedule I or II except as provided in sub-paragraphs (A), (B), and (D), such person §hall be sentenced to a term of imprisonment of not more than 20 years .... [and if] any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years....
Cocaine is a schedule II drug. 21 U.S.C. § 812, Schedule II. 21 U.S.C. § 841(b)(1)(A) provides a penalty of ten years to life imprisonment for possession of at least 5 kilograms of cocaine. 21 U.S.C. § 841(b)(1)(B) provides a penalty of five to forty years' imprisonment for possession of at least 500 grams, but less than 5 kilograms, of cocaine.
. 21 U.S.C. § 841(b)(1)(C) requires a supervised release term of "at least 3 years in addition to such term of imprisonment.” Abel’s sentences of five years’ supervised release on Counts One and Two are not plain error. See Gerrow, 232 F.3d at 835 (holding that a term of more than three years' supervised release under 21 U.S.C. § 841(b)(1)(C) does not meet the "plain” requirement of plain error review, but declining to decide whether 18 U.S.C. § 3583 provides the maximum term of supervised release for a defendant sentenced under 21 U.S.C. § 841(b)(1)(C)); see also United States v. Pratt, 239 F.3d 640, 646-48 (4th Cir.2001) (holding that a sentence of five years' supervised release under 21 U.S.C. § 841(b)(1)(C) is not error at all, because section 841(b)(1)(C) provides for “at least 3 years” of supervised release and 18 U.S.C. § 3583 does not provide otherwise); United States v. Heckard, 238 F.3d 1222, 1236-37 (10th Cir.2001) (same); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000) (same). But see United States v. Meshack, 225 F.3d 556, 578 (5th Cir.2000) (holding that 18 U.S.C. § 3583 limits a sentence of supervised release imposed under 21 U.S.C. § 841(b)(1)(C) to a term of three years).
.Felix was also sentenced to 240 months' imprisonment on Counts Five and Eight and 60 months imprisonment on Count Six. The terms of imprisonment were to be served concurrently on all except Count Six, which was a consecutive sentence. (Count Six was a firearm count, which meant that the sentence on that count had to be imposed consecutively, pursuant to 18 U.S.C. § 924(c)(l)(D)(ii) and U.S.S.G. § 5G1.2.) This meant that Fe
.At trial, Jorge Gonzalez (a co-conspirator who had pleaded guilty) testified that Felix was in actual possession of four kilograms of cocaine during this rip-off. He further testified that an additional fifty kilograms of cocaine were obtained during the rip-off. Felix only conceded possession of four kilograms of cocaine, and we therefore rely upon that number. (Felix stated in his objections to the PSI and at sentencing that his base offense level should be calculated on the basis of four kilograms of cocaine. The defense arrived at this amount because it was the lowest quantity that Felix was "alleged to have personally possessed” (emphasis added).)
. 21 U.S.C. § 841(b)(1)(B) requires a supervised release term of “at least 4 years in addition to such term of imprisonment.” Felix’s sentence of five years’ supervised release on Count One is not plain error. See Geirow, 232 F.3d at 835.
. Lazaro was also sentenced on Counts Seven and Eight to concurrent terms of 240 months’ imprisonment; these sentences were to run concurrently with the life sentences on Counts One and Sixteen. Concurrent three year terms of supervised release were set as to Counts Seven and Eight. The district court sentenced Lazaro based on an offense level of 44 and a criminal histoiy category of III.
. This testimony came from Jorge Gonzalez. See supra note 11. Gonzalez testified that he was present during this rip-off and then testified as to the quantity involved. Additionally, Carlos Gustavo De La Teja (another co-conspirator who had pleaded guilty) testified for the prosecution that the amount was 325 kilograms, and that Lazaro received 25 kilograms as his share of the rip-off. He further testified that Lazaro and Jerry Dean Crespo (a co-defendant) sold him 14 kilograms that they had received from the rip-off.
. Lazaro did object to the attribution of 326 kilograms to him from the rip-off at issue, but he based his objection solely on the unreliability of the witnesses who testified as to drug quantity. He did not offer any contrary testimony on quantity. Rather, Lazaro only put on alibi testimony by four defense witnesses (including Lazaro himself). The alibi was that Lazaro was at a New Year's Eve party the entire evening (from 6:00 P.M. to 2:00 A.M.), which would have rendered it impossible for him to be involved in the rip-off.
. Count Sixteen was listed as overt act number 33 in Count One of the indictment. Further, Count One alleged that on December 31, 1994, Lazaro (and others) possessed 326 kilograms of cocaine in the robbery as part of the conspiracy. Count One also alleged, as overt act number 36, that Lazaro and Jerry Dean Crespo delivered approximately 13 kilograms of cocaine to Carlos Gustavo De La Teja. See supra note 14.
. Because we find that sentencing under section 841(b)(1)(A) was proper, we hold that Lazaro’s terms of five years’ supervised release are proper. See 21 U.S.C. § 841(b)(1)(A) (requiring that the court impose "at least 5 years” of supervised release when a defendant possesses five or more kilograms of cocaine).
. The district court also imposed sentences of 240 months' imprisonment on Counts Five, Eight, Nine, and Fourteen; all sentences were to run concurrently. Sentences of three years' supervised release were imposed on each of these other five counts; all supervised released terms were to run concurrently. Rizo Sr.'s offense level was 46 and his criminal history category was I.
. We would affirm Rizo Sr.'s sentence even if this ten kilogram quantity were not a part of the conspiracy. Although more than 150 kilograms of cocaine were attributed to Rizo Sr. at sentencing as part of the relevant conduct, none of the other counts for which he was convicted carried drug quantities as necessary components of the jury's verdict. Therefore, without the ten kilogram amount that we have deemed a necessary part of Count One, the district court could have properly sentenced Rizo Sr. to a maximum of only twenty years' imprisonment on Count One. However, this would not be grounds for reversal, notwithstanding the court's imposition of a life sentence, because the error would not have affected Rizo Sr.'s substantial rights. This is because, on remand, the district court would be obligated under the Sentencing Guidelines to sentence Rizo Sr. to a combined term of imprisonment that comports with his "total punishment.” U.S.S.G. § 5G1.2 ("Sentencing on Multiple Counts of Conviction”). ("Total punishment” is the "combined length of the sentences,” which is "determined by the adjusted combined offense level.” U.S.S.G. § 5G1.2, Commentary.) If the maximum sentence for Count One was twenty years, consistent with 21 U.S.C. § 841(b)(1)(C), then the district court would have to fashion Rizo Sr.’s sentences consecutively (rather than concurrently) until it could produce a "combined sentence equal to the total punishment.” U.S.S.G. § 5G1.2(d). Rizo Sr.’s offense level of 46 (and criminal history category of I) dictate mandatory life imprisonment, thereby requiring the district court to impose consecutive sentences sufficient to equal life imprisonment. Because consecutive sentences combining to equal life imprisonment are effectively the same as one sentence of life imprisonment (served with some lesser, concurrent sentences), Rizo Sr.'s substantial rights would not be affected if we affirmed the sentence on Count One. See United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir.2001) (holding that there was not plain error, notwithstanding Apprendi, in a sentence that exceeded the statutory maximum without regard to drug quantity due to a lack of "prejudice,” since the district court, on remand, would have to impose the same "total punishment” through imposing consecu
. Because we find that sentencing under section 841(b)(1)(A) was proper, Rizo Sr.'s term of five years’ supervised release was also proper. See supra note 17.
. We also reject Rizo Sr.’s contention that the district court improperly adjusted his offense level four levels for his role as a leader or organizer in the offense, pursuant to U.S.S.G. § 3Bl.l(a). Given the overwhelming evidence of Rizo Sr.’s coordination of the rip-off scheme, the district court's determination that he was a leader or organizer was not clear error. See United States v. Rodriguez De Varon, 175 F.3d 930, 938 (11th Cir.1999) (en banc).
. The appellants waived the issue of the district court's need to recuse itself by failing to raise it at the first available opportunity. See Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Florida, Inc., 140 F.3d 898, 913 (11th Cir.1998). Rizo Sr.'s contention that the district court failed to conduct an adequate McLain hearing (United States v. McLain, 823 F.2d 1457 (11th Cir.1987)) regarding his lawyer's continuing representation fails because Rizo Sr. validly waived his right to conflict-free counsel. The appellants’ objections based upon the sufficiency of the evidence fail because the evidence was not insufficient as a matter of law and the evidence supported the convictions. The appellants’ contentions that the district court abused its discretion in various evidentiary rulings at trial are meritless. Finally, there was no error in the Government’s closing argument, particularly since the allegedly prejudicial references were merely rebuttal to inflammatory defense comments during closing.
Concurrence Opinion
concurs in the result.