419 F.3d 835 | 8th Cir. | 2005
Lead Opinion
The Supreme Court granted Santiago Gomez’s petition for certiorari in this case, vacated our earlier judgment, and remanded for further proceedings in light of United States v. Booker, — U.S. -, 125 S.Ct. 1037, 160 L.Ed.2d 621 (2005). Our earlier opinion affirmed Gomez’s sentence and the district court’s
Santiago Gomez was convicted by a jury of conspiracy to distribute cocaine. The jury found Gomez responsible for an amount of cocaine in excess of 5 kilograms. This quantity would have given Gomez a base offense level of 32, which combined
Gomez argues that 40 kilograms of cocaine were improperly attributed to him. He contends the evidence did not show that he took part in the 40 kilogram transaction involved in the case and that there had been at most preliminary discussions about the deal. He also argues that the transaction was not within the scope of the conspiracy and that the conspiracy was not capable of delivering that amount. The government points to evidence that Gomez was part of the same drug network as those who planned the transaction, that there was an agreement to do the deal, that the transaction was a reasonably foreseeable activity of the conspiracy in which Gomez had an integral role, and that the conspiracy was capable of supplying thousands of kilograms of cocaine. We conclude that the district court did not clearly err in its finding of drug quantity.
Gomez also argues there was no proof he had a managerial or supervisory role in the conspiracy. There was evidence that Gomez controlled the flow of cocaine and that he directed Darryl Wilson, an American distributor of the cocaine, during the course of the conspiracy in regard to the delivery times and locations of the cocaine. There was additional evidence that Gomez ordered the purchase of mobile phones for the conspiracy and that he directed Wilson to travel to Mexico to meet with the leader of the conspiracy. We conclude that the district court did not clearly err in its finding of Gomez’s role in the offense.
Gomez argues that he did not forfeit his right to contest the imposition of his sentence as being unconstitutional because he proceeded to trial by jury and objected to the district court’s imposition of a sentence based on a higher quantity drug amount than found by the jury. He did not raise any Sixth Amendment issue, however, or object to the application of mandatory sentencing guidelines or cite Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We thus review his sentence for plain error. United States v. Pirani, 406 F.3d 543, 548-49 (8th Cir.2005) (en banc).
To establish plain error, Gomez must show (1) an error, (2) that is plain, that not only (3) affected his substantial rights, but also (4) “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The district court treated the guidelines as mandatory so the first two prongs are established. To meet the third prong, Gomez must show a “reasonable probability” that the district court would have imposed a more lenient sentence under the now advisory guidelines. Pirani, 406 F.3d at 551.
Gomez maintains that the significant increase in the sentencing range caused by the court’s holding him responsible for over 50 kilograms of cocaine and the imposition of a sentence toward the bottom of the range create a reasonable probability that the district court would have imposed a lesser sentence under an advisory guide
We also review Gomez’s sentence for unreasonableness in light of the sentencing factors set forth in 18 U.S.C. § 3553(a). See Booker, 125 S.Ct. at 765-66. Gomez was actively involved in a drug conspiracy that involved over 50 kilograms of cocaine and millions of dollars. The trafficking consistently crossed state and national boundaries. Gomez knowingly contributed to the conspiracy’s growth and the infrastructure necessary for the conspiracy to continue. In light of Gomez’s involvement in the conspiracy and the danger the conspiracy posed to the public, the district court’s determination that 300 months imprisonment “adequately protects the public and provides appropriate punishment for the defendant” is not unreasonable. 18 U.S.C. § 3553(a)(2)(A)-(C).
Finally, Gomez argues that it would violate his due process rights if this court were to rely on Pirani, 406 F.3d 543, in deciding his case because Judge Steven M. Colloton, a member of the en banc court, was the United States Attorney who previously oversaw Gomez’s prosecution.
Accordingly, we affirm the judgment of the district court.
. The Honorable Ronald E. Longstaff, Chief Judge, United States District Court for the Southern District of Iowa.
. Judge Colloton has recused himself from all cases for which he was responsible prior to his appointment.
Concurrence Opinion
concurring.
I continue to believe that a defendant’s challenge to the factual basis for a sentence enhancement preserves his Sixth Amendment sentencing claim. See United States v. Pirani, 406 F.3d 543, 555-62 (en banc) (Heaney, J., dissenting). Moreover, I adhere to the view stated by Judge Bye in Pirani, that defendants who did not properly preserve their Booker claims in the district court are nonetheless generally entitled to resentencing under a constitutional regime. Pirani, 406 F.3d at 562-67 (Bye, J., dissenting). Because a majority of our court held to the contrary on both counts, however, I concur.
