U.S. v. Duarte Jr

• Citation: 246 F.3d 56
• Decision Date: 07 February 2001
• Docket Number: No. 00-1136,00-1136
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. EDWARD F. DUARTE, JR., Defendant, Appellant. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 56

246 F.3d 56 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. EDWARD F. DUARTE, JR., Defendant, Appellant.

No. 00-1136

United States Court of Appeals For the First Circuit

Heard February 7, 2001

Decided April 17, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge] H. Ernest Stone, by appointment of the court, for appellant.

Michael D. Ricciuti, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and Dina Michael Chaitowitz, Assistant United States Attorney, were on brief, for appellee.

Before Selya, Lynch and Lipez, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Edward F. Duarte, Jr., entered a guilty plea to multiple counts of possessing marijuana with intent to distribute and conspiring to possess marijuana with intent to distribute. The district court imposed a 151-month incarcerative sentence. Duarte appeals, asserting that the lower court's determination of drug quantity under a preponderance-of-the-evidence standard elevated his sentence above the five-year statutory maximum for trafficking in unspecified amounts of marijuana and thereby contravened the rule laid down in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Because Duarte did not advance this argument below, we review for plain error. Discerning none, we affirm.

I. BACKGROUND

Duarte was a ringleader in a massive conspiracy that transported marijuana from California and distributed it in and around Taunton, Massachusetts. The conspiracy operated successfully for several years, but the authorities eventually brought the perpetrators to book. On September 11, 1997, a federal grand jury sitting in the District of Massachusetts charged Duarte with multiple counts of marijuana trafficking and money laundering. Although the body of the indictment did not mention specific drug quantities, special notices were appended to two of the marijuana-trafficking counts. One such notice read:

The offense described in Count Three involved one thousand kilograms or more of a mixture or substance containing a detectable amount of marijuana. Accordingly, Title 21, United States Code, Section 841(b)(1)(A)(vii), applies to this count.

A similar notice described Count Nine as involving one hundred kilograms or more of marijuana and invoked the penalty provision set forth in 21 U.S.C. § 841(b)(1)(B)(vii).¹

Duarte originally denied the charges. On April 14, 1999, however, he reversed course. His ensuing guilty plea encompassed eight counts of possession of marijuana with intent to distribute, three counts of conspiracy to possess marijuana with intent to distribute, and two counts of conspiracy to launder money. See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 1956(h). Counts Three and Nine were included in the compendium of counts to which Duarte pleaded guilty. The plea agreement between Duarte and the government prominently featured drug quantity. In that agreement, Duarte took explicit responsibility for handling 1,000 to 3,000 kilograms of marijuana.

At the disposition hearing, held on December 1, 1999, the district court divided the charges into two groups. See USSG §3D1.1(a)(1). As to the eleven marijuana counts, the court accepted Duarte's aforesaid admission anent drug quantity and, accordingly, set the base offense level at 32. See id. §2D1.1(c)(4) (mandating base offense level of 32 for offenses involving at least 1,000 but less than 3,000 kilograms of marijuana). The court then added four levels for Duarte's role in the offense. See id. §3B1.1(a) (prescribing a four-level upward adjustment for a defendant's leadership role in an extensive criminal activity).

Duarte's adjusted offense level on the grouped marijuana counts (36) was higher than his adjusted offense level on the grouped money laundering counts (30), so the court brought the combined offense level to 37. See id. §3D1.4 (directing that one level be added to the higher group where the second group registers five to eight levels less). Subtracting three levels for acceptance of responsibility, see id. §3E1.1(b), produced a total offense level of 34. Since Duarte had no prior criminal record, that yielded a guideline sentencing range of 151-188 months. See id. Ch.5 Pt.A (sentencing table). The court thereupon sentenced Duarte to concurrent 151-month terms on each of the thirteen counts of conviction. This appeal followed.

II. ANALYSIS

In Apprendi, 120 S. Ct. at 2362-63, the Supreme Court held that "[o]ther than the fact of 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." Duarte challenges the sentence imposed for each of the eleven marijuana counts based on this rule.² The thrust of his argument is that, absent a specification of drug quantity in the indictment and its determination by a jury beyond a reasonable doubt, he should have been sentenced to no more than the lowest statutory maximum applicable to marijuana trafficking (five years, see 21 U.S.C. § 841(b)(1)(D)).

We divide our analysis of this argument into three segments. We first examine the statutory scheme under which Duarte was charged, convicted, and sentenced. We next ponder whether an Apprendi error occurred. Assuming, arguendo, the existence of such an error, we proceed to explore the consequences.

A

Duarte pleaded guilty to eight counts of possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and three counts of conspiring to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. Because section 846 adopts by cross-reference the penalties provided for violations of section 841(a)(1), we focus on the latter statute.

21 U.S.C. § 841(a)(1) makes it unlawful to "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." The statute covers marijuana. Id. § 812(c), Sched. I(c)(10). The penalties for transgressing section 841(a)(1) are set out in 21 U.S.C. § 841(b). That section provides for different statutory maximums based, inter alia, on the type and quantity of the substances involved.

A violation of section 841(a) that involves 1,000 kilograms or more of a substance containing marijuana exposes the perpetrator to a maximum sentence of life imprisonment. Id. § 841(b)(1)(A). A violation that involves one hundred kilograms or more of a substance containing marijuana carries a maximum sentence of forty years. Id. § 841(b)(1)(B). A violation that involves less than fifty kilograms of marijuana carries a maximum sentence of five years. Id. § 841(b)(1)(D). The catchall provision -- which, by process of elimination, covers offenses involving at least fifty but less than one hundred kilograms of marijuana -- carries a maximum sentence of twenty years. Id. § 841(b)(1)(C). Thus, the lowest statutory maximum -- what we sometimes have called the "default statutory maximum," United States v. Robinson, 241 F.3d 115, 118 (1st Cir. 2001) -- for a violation of 21 U.S.C. § 841(a)(1) involving marijuana is five years. See 21 U.S.C. § 841(b)(1)(D).

To state the obvious, Duarte's 151-month sentence on each of the eleven marijuana counts exceeds this default statutory maximum. Duarte pounces on this discrepancy and posits that the sentence imposed upon him contravenes Apprendi. This is so, he claims, because the sentencing court increased his sentence beyond the default statutory maximum based on a fact (drug quantity) that was neither charged in the indictment nor found by a jury beyond a reasonable doubt. On this basis, Duarte seeks vacation of the sentences imposed on the marijuana-trafficking counts and a remand for resentencing within the modest confines of section 841(b)(1)(D), that is, to sentences that do not exceed five years per count. Because Duarte did not advance this argument below, we review it for plain error. See Robinson, 241 F.3d at 119; United States v. Mojica-Baez, 229 F.3d 292, 307 (1st Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3557, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2001).

Review for plain error entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-67 (1997); United States v. Olano, 507 U.S. 725, 732 (1993); United States v. Brown, 235 F.3d 2, 4 (1st Cir. 2000).

B

The first question before us is whether the district court committed an Apprendi error. It is now settled in this and other circuits that even though an indictment is silent as to drug amount and the jury is not asked to make a specific drug-quantity determination, no Apprendi violation occurs as long as the defendant receives a sentence below the default statutory maximum applicable to the kind of drugs at issue. Robinson, 241 F.3d at 119 (collecting cases). This holds true even if the length of the sentence has been significantly increased by facts (such as drug amount) that have been found by the sentencing court under a preponderance-of-the-evidence standard. Id.

This case, however, falls outside that safe haven because Duarte's sentence on the marijuana counts exceeded the five-year default statutory maximum limned in 21 U.S.C. § 841(b)(1)(D). Because the length of the sentence was driven largely by drug quantity -- a fact neither charged in the indictment nor submitted to the jury -- an Apprendi error may have occurred. E.g., United States v. Nance, 236 F.3d 820, 825 (7th Cir. 2000) (acknowledging that a sentence enhanced beyond the statutory maximum by reason of the sentencing court's drug-quantity determination reflected Apprendi error); United States v. Rogers, 228 F.3d 1318, 1327-28 (11th Cir. 2000) (simi...