UNITED STATES OF AMERICA, Appellee, v. GEOVANNY RAMÍREZ-NEGRÓN, a/k/a Lambe; OBED ALVARADO-MERCED, Defendants, Appellants.
Nos. 10-1524, 11-1388
United States Court of Appeals For the First Circuit
May 9, 2014
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before Lynch, Chief Judge, Torruella and Selya, Circuit Judges.
Rafael F. Castro Lang for appellant Geovanny Ramírez-Negrón.
José Luis Novas Debien for appellant Obed Alvarado-Merced.
Myriam Y. Fernández González, Assistant United States Attorney, with whom Thomas F. Klumper, Assistant United States Attorney, Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
On appeal, Ramírez and Alvarado originally challenged the sufficiency of the evidence to support the district court‘s factfinding with respect to Guidelines considerations -- namely drug quantity and, for Ramírez only, leadership role. Ramírez argued that the factfinding as to drug quantity in his case
After we heard oral argument, the Supreme Court issued its decision in Alleyne v. United States, 133 S. Ct. 2151 (2013). The parties submitted supplemental briefing on the impact, if any, of Alleyne, and both defendants argued that their sentences must be reversed because they were imposed by virtue of judicial factfinding by a preponderance of the evidence as to drug quantities. The defendants admit they did not raise this issue at trial or in their opening briefs on appeal.
We affirm. We hold that there was no Alleyne error at all because all elements of the defendants’ crimes of conviction under
I.
For purposes of these sentencing appeals, we consider the facts from the change-of-plea colloquies, the presentence investigation reports (PSRs), and the transcripts of the sentencing hearings. See United States v. Ihenacho, 716 F.3d 266, 269 (1st Cir. 2013).
The defendants belonged to a large drug trafficking ring that operated in Ponce and Juana Díaz, Puerto Rico, from at least 2003. The organization sold cocaine base, cocaine, heroin, and marijuana at several distribution points, including these: the Ernesto Ramos Antonini (“Pámpanos“) Public Housing Project, El Tuque Ward, Rosaly Public Housing Project, and Salistral Ward in Ponce, as well as the Kennedy Public Housing Project in Juana Díaz.
The Federal Bureau of Investigation (FBI) and other federal agencies, working with a division of the Puerto Rico Police Department (PRPD), investigated the drug ring between November 2007 and June 2008. PRPD Agent Carlos León Acosta (“León“) and other officers interviewed cooperators, made arrests and drug seizures, and conducted surveillance. The investigation covered all of the drug points, but most of the surveillance occurred at Pámpanos. While conducting that surveillance, the investigators, including Agent León, took videos of the organization‘s activities, ultimately capturing footage of drug dealing on 78 different days at Pámpanos.
The investigation ultimately produced evidence, including both the video footage and testimony from cooperating witnesses, that both defendants were participants in the drug ring. Ramírez, also known as “Lambe,” was in charge of the distribution of all of the narcotics sold at Salistral. Ramírez was also identified as the wholesale supplier of cocaine for the entire organization by a
Alvarado was identified as a street-level seller in the organization, dealing in crack, heroin, cocaine, and marijuana. He was seen at the distribution point at Pámpanos in surveillance videos on fifteen dates, and was filmed selling drugs on nine of those days. Alvarado was involved in the conspiracy for at least 85 days.
On May 27, 2008, a grand jury indicted Ramírez and Alvarado, along with 109 other members of the conspiracy, on seven conspiracy and drug trafficking counts. The indictment charged both with: conspiracy to possess with intent to distribute at least one kilogram of heroin, five kilograms of cocaine, fifty grams of cocaine base, and one hundred kilograms of marijuana, all within 1000 feet of a public school (Count 1); aiding and abetting in the distribution of each of those drugs and quantities listed within 1000 feet of a public school (Counts 2-5); and narcotics forfeiture (Count 7). See
Both defendants pled guilty to all charges but contested the drug quantities attributable to them. Ramírez also contested the two-level sentencing enhancement for leadership role that the government sought. The district court held extensive hearings for each defendant in the conspiracy to determine the drug quantity individually attributable to each for sentencing purposes, following United States v. Correy, 570 F.3d 373, 380, 382-84 (1st Cir. 2009), and to determine whether any role enhancements were justified.
The evidentiary hearings for both defendants showed that the drug organization sold large quantities of its products. Proceedings in both cases focused on Pámpanos as the drug point for which the prosecution had the most available evidence. Pámpanos operated 24 hours per day, with sellers working two twelve-hour shifts. At least two sellers would work during each shift. The drugs at Pámpanos and elsewhere were sold in individual baggies; a “package” consisted of 25 baggies. During the course of the investigation at Pámpanos, agents seized a collection of 399 baggies of crack. From that seizure, the agents learned that each baggie contained approximately 0.2 grams of crack. Thus, each package of 25 baggies contained approximately 5 grams of crack.
The drug ring primarily sold crack, but it also sold lesser amounts of heroin, cocaine, and marijuana, in that order. At the sentencing hearings, Agent León testified that he could not always tell during his surveillance whether a baggie contained crack or cocaine, but he could distinguish heroin and marijuana by their different packaging and appearance. He further testified that, during an uninterrupted half-hour period of surveillance at Pámpanos, a seller had been observed making approximately 25 sales during a shift for which three sellers were active. He noted that the drug points would sometimes make more sales than that, with surveillance videos showing a single seller making seven or eight transactions in just a few minutes, while at other times they would be less busy, with “short periods” of a few minutes passing between transactions. Agent León explained that he corroborated the level of activity shown in this particular sample as relatively typical by comparing it to videos from other days and by confirming it with cooperators.
Agent León testified that he then extrapolated in order to arrive at an estimate of total drug quantity. He explained that this overall level of sales activity corresponded to about 50 sales per seller per hour, and that with three sellers active (as there were at the time this particular video was filmed) this would give approximately 150 sales per hour at Pámpanos. Within those 150 transactions, Agent León then estimated that approximately 40
Agent León‘s estimate was slightly lower than the PSR‘s overall estimate of 250 grams of crack sold per day at Pámpanos, and was generally consistent with a cooperator‘s grand jury testimony that he had sold 14 packages during his last day at Pámpanos.1
The district court used Agent León‘s estimate to determine the quantities of crack foreseeable by each defendant. As to Ramírez, the government had asked the court to find that at least 4.5 kilograms were foreseeable, explaining that this amount is less than a single month‘s total sales of crack at Pámpanos alone and noting that Ramírez had been involved in the conspiracy for years, much more than the single month needed to prove 4.5 kilograms. The district court agreed that the government proved that quantity by a preponderance of the evidence. It explained:
I provide full credit to the amount of drugs that was determined by [Agent León] who had surveillance, who performed surveillance in
Sal[i]stral and at Pampanos and who saw plenty of television t.v. videos of the drug transactions at Pampanos and at the Salistral ward, and who interviewed the cooperators, and who had access, as I had access, to the grand jury transcripts.
That quantity triggered a base offense level of 38 for Ramírez. The court then found that a two-level leadership enhancement was justified, noting that “I could have gone higher [than two levels] there. But the presentence report reflects only two levels. The United States has not objected. So I go with two.” The court then applied another two-level increase for selling drugs in a protected location and a three-level decrease for acceptance of responsibility, leaving a total offense level of 39. This corresponded to a 262 to 327 month Guidelines range, from which the court departed downward by 100 months to impose a prison term of 162 months. The district court described Ramírez‘s crime of conviction as
That finding corresponded to a base offense level of 36, which was triggered by a quantity of at least 2.8 kilograms of crack. After including an aggravating adjustment for selling drugs in a protected location and mitigating adjustments for minor
II.
We first reject the defendants’ newfound Alleyne argument, then turn to the original issues on appeal.
In supplemental briefs filed after we heard oral argument, both defendants argued that their sentences violate the Sixth Amendment because they were imposed on the basis of factfinding by a judge on a preponderance of the evidence standard rather than by a jury on a beyond a reasonable doubt standard. See Alleyne, 133 S. Ct. at 2162-63. These arguments are meritless.
Alleyne instructs that a defendant‘s Sixth Amendment right to a trial by jury requires that “facts that increase
We flatly reject the proposition that all drug quantity calculations made under the advisory Guidelines must be submitted to a jury. That would be both contrary to Alleyne and an extension of Alleyne. We are not empowered to do so under United States v. Booker, 543 U.S. 220, 245 (2005). Accord Valdez, 739 F.3d at 1054.
Our decisions in prior cases hold that failing to prove an individualized drug quantity is an Alleyne error only in cases in which the defendant has been convicted and sentenced under the
With these principles in mind, we turn to the facts of this case as to each defendant. If Ramírez had been convicted of an aggravated version of the crime, the mandatory minimums to which he could have been exposed were 10 years for 50 grams or more of cocaine base or 5 years for 5 grams or more; if Alvarado had been convicted of an aggravated version, the mandatory minimums to which he could have been exposed were 10 years for 280 grams or more of cocaine base or 5 years for 28 grams or more. See
Alvarado was sentenced to 132 months, and both sentences were explicitly based on Guidelines considerations.
A. Ramírez
As stated, no Alleyne error occurs when there is no mandatory minimum sentence imposed which is triggered by judicial factfinding. Ramírez‘s case fits this model. The record provides no evidence that the district court made any findings to trigger a 10-year mandatory minimum; rather, it shows that the court imposed a Guidelines sentence.6 That distinguishes Ramírez‘s case from
Ramírez argues that Alleyne still governs because his sentence, even if imposed under the Guidelines, exceeds the 10-year mandatory minimum. We disagree. The fact that Ramírez‘s sentence falls above the 10-year mandatory minimum is insufficient to establish that the mandatory minimum governed or that an Alleyne
B. Alvarado
Alvarado likewise was not sentenced based on a mandatory minimum, but rather was sentenced under the Guidelines. While pronouncing sentence with respect to Alvarado, the district court explained:
Based on a total offense level of 31, and a criminal history category of I, the guideline imprisonment range is from 120 to 135 months with a fine range of 15,000 to 20,000, plus a supervised release term of 10 years. . . .
Now, the Court does not provide any downward departure as a mitigating circumstance related to diminished mental capacity because of the report which the Court received on August 26th, 2010 from the
forensic evaluation performed by Dr. Manuel A. Guttierrez. . . .
Therefore, the sentence for this defendant is to be imprisoned for a term of 132 months as to counts one, two, three, four, and five to be served concurrently with each other.
This sentence, like Ramírez‘s, was based on Guidelines considerations. It did not depend in any way on a mandatory minimum, nor is there any indication in the record that the sentencing judge considered Alvarado to have been convicted of an aggravated version of the crime to which a mandatory minimum would have attached. Thus, as with Ramírez‘s sentence, no Alleyne error occurred with respect to Alvarado‘s sentence.8
III.
We now turn to the defendants’ challenges to the adequacy of the evidentiary base for the district court‘s findings of fact in support of its Guidelines sentences.
A. Ramírez
1. Use of Hearsay Evidence
Ramírez‘s principal argument is that the district court based its Guidelines factfinding, and thus its sentence, on
Reliable hearsay is, of course, admissible during sentencing proceedings. See, e.g., United States v. Cash, 266 F.3d 42, 44 (1st Cir. 2001). Ramírez cites cases from other circuits finding due process violations when the district court “reli[ed] on accomplice hearsay without adequate indicia of reliability,” United States v. Corral, 172 F.3d 714, 716 (9th Cir. 1999), or when allegations that were “false or unreliable . . . made the basis for the sentence,” United States v. McGowan, 668 F.3d 601, 606 (9th Cir. 2012). See also United States v. Robinson, 164 F.3d 1068, 1070 (7th Cir. 1999); United States v. Huckins, 53 F.3d 276, 280 (9th Cir. 1995). He also cites to United States v. Tavano, 12 F.3d 301, 305-07 (1st Cir. 1993), in which this court vacated a sentence on due process grounds where the district court had refused to consider evidence of drug quantity favorable to the defendant that had not been introduced at trial. From these cases, Ramírez argues that sentences based entirely on unreliable hearsay evidence violate due process.
Even assuming, without deciding, that Ramírez‘s formulation of the rule is correct, this argument fails. There is no indication that the hearsay testimony used was unreliable. Indeed, the district court squarely confronted the question of the reliability of the hearsay testimony with respect to foreseeable drug quantity. The court found that the hearsay testimony was corroborated by Agent León‘s own surveillance and his review of the surveillance videos other officers had taken. With respect to the hearsay evidence pertaining to Ramírez‘s leadership role, the district court likewise addressed the reliability question directly, noting that “the information is quite reliable” because it was supported by Agent León‘s personal knowledge and observation of the videos, as well as the court‘s own independent review of those videos.
Because the district court carefully ensured that the evidence it relied upon was corroborated, Ramírez‘s sentence was not driven by the admission of unreliable hearsay. Thus, the due process rule that he cites is not implicated. Ramírez does not argue that a due process violation may occur even when the hearsay is reliable, as the district court permissibly found here.
2. Sufficiency of Evidence of Leadership
Ramírez further argues that the evidence of his leadership role in the conspiracy was insufficient to justify the district court‘s finding that he was a leader, which triggered a two-level Guidelines enhancement. This argument, however, is waived because Ramírez explicitly abandoned it during the sentencing hearing. At the final hearing, the following exchange took place:
THE COURT: . . . You realize that I read a transcript that [Ramírez] is also a leader.
Your leader undoubtedly. I don‘t think you are challenging the two point that is are [sic] being provided, right. MR. RIVERA: No. No. Those two points no. It is gist [sic] if I could argue for just a little bit.9
When asked directly, in other words, counsel for Ramírez explicitly abandoned any challenge to the leadership enhancement. This waived any argument that the evidence did not show Ramírez‘s leadership role. See United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).
Even if Ramírez had not waived this argument, we would still find the two-level enhancement justified. The Guidelines provide that, when contemplating a leadership enhancement, courts should consider factors such as:
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
B. Alvarado
Alvarado argues that the district court‘s findings on drug quantity in his case were not supported by the evidence presented at the sentencing hearings.
We review the district court‘s factual decisions regarding drug quantity for clear error. See United States v. Green, 426 F.3d 64, 66 (1st Cir. 2005). Drug quantity findings may “be based on approximations” as long as those approximations “represent reasoned estimates of drug quantity.” United States v. Ventura, 353 F.3d 84, 88 (1st Cir. 2003). A defendant may be held responsible only for drug quantities “foreseeable to [that] individual.” United States v. Correy, 570 F.3d 373, 380 (1st Cir. 2009). Foreseeability encompasses “not only . . . the drugs [the defendant] actually handled but also . . . the full amount of drugs that he could reasonably have anticipated would be within the ambit of the conspiracy.” United States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004).
Alvarado points to these assumptions in his favor as evidence that the findings were unreliable. He argues that the district court‘s unwillingness to adopt the government‘s evidence
IV.
We affirm.
- Dissenting Opinion Follows -
In this appeal, defendants originally challenged their sentences on evidentiary grounds. After oral arguments, but while our decision here was still pending, the Supreme Court decided in Alleyne that any fact that increases the mandatory minimum sentence that a defendant stands to receive is an element of the offense that must be found by a jury beyond a reasonable doubt. Id. at 2156. Understandably, because Alleyne had not been decided, the district court did not inform defendants Ramírez and Alvarado of this right. Instead, the district court made determinations of drug quantity by a preponderance of the evidence, without submitting this question to a jury, and sentenced defendants under a mandatory minimum, in violation of Alleyne. This was clear error on the part of the court. My brethren disagree.
Although the district court acted within the bounds of the law as it stood at the time of sentencing, the law has changed,
I. Background
I take no issue with the majority‘s recitation of the facts and only add, and perhaps reiterate, what I find is relevant to respectfully espouse my view that they are mistaken.
A. Procedural History
In May 2008, a grand jury returned a seven-count indictment against Alvarado, Ramírez, and 109 other co-defendants for, inter alia, conspiracy to possess with intent to distribute narcotics, in violation of
In order to uphold its opinion, the majority is of the view that mandatory minimums were never at play during sentencing proceedings for either defendant. The district court made no mention of the phrase, they contend, hence it must be that the court considered only the Guidelines at sentencing, and proceeded
The record shows otherwise, and contravenes my brethren‘s assumptions and no-harm-done conclusion. Perusal of the transcripts of the change of plea and sentencing hearings, the sentences imposed, and other parts of the record provide more than enough detail to trump any doubt that mandatory minimums were definitive, and integral to the sentencing proceedings. As I will elaborate in more detail, the exchanges between the court and counsel are particularly relevant to defeating the majority‘s view. They clearly establish that the district court was at all times considering a statutory range of ten years to life, which, under
To the extent the drug quantities attributable to each defendant — and the mandatory minimums that go with them — were determined by the district court, rather than a jury, and were found by a preponderance of the evidence, the Alleyne error is inescapable.
B. Change of Plea Hearing
During the change of plea hearing held for defendants on May 8, 2009, both indicated that they intended to contest the drug quantity amounts attributed to them, as well as their roles in the
Discussions of the mandatory minimum in the change of plea hearing began when the government declared that the maximum sentence the defendants were exposed to was a “term of life imprisonment, [and] at least ten years of supervised release,” and specifically as to the conspiracy charge, “up to life imprisonment . . . and a minimum of ten years.” Tr. for Chg. of Plea Hr‘g. at 46-47. Later on, the judge remarked that “[t]he statutory is clear. It‘s ten to life as to all.” Id. at 53, 54.
But that was not the end of it. A discussion then followed regarding the ability of each defendant to enter a straight guilty plea to an indictment where each substantive count carries a ten-year mandatory minimum, while not conceding drug quantity. The district court expressed concern that, with such a guilty plea, it could not sentence defendants to less than the ten-year minimum, regardless of what could later be proven at sentencing. Id. at 58-59. Counsel for Alvarado maintained, however, that each defendant was entitled to an individualized drug amount determination, and that if the minimum quantity threshold was not proven, the ten year mandatory minimum could not be imposed. Id. at 60.
The U.S. Probation Office representative then proceeded to compose the PSR. It underwent several changes and amendments as a result of court orders and objections from defendants, mostly regarding drug quantity attributions. A final PSR was submitted to the district court in January 2010, and it reflected a 56 grams-per-day amount sold at Pámpanos, and an offense level of 33. Once again, both Ramírez and Alvarado objected to the drug quantity assessment in the sentencing memoranda they filed prior to their sentencing hearings.
1. Alvarado‘s Sentencing Hearings
Sentencing proceedings for Alvarado began on February 1, 2010, with an offer from the government to stipulate the drug quantity for a mandatory minimum sentence of 120 months; the ten year minimum under
Agent León was the main witness for the prosecution at sentencing. His testimony was based on personal surveillance,
Agent León testified that he conducted surveillance 10 to 15 times during daytime and approximately 15 times during nighttime for 30- to 60-minute periods, and from a distance of 50 to 200 feet. He estimated that around 200 grams of crack were sold each day, totaling six kilograms per month, based on his calculations that each small baggy contained 0.2 grams of crack multiplied by 25 (the number of small baggies in a single package) and then by 40 (the number of packages sold per day). He stated that he made these estimates on the basis of averages extrapolated from 30-minute periods of video and from personal surveillance. In addition, he stated that he reached that figure through interviews he carried out with sellers who had become cooperators. These cooperators were not presented as witnesses at sentencing. He also interviewed the individual that made the video recordings who personally saw transactions that were not in the videos. Finally, he extrapolated from his presence at a drug seizure where 400 bags of crack or cocaine were seized, and made a calculation as to how much was sold at the drug point per day.11 Agent León nevertheless conceded that drug sales were not the same every day.
Agent León‘s testimony regarding Alvarado specifically was based on his personal surveillance and interviews with cooperating witnesses, who were not presented as witnesses at sentencing. He stated that he personally witnessed Alvarado at the drug point during the night in March and in April 2008. Coincidentally, no video recordings were made on those nights. However, Agent León positively identified Alvarado in video recordings on fifteen different days.
On March 14, 2011, the final day of sentencing proceedings began with a discussion of how the Fair Sentencing Act‘s new triggering drug quantities affected the mandatory minimum sentence for Alvarado. Defense counsel stated there was perhaps evidence to sustain 28 grams of crack, enough for a mandatory minimum of five years, but certainly not enough for the 280 grams that would trigger the ten year mandatory minimum. The government
Throughout the evidentiary hearings, counsel for Alvarado pointed to the want of reliability of the evidence presented by the government. Specifically, counsel insisted that a considerable part of Agent León‘s testimony relied on hearsay and double hearsay, that his drug quantity calculations were often inconsistent and his averages were exaggerated to the point of being implausible, and that the videos were taken at different intervals, with none being taken when transactions were not occurring.
Nonetheless, the district court found that 3.06 kilograms of crack were attributable to Alvarado for his role in the conspiracy. The court discussed the guidelines, and arrived at a sentencing range of 120-135 months. The court then imposed a sentence within that range of 132 months for each count, to be served concurrently, and a term of supervised release of ten years. The minimum range determined by the court is the statutory minimum for
At Ramírez‘s sentencing, Agent León testified that he participated in the investigation of the Pámpanos drug point by performing surveillance, reviewing surveillance videos, interviewing cooperating witnesses, confiscating drugs, and providing support to colleagues who conducted surveillance at Salistral. Specifically, he conducted an investigation from November 2007 until June 13, 2008, surveilled Pámpanos personally 25 to 30 times, and viewed 78 video recordings taken by a witness at Pámpanos. He also seized 399 baggies of cocaine in an apartment which a contracted chemist and lab supervisor, José Mercado, estimated to contain 0.2 grams per baggy. However, no official laboratory results were entered into evidence during the sentencing hearings. Also, during his surveillance, Agent León never spotted Ramírez, nor did he appear in any of the Pámpanos videos.
Ernesto Vidro, a cooperating witness, identified Ramírez‘s role in the conspiracy during grand jury proceedings. At sentencing, Agent León relayed this information, but Vidro was not presented as a witness.
As to Pámpanos in particular, Agent León calculated averages for transactions and drug quantities relying on essentially the same information and dubious methodology as for Alvarado.
During the sentencing hearing, the district court expressed concern about the evidence being presented:
This is a bench hearing and you don‘t know because I may very well state that the hearsay is of such magnitude in this case that it borders and it tramples due process, because up to now is pure hearsay as to liability and ownership — let me tell you all of the hearsay I‘ve heard, because I‘ve put them down here.
As to ownership, purely hearsay. As to supplier, purely hearsay. As to quantity, purely hearsay, up to now.
Tr. of Sent. Hr‘g. for Def. Ramírez, Feb. 17, 2010 at 43. The district court reiterated this concern as the hearings continued and requested that the government file a legal memorandum “as to a sentence based purely on hearsay.”
As to Ramírez‘s sentence, the ten year mandatory minimum was again a matter of discussion between the court and counsel. Defense counsel alluded to the ten year supervised release term Ramírez stood to receive and referenced an earlier statement by the court that “a ten or twelve year sentence is not a Mickey Mouse sentence,” to which the court responded “[b]ut that doesn‘t mean he‘s going to get a ten year sentence“, clearly alluding to the
Thereafter, the court reviewed the Government‘s supplemental brief and the evidence admitted at the evidentiary hearings, and found Ramírez responsible for 4.5 kilograms of cocaine, resulting in a base offense level of 38. Notwithstanding the court‘s earlier apprehension and defense counsel‘s repeated objections, the court clarified that the drug quantity amount was determined giving:
full credit to the amount of drugs that was determined by the policeman who had surveillance, who performed surveillance in Sal[i]stral and at Pámpanos and who saw plenty of videos of the drug transactions at Pámpanos and at the Salistral ward, and who interviewed the cooperators, and who had access, as I had access, to the grand jury transcripts.
Id. at 44-45. The court discussed the relevant guideline factors for a sentencing guideline range of 262-327 months. Id. at 46. The court then imposed a sentence within that range of 162 months, for five counts charged. Upon release, Ramírez would be placed on supervised release for ten years as to three of the counts, to run concurrently.
Immediately thereafter, the court addressed Ramírez: “The court has sentenced you way below the statutory maximum. So the sentence is not illegal. I could have sentenced you to life.” Tr.
If there is any doubt that the district court‘s imposition of sentence was guided by its reliance on the threshold drug amount that triggers the mandatory minimum of ten years, the record provides the proverbial nail in the coffin. The judgment for Ramírez describes his offense as a conspiracy with intent to distribute in excess of 50 grams of cocaine base, the triggering amount for ten to life prescribed by
II. Discussion
On appeal, defendants challenged the district court‘s findings at sentencing as to drug quantity. They essentially argue that the court relied on hearsay, double hearsay, inconsistent testimony and faulty calculations of average drug amounts based on speculation, and unsupported by scientific data. After oral argument, we ordered the parties to submit additional briefs on the issue of whether the Supreme Court‘s recent decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), impacts this appeal. In response to our supplemental briefing order, Ramírez and Alvarado argue that Alleyne prohibits their sentences, because the district court made individualized drug quantity determinations by a
As I believe I have established, the record leaves no doubt that the district court was at all times weighing the evidence while targeting the mandatory minimum. And it did so by a preponderance of the evidence standard. That it also considered and determined the guideline range does not negate this fact. Accordingly, Alleyne squarely applies, and defendants hold the upper hand.
The relevant statute of conviction prohibits the “manufactur[ing], distribut[ing], or dispens[ing], or posess[ing] with intent to manufacture, distribute, or dispense, a controlled substance.”
In Alleyne, the Supreme Court held that “facts that increase the mandatory minimum sentence” to which a criminal statute exposes a defendant, are “elements [that] must be submitted to the jury and found beyond a reasonable doubt.” 133 S. Ct. at 2158. This holding was merely an extension of the Supreme Court‘s prior decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that, besides a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.“). Id. at 490.
Like the Harakaly court, the district court here erred when it made individualized drug determinations for Alvarado and Ramírez by a preponderance of the evidence, and set a statutory minimum based on that determination. If the defendant waives his right to a jury trial — i.e., the right to, inter alia, have the element of drug quantity proven beyond a reasonable doubt — then, in order to sustain a conviction, Alleyne logically requires the defendant‘s admission of drug quantity. At the time they submitted their guilty pleas, and all throughout sentencing proceedings,
As defendants’ case was pending on appeal at the time the Supreme Court handed down Alleyne, there is no question its holding applies here. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final. . . .“). Unlike Harakaly however, defendants here did not preserve their Alleyne claims below, and only argued the error on appeal after we ordered supplemental briefing on the issue. Accordingly, review of Ramírez and Alvarado‘s Alleyne claim, is for plain error. Cf. Harakaly, 734 F.3d at 94 (“This court reviews unpreserved Apprendi errors for plain error and preserved Apprendi errors for harmless error.“); see also United States v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014). Plain error review requires a defendant to show that an error occurred; that the error was clear or obvious; and, that the error affected substantial rights, or the outcome of the case. United States v. Rodriguez, 675 F.3d 48, 64 (1st Cir. 2012). “Even if a defendant can show all of this, we have discretion not to
On appeal, Alvarado exploits several aspects of Agent León‘s testimony regarding drug quantity: that he did not know the relative amounts of marijuana, heroin, and cocaine sold at the drug point and could not conclude that crack was the substance most sold; that he was unable to tell whether cocaine or crack was being sold in any given transaction involving a white substance in a transparent baggy; that his surveillance at the drug point was partial and he made no notes; that he relied on unsupported assertions of a cooperating witness that 1,000 baggies were sold each day at the drug point; and that his testimony that 150 transactions occurred per hour was not credible. Additionally, he argues that the video recordings were unreliable and any averages derived therefrom lack empirical underpinnings. Specifically, he claims that, since the video only recorded when there was movement at the drug point, the footage did not represent an entire day‘s worth of transactions nor did they account for fluctuations because of weather or police activity. Further, it is alleged it was impossible to determine from the recordings what substance was being sold in those transactions. In relying on the videos, Alvarado insists, Agent León made unsubstantiated and conclusory assertions that out of an estimated 150 transactions per hour, 40 involved crack.
In Harakaly, we affirmed the district court‘s conviction under the more lenient harmless error standard, and found that notwithstanding the Alleyne error, there was overwhelming evidence of drug quantity sufficient to trigger the heightened penalty provision. Harakaly, 734 F.3d at 96 (finding evidence of drug quantity overwhelming where defendant, at the change of plea hearing, acknowledged the accuracy of an account from a co-conspirator that he had delivered to co-conspirator an amount of drugs far exceeding the triggering amount). Here, the government has marshaled no such evidentiary effort, and Ramírez and Alvarado have accurately and appropriately pointed us to serious flaws in the government‘s case. Perhaps most telling of all, is the district court‘s own recognition that the evidence presented by the government at sentencing, was largely hearsay and deficient to the point of trampling due process.
If the Sixth Amendment still allowed the district court to make drug quantity findings for determining mandatory minimums
In Delgado-Marrero, we found reversible error, under plain error review, where the court, after trial and on a special verdict question, failed to instruct the jury that the element of drug quantity was to be determined beyond a reasonable doubt. Delgado-Marrero, 744 F.3d at 188-89. We further noted that, due to the shortcomings of the drug quantity evidence presented by the government, this was not “a case in which the evidence tying the defendant to the charged conspiracy involved drugs that were indisputably in excess of the requisite amounts.” Id. at 189. (citations omitted). In Delgado-Marrero, the evidence of drug quantity presented by the government was merely contestable, yet we
As to the proper remedy, our recent decision in United States v. Pena, 742 F.3d 508 (1st Cir. 2014) suggests the way forward. In Pena we found reversible Alleyne error where the defendant pled guilty to an underlying drug offense, and the court later found, by a preponderance of the evidence, that death had resulted from the defendant‘s drug dealing, thus exposing the defendant to a higher mandatory minimum sentence; an element not pled to nor found by a jury beyond a reasonable doubt. Id. at 514. We remanded for resentencing for the underlying offense only, excluding the “death resulting” charge, and refused to allow the government, in part because of Double Jeopardy considerations, to re-indict Pena and seek a conviction for “death resulting” by way of a special sentencing jury. Id. at 509.
In Pena we recognized that, though perhaps not warranted in every case, a typical solution for an Alleyne error is to remand for resentencing. Id. at 515. We noted that “Post-Apprendi cases are also instructive, because Alleyne is an extension of the Apprendi doctrine” and that the remedy for an Apprendi error is “usually a simple remand to the district court for resentencing.”
Indeed, as noted in Pena, the Second, Sixth, and Tenth Circuits have, on plain error review, remanded for resentencing where, as here, the defendant pled guilty to drug crimes, but not to drug quantity, and the lower court endeavored to make drug quantity findings by a preponderance of the evidence in violation of Apprendi. Id. at 518 n.12; see also United States v. Doe, 297 F.3d 76, 93 (2d Cir. 2002) (remanding for resentencing, on plain error review, where defendant pled guilty to drug crimes without specified drug quantity and the district court made quantity findings by a preponderance standard); United States v. Campbell, 279 F.3d 392, 397, 402 (6th Cir. 2002) (same); United States v. Cernobyl, 255 F.3d 1215, 1221 (10th Cir. 2001) (same). I would find this occasion appropriate for following this same path, and would order the district court to re-sentence Ramírez and Alvarado to crimes that require no drug quantity determination.
Contrary to what my brethren suggest, my view of this matter in no way encroaches on a trial court‘s fact finding function at sentencing. A trial court‘s duty, and discretion, to find facts in order to determine a proper sentence under the guidelines remains untouched. However, “[e]stablishing what
III. Conclusion
That the new sentences the district court might impose pursuant to my proposed order — within the twenty year maximum allowed by
Notes
Based on a total offense level of 39 and a criminal history category of I, the guideline imprisonment range in this particular offense is from 262 to 327 [months] . . . .
The Court notes Mr. Ramirez has no diagnosis of any mental disorder or [any] major physical depression. However the Court is aware he has had a history of marijuana use and Percocet pills. . . . The Court further notes that even though the defendant has one criminal [history] point the instant offense is his first conviction of a felony offense. . . .
The Court recognizes the following mitigating [§] 3553 factors: First, he was the first defendant amongst the leaders who plead [sic]. . . . The Court further recognizes the defendant‘s stressful, tough, difficult childhood . . . .
Taking into consideration the above-mentioned factors and in order also to avoid sentencing disparities, a variance in sentence will be imposed that
is sufficient but not greater than necessary.
Therefore, it is the judgment of this Court that this defendant is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 162 months as to counts one through five. This represents a variance from the guidelines of over one hundred months. The mandatory minimum played no part in this assessment.