UNITED STATES of America, Plaintiff-Appellee, v. Orestes Luciano ABREU, Defendant-Appellant.
No. 89-4145
United States Court of Appeals, Tenth Circuit.
April 13, 1992.
962 F.2d 1425
Based on the record before us we cannot say that the obstruction enhancement did not affect the district court‘s choice of a 63-month sentence. Without the two-point adjustment, the appropriate sentencing range would have been 51 to 63 months. With the adjustment, the range was 63 to 78 months. The district court‘s statements indicate that it had considered the parties’ dispute over the obstruction enhancement in choosing a sentence. Its statements, however, do not clearly indicate that it would not have chosen a lower sentence within the 51- to 63-month range, such as the 57-month sentence urged by the prosecutor, had it found no obstruction of justice. Under Williams, remand is therefore required.
V
Finally,
CONCLUSION
The sentencing proceedings below violated the requirements of Herrera-Figueroa, and this error was not harmless. We therefore remand for a new presentence interview with a different probation officer, and for the preparation of a new presentence report based on that reinterview. The district court may not consider Rodriguez-Razo‘s conduct in the preliminary presentence interviews in determining whether an obstruction of justice adjustment is warranted.
VACATED and REMANDED.
Wayne T. Dance, Asst. U.S. Atty. (Dee Benson, U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.
David K. Smith, Salt Lake City, Utah, for defendant-appellant.
Before SEYMOUR and EBEL, Circuit Judges, and BROWN,* District Judge.
Appellant Orestes Luciano Abreu appeals his conviction and sentencing for various drug trafficking and weapons offenses. He raises eleven issues on appeal. We affirm the district court on all issues except for appellant‘s enhanced sentence for a second or subsequent conviction under
* Honorable Wesley E. Brown, Senior District Judge for the District of Kansas, sitting by designation.
Appellant Orestes Luciano Abreu1 was arrested in Salt Lake City along with his “nephew” and co-defendant, Juan Carlos Alvarez, who allegedly served as Abreu‘s interpreter and partner. The two had been the targets of a long-standing undercover narcotics investigation. Following the arrest, and under the authority of a search warrant, government officials entered defendants’ Salt Lake City apartment and uncovered approximately 641 grams of a white powdery substance in a kitchen cabinet. The substance was subsequently tested and found to contain cocaine. In addition to the white powder, officials seized a scale, grinder, and plastic bags from under the kitchen sink, along with a triple beam balance scale commonly used by narcotics traffickers to weigh their drugs. A search of Abreu‘s bedroom uncovered a semi-automatic rifle, a .38 caliber Colt revolver containing three bullets, and ammunition for the rifle.
Abreu eventually was indicted for violations of
I. Does Appellant‘s Conviction Under
Appellant maintains that the mandatory minimum punishment prescribed by
Since the filing of this appeal, the Supreme Court handed down its opinion in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), which upheld a mandatory life imprisonment sentence without possibility of parole for conviction of possession of more than 650 grams of cocaine. Although the Court was split in its reasoning, it is clear from the various opinions generated in that case that mandatory sentences are permissible for non-capital punishment. Thus, Harmelin discredits appellant‘s argument that his mandatory minimum sentence is unconstitutional because it deprives him of “individualized” sentencing.
Turning to appellant‘s proportionality argument, we likewise find no Eighth Amendment problem. Although a majority of the Court in Harmelin held that the constitution does impose a proportionality requirement on non-capital sentences,2 con-
In the case at hand, appellant was convicted for possession of 641 grams of cocaine. Although appellant contends that the mixture seized was of low concentration and virtually “unmarketable,”
II. Was There Sufficient Evidence to Support a Finding of Possession Under
Appellant contends that there was insufficient evidence to support a finding of cocaine possession—one of the elements of a
In this case, appellant was indicted and subsequently convicted of
knowingly and intentionally ... possess[ing] with intent to distribute in excess of 1/2 kilogram of a mixture containing cocaine, a Schedule II narcotic drug controlled substance, all in violation of Section 841(a)(1) of Title 21, United States Code, and Section 2 of Title 18, United States Code, with penalties as provided in Title 21, United States Code, Section 841(b)(1)(B).
R.Vol. I, Doc. 90 at 3 (emphasis added). According to
Here, there was sufficient evidence for the jury to conclude that appellant aided and abetted Alvarez in the commission of the
III. Was There Sufficient Evidence To Support a Conviction for Conspiracy?
Appellant maintains that the prosecution must show, “by a preponderance of the evidence, independent of the co-conspirator‘s statement, that a conspiracy existed, and that the co-conspirator and the defendant were members of the conspiracy.” Appellant‘s Reply Brief at 1 (emphasis in original). According to appellant, the government relied entirely on the statements of Alvarez—the alleged co-conspirator—without offering any independent proof of the conspiracy. Thus, appellant concludes that Alvarez’ statements should have been excluded and the conviction overturned.
We reject appellant‘s argument. The cases cited by appellant—for example, United States v. Silverman, 861 F.2d 571, 576-80 (9th Cir. 1988), and United States v. Paris, 812 F.2d 471, 475-76 (9th Cir. 1987)—involved the admission of a co-conspirator‘s out-of-court statements. In both Silverman and Paris, the Ninth Circuit merely stated that a co-conspirator‘s out-of-court statements, standing alone, are insufficient to establish that defendant had knowledge of and participated in a conspiracy. In this case, however, Alvarez testified directly and extensively at appellant‘s trial as a government witness. Thus, he was at all times available for cross-examination by appellant.
Moreover, to the extent that the government did make use of some hearsay evidence—Captain Stuart Smith testified about several telephone conversations he and a government informant had with Alvarez—appellant at no time objected to the evidence on hearsay grounds. This being so, we may not reverse the district court unless the admission of such evidence was plain error. See
Finally, after reviewing the record, we find that there was indeed independent evidence to support appellant‘s conspiracy conviction. For example, we refer to evidence of an intercepted mailing between Harold Jackson, a known drug purchaser, and appellant containing $14,000 in cash. R.Vol. VI at 8-12. Although appellant offered an explanation for this evidence, we cannot say that it was unreasonable for the jury to conclude that appellant was a conspirator in the effort to traffic drugs between Florida and Salt Lake City.
IV. Are Conspiracy to Distribute Cocaine (21 U.S.C. § 846 ) and Possession of Cocaine with Intent to Distribute (21 U.S.C. § 841 ) “Drug Trafficking Crimes” as Contemplated by 18 U.S.C. § 924(c) ?
According to
According to
V. Was There Sufficient Evidence to Support Appellant‘s Conviction for “Use” of a Firearm During a Drug Trafficking Crime?
Appellant next contends that there was no evidence to suggest that the firearms seized from his apartment were “used” or “carried” during or in relation to the alleged drug trafficking crimes, as required under
As noted above, appellate review of this issue requires the court to consider, in the light most favorable to the prosecution, all the evidence presented at trial and any reasonable inferences drawn therefrom. United States v. Frank, 901 F.2d 846, 848 (10th Cir. 1990). Based on our thorough review of the record, we think there was sufficient evidence to support the convictions.
The Tenth Circuit, like most other circuits, has recognized that
a defendant can “use” a firearm within the meaning of § 924(c)(1) without firing, brandishing, or displaying it.... [T]he “uses” element of § 924(c)(1) is met when the defendant has “ready access” to the firearm and the firearm “was an integral part of his criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed.”
McKinnell, 888 F.2d at 674-75 (emphasis added) (citations omitted). In this case, the firearms at issue were found in appellant‘s bedroom, in the same apartment where over half a kilogram of cocaine mixture
In United States v. Martinez, 912 F.2d 419, 420 (10th Cir. 1990), this court upheld a
In this case, the presence of the weapons at the scene was bolstered by testimony that appellant and his “partner” had been previously robbed of their cocaine. That, plus the fact that the weapons were displayed to at least one cocaine customer, supports the inference that the guns were an integral part of appellant‘s criminal undertaking, used to protect both money and drugs. Although there was testimony presented at trial for the proposition that the guns were obtained from drug purchasers merely as collateral for future payments, we cannot say that it was unreasonable for a jury to infer that appellant used the weapons to facilitate his drug trade. This is especially true in light of the fact that appellant retained possession of the weapons for at least three months and was carrying another weapon at the time of his arrest. Appellant‘s insistence that there was no evidence presented at trial as to who controlled the guns—both Mr. Alvarez and appellant lived in the same apartment—is unpersuasive. Fingerprint evidence established that appellant handled at least two of the ammunition clips for the Mini-14 rifle. In addition, Mr. Alvarez’ testimony gave the jury sufficient grounds on which to base their conclusion that appellant did in fact control the weapons.
We therefore find that it was not unreasonable for the jury to conclude, as it did, that appellant used the weapons in the commission of a drug trafficking offense.
VI. Was Appellant Improperly Sentenced on Multiple Convictions When They All Related to a Single Criminal Episode?
Appellant was sentenced on four separate counts: one count for possession with intent to distribute cocaine and aiding and abetting therein; one count for conspiracy to possess cocaine within intent to distribute; and two counts for use of a firearm during a drug trafficking crime. He now maintains that it was error to charge and sentence him separately when all counts arose out of the same criminal episode. The government counters that possession with intent to distribute and conspiracy to distribute cocaine are separate crimes, each requiring an element the other does not. The government further argues that the
In United States v. Henning, 906 F.2d 1392, 1399 (10th Cir. 1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991), we held that “where a defendant has been convicted of a single drug trafficking offense and more than one firearm was involved, a single violation of § 924(c)(1) occurs and multiple consecutive sentences may not be stacked to account for each firearm seized.” Obviously the district court was mindful of Henning when it sentenced appellant on just two of the four
In Chalan, defendant was convicted of felony murder while committing a robbery. He was also convicted of robbery and two counts of
Like the defendant in Chalan, the appellant here asserts that the crimes underlying his two
[a]s a general rule, a substantive charge, and conspiracy charge based on the substantive charge, pass muster under the Blockburger test and retain their separateness. The reason for this is because a requirement for a conspiracy conviction is proof of an agreement which is not necessary to prove an underlying substantive count. And, conviction on the substantive count will require the consummation of the crime, which, of course, is not essential for completing the crime of conspiracy.
The fact that appellant‘s possession conviction was based on the aiding and abetting statute does not alter this calculus. Several circuits have held that conspiracy to commit a crime with another is a separate and distinct offense from that of aiding and abetting and involves the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting. United States v. Goff, 847 F.2d 149, 175 (5th Cir. 1988) (“It is well established that conspiracy to commit a crime and the crime itself are separate punishable offenses. It is also well established that conspiracy and aiding and abetting are separate punishable offenses.“) (citations omitted), cert. denied, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 341 (1988); United States v. Peterson, 524 F.2d 167, 174 (4th Cir. 1975), cert. denied, 424 U.S. 925, 96 S.Ct. 1136, 47 L.Ed.2d 334 cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976); United States v. Cowart, 595 F.2d 1023, 1029-30 (5th Cir. 1979); United States v. Krogstad, 576 F.2d 22, 29 (3rd Cir. 1978); United States v. Townes, 512 F.2d 1057, 1058 (6th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975). The Tenth Circuit reached this very result in United States v. Jackson, 482 F.2d 1167, 1176 (10th Cir. 1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111 (1974):
The law is well settled that commission of a substantive offense and a conspiracy to commit it are separate crimes. The substantive offense of illegally importing heroin into the United States requires no more than one person for its commission. Similarly, aiding and abetting does not require an agreement.... The essence of a conspiracy charge is an agreement to commit an offense against the United States. Whether [defendants] were convicted as principals or for aiding and abetting, it is clear their conviction does not rest on the agreement. Thus the offenses in Count One [illegal importation of heroin or aiding and abetting therein] require proof not essential to the conspiracy conviction. [citations omitted]
Based on these holdings, we conclude that the conspiracy and possession charges were separate offenses, and therefore separate “drug trafficking crimes” within the meaning of
VII. Does Appellant‘s Sentence Violate the Eighth Amendment?
Appellant maintains that the vast disparity between his sentence and that of his co-defendant, Mr. Alvarez, constituted an Eighth Amendment violation. Appellant received a sentence of 380 months imprisonment;5 Alvarez received only 60
As we noted in United States v. Sardin, 921 F.2d 1064, 1067 (10th Cir. 1990),
The sentencing guidelines incorporate the principles of equality and proportionality. Their purpose is to narrow the “disparity in sentences imposed ... for similar criminal conduct by similar offenders.” Guidelines Ch. 1, Pt. A.3. The guidelines mandate the sentencing court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
18 U.S.C. § 3553(a)(6) . We have specifically recognized and endorsed this principle. United States v. Jackson, 921 F.2d 985, 987-89 (10th Cir. 1990) (en banc); see also United States v. White, 893 F.2d 276, 278 (10th Cir. 1990)....
However, “[w]hile similar offenders engaged in similar conduct should be sentenced equivalently, disparate sentences are allowed where the disparity is explicable by the facts on the record.” United States v. Goddard, 929 F.2d 546, 550 (10th Cir. 1991) (emphasis added) (citations omitted). In this case, appellant has failed to designate a record which would enable us to evaluate the appropriateness of his sentence. Specifically, we are unable to review the presentence report or any testimony made at the sentencing hearing. Moreover, we have virtually no information regarding the sentencing of Mr. Alvarez; we do not know the full charges contained in his indictment nor his criminal history nor the sentencing court‘s assessment of his cooperation and/or acceptance of responsibility.6 That being so, we cannot say that appellant‘s sentence was unjustified. See United States v. Jimenez, 928 F.2d 356, 364 (10th Cir.), cert. denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991). Given appellant‘s failure to specify the source of the disparity and the details of the record, we affirm the sentence imposed by the district court.
VIII. Did the Trial Court Properly Impose an Enhanced Ten Year Sentence for One of Appellant‘s Convictions Under 18 U.S.C. § 924(c) as a “Second or Subsequent Conviction“?
Appellant contends that the district court erred in imposing an enhanced ten-year sentence for appellant‘s gun conviction on Count IV pursuant to the second sentence of section 924(c)(1). We agree.
Our en banc decision in this case, handed down concurrently with this panel decision, holds that “a defendant may not receive an enhanced sentence under section 924(c) for a second or subsequent conviction unless the offense underlying this conviction took place after a judgment of conviction had been entered on the prior offense.” United States v. Abreu, 962 F.2d 1447 (10th Cir. 1992) (en banc). Because that was not the case here, we concluded that “Abreu ... [was] improperly given [an] enhanced sentence [ ] for [a] sentence or subsequent conviction [ ] under section 924(c).” Id. We therefore reversed appellant‘s enhanced sentence of ten years under Count IV and remanded for resentencing. On resentencing, the court should impose only a five-year sentence on Count IV as is provided in the first sentence of section 924(c)(1).
IX. Should the Trial Court Have Suppressed Evidence of a 9 MM Handgun Found in Defendant‘s Automobile at the Time of His Arrest?
Appellant challenges the admission of evidence showing that he was in possession of a loaded pistol when arrested. The
Although appellant contends that there was “never any showing that the[re] was any connection between the 9 mm. handgun and the drug trafficking charges,” Appellant‘s Brief at 45, we believe that the handgun was indeed relevant to defendant‘s “possession, knowledge and ownership of the firearms found in the bedroom in the apartment.” R.Vol. II at 70. Faced with almost identical circumstances in United States v. Sullivan, 919 F.2d 1403 (10th Cir. 1990), this court agreed with several other circuits that “firearms are generally admissible in a drug conspiracy trial because they are ‘tools of the trade’ for those engaged in illegal drug activity.” Id. at 1420 (citations omitted). Although we noted that such a broad proposition must not “substitute for a more detailed case-by-case analysis under Federal Rules of Evidence 401 and 403,” id., we were persuaded that the admission of the weapons was proper. We reach the same conclusion here.
In this case, we think the handgun may indeed have been relevant to determining whether the guns seized in the bedroom were merely collateral or protection for appellant‘s drug trade. Although we agree with appellant that such evidence may have carried the potential for jury prejudice, we cannot say that it was error for the district court to conclude that “the probative value of the evidence outweighs the prejudicial effect_.” R.Vol. II at 71. Moreover, we note that the prejudicial effect of such evidence might have been further minimized by a jury instruction limiting the use of the handgun. However, appellant never requested such an instruction, either at the time the evidence was admitted or at the conclusion of the case. He has accordingly waived this aspect of the issue. Since we cannot say that it was an abuse of discretion for the trial court to allow evidence and testimony of the 9 mm. handgun, we affirm the trial court.
X. Should the Trial Court Have Suppressed Evidence and Testimony Concerning Appellant‘s Subsequent Mississippi Convictions?
Appellant maintains that the trial court erred by allowing testimony regarding appellant‘s subsequent possession of a controlled substance in Mississippi. He asserts that the effect of such evidence was to prejudice and to inflame the jury against him. We once again review the district court‘s admission of evidence under the abuse of discretion standard.
Rule 404(b) of the Federal Rules of Evidence allows for the admission of evidence of “other crimes, wrongs, or acts” for the purpose of establishing motive, intent, preparation, plan, or identity. Rule 404(b) does not specifically exclude acts subsequent to the incident or incidents giving rise to the charges in the indictment. United States v. Hogue, 827 F.2d 660, 663 (10th Cir. 1987). In fact, we have allowed evidence of subsequent crimes where it is similar to the crime charged or possesses some “signature quality.” United States v. Gutierrez, 696 F.2d 753, 755 (10th Cir. 1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76 L.Ed.2d 813, cert. denied, 461 U.S. 910, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983).
XI. Did the Trial Court Properly Sentence Appellant Under the Sentencing Guidelines?
Appellant finally charges that the district court misapplied the federal sentencing guidelines in imposing his sentence. Specifically, appellant contends that the district court erred in sentencing him for bringing into Utah “in excess of five kilograms of cocaine to sell or distribute.” Appellant‘s Brief at 53. He further contends that he was wrongly sentenced as an “organizer and leader.” Id. at 54. Lastly, appellant asserts that the district court wrongly applied the sentencing guidelines criminal history calculus. We find that the sentence imposed by the district court was appropriate.
In the first place, we note that a sentencing court may look beyond the charges alleged in the indictment in imposing a sentencing. United States v. Smith, 929 F.2d 1453, 1459 (10th Cir.) (“[Q]uantities and types of drugs not specified in the charge with which defendant stands convicted are to be included in determining the base offense level ‘if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.‘“) (citations omitted), cert. denied, 502 U.S. 847, 112 S.Ct. 146, 116 L.Ed.2d 112 (1991). In this case, the evidence presented at trial adequately supported the trial court‘s finding that appellant had brought more than five kilograms of cocaine into Utah as part of the overall conspiracy. See R.Vol. IV at 68, Testimony of Alvarez. The evidence of appellant‘s role as an organizer and leader was also sufficiently established at trial. See R.Vol. IV at 52-56; R.Vol. III at 125-26. Appellant‘s final assertion, that it was error for the court to consider his Mississippi conviction in determining his criminal history level since that conviction occurred after the commission of Utah crimes, is incorrect as a matter of law. In fact, the Tenth Circuit considered this very issue in United States v. Fortenbury, 917 F.2d 477, 479 (10th Cir. 1990), and concluded that subsequent criminal conduct occurring before sentencing for an earlier offense is a permissible basis for departing upward by criminal history category. Moreover, because appellant failed to designate the record on sentencing, we cannot evaluate the district court‘s consideration of criminal history in any further detail. We therefore affirm the district court‘s sentence as to these particular issues.
CONCLUSION
For the reasons given in this panel decision and in the en banc decision in this case issued concurrently herewith, we AFFIRM the district court in all particulars except as to appellant‘s consecutive sentence of 120 months on Count IV. As to that particular sentence, we REVERSE and REMAND for resentencing in accordance with our decisions.
For the reasons set forth in the dissent in the en banc decision in United States v. Abreu and United States v. Thornbrugh, 962 F.2d 1447 (10th Cir. 1992), I must respectfully dissent.