Case Information
*1 Before: CHAGARES, VANASKIE, and FUENTES, Circuit Judges (Filed: October 23, 2017) ______________
OPINION [*]
______________
VANASKIE, Circuit Judge.
I.
Fоllowing a jury trial, Appellant Freddie Lopez-Esmurria was convicted of
distribution of cocaine and heroin and related conspiracies. At his initial sentencing, the
District Court found the quantity of drugs attributable to Lopez-Esmurria to be higher
than that found by the jury on a special verdict fоrm and sentenced him accordingly.
Lopez-Esmurria appealed that sentence and we held that, although the District Court
possessed the authority to find a drug quantity greater than that found by the jury, the
drug quantity that the Court had attributed to Lopez-Esmurria was not supported by the
record.
See United States v. Lopez-Esmurria
,
II.
In January of 2014 Lopez-Esmurria was convicted of cocaine and heroin distribution, in violation of 21 U.S.C. § 841(a)(l), and related conspiracies, in violation of 21 U.S.C. § 846. In completing the special verdict form, the jury reported that the Government had proven beyond a reаsonable doubt that Lopez-Esmurria was guilty of *3 trafficking less than 500g of cocaine and less than 100g of heroin. At sentencing, however, the District Court found that Lopez-Esmurria was responsible for 9 kilograms of cocaine and 320 grams of heroin. According to Lopez-Esmurria, The effect оf these findings was to raise the imprisonment range under the United States Sentencing Guidelines from 36-47 months to 210-262 months. The District Court imposed a prison term оf 210 months, and Lopez-Esmurria appealed.
On appeal, we held that drug quantity was not an element of the crimes with which
Lopez-Esmurria had been charged, and the District Court was thus not bound by the
jury’s special verdict form, but could instead determine the amount of drugs attributable
to Loрez-Esmurria.
See Lopez-Esmurria I
,
On remand, the District Court made detailed written findings of specific amounts in the form of cocaine, crack cocaine, and heroin attributable to Lopez-Esmurria. Specifically, the District Court found that for sentencing purposes, Lopez-Esmurria was responsible for 564.12 grams of cocaine, .37 grams of crack cocaine, and .36 grams оf heroin. The District Court directed the Probation Office “to calculate the applicable offense level in accordance with [these] findings.” (App. 82.) As a result of the District Court’s findings, the Guidelines imprisonment range for Lopez-Esmurria was reset at 87 to 108 months. The District Court resentenced Lopez-Esmurria to 96 months’ *4 imprisonment. Lopez-Esmurria now appeals his resentencing as a violation of his Sixth Amendment right.
III.
The District Court hаd jurisdiction over this matter pursuant to 18 U.S.C. § 3231.
This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). This Court reviews the District Court’s interpretation of thе Sentencing
Guidelines de novo.
United States v. Kluger
,
IV.
On appeal, Lopez-Esmurria challenges the authority of the District Court to find that he is responsible for 564.12 grams of coсaine because the jury found that he was responsible for less than 500 grams of cocaine. [1] We rejected this very same argument in Lopez-Esmurria I. What we stated then remains applicable now:
We reiterate now that drug quantities are sentencing factors, not elements of the crime. ‘Broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment.’ Lоpez-Esmurria has no claim under Apprendi or Alleyne .
Lopez-Esmurria I
,
Lopez-Esmurria argues that in our first opinion we “did not make a determination
as to whether the affirmative findings оf drug quantity made by the jury on the Special
*5
Verdict Form precluded the District Court from making a contradictory finding during
sentencing.” (Appellant’s Brief аt 12.) He urges that we follow
United States v.
Pimentel-Lopez
,
Assuming that we can consider this argument notwithstanding our holding in
Lopez-Esmurria I
, we find it unpersuasive for several reasons. First, the Ninth Circuit’s
ruling conflicts with our сase law, which holds that “[a] district court may, consistent
with the Fifth and Sixth Amendments, engage in additional factfinding, using a
preponderance-of-the-evidence standard, to select an appropriate sentence up to the
statutory maximum based on applicatiоn of the Guidelines.”
United States v. Smith
, 751
F.3d 107, 117 (3d Cir. 2014). Second, a jury’s finding of drug quantity under a standard
of proof of beyond a reasonable doubt standard is not inconsistent with a judge finding а
greater drug quantity applying the applicable preponderance of the evidence standard.
See United States v. Grier
, 475 f.3d 556, 568 (3d Cir. 2007) (en banc). Third, the Ninth
Circuit’s decision is inconsistent with rulings from our sister circuits that have addressed
the question of whether a sentencing court can find a drug quantity greater than a jury
finding.
See, e.g., United States v. Webb
, 545 f.3d 673. 676-77 (8th Cir. 2008);
United
States v. Magallanez
,
V.
Based on the foregoing we will affirm the District Court’s September 27, 2016 judgment of sentence.
Notes
[*] This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
[1] Lopez-Esmurria does not challenge the District Court’s drug quantity findings at the resеntencing proceeding, and we thus accept them as accurate.
[2] Specifically, the amount of cocaine found by thе District Judge (564.12 grams) was the equivalent of 112.82 kilograms of marijuana under the Drug Equivalency Tables, and the .36 grams of heroin equaled .36 kilograms of marijuana, and the .37 grams of cocaine base equaled 1.32 kilograms of marijuana.
[3] Under the “Drug Equivalency Tables, 1 gram of cocaine equals 200 grams of marijuana. U.S.S.G. § 2D1.1, appl. n.8(D).