U.S. v. Pineiro

• Decision Date: 12 July 2004
• Docket Number: No. 03-30437.,03-30437.
• Citation: 377 F.3d 464
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco D. PINEIRO, also known as Frank Pineiro, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

377 F.3d 464

UNITED STATES of America, Plaintiff-Appellee, v. Francisco D. PINEIRO, also known as Frank Pineiro, Defendant-Appellant.

No. 03-30437.

United States Court of Appeals, Fifth Circuit.

July 12, 2004.

Camille Ann Domingue, Asst. U.S. Atty. (argued), Lafayette, LA, for Plaintiff-Appellee.

Christopher Albert Aberle (argued), Mandeville, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit Judges.

KING, Chief Judge:

In this case we are called upon to consider the impact on the federal Sentencing Guidelines of the Supreme Court's recent opinion in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Defendant Francisco D. Pineiro was convicted in the district court of violating the federal controlled-substances laws. During sentencing, the district judge followed then-uncontroversial pre-Blakely procedures and made various factual findings that determined Pineiro's sentencing range under the Guidelines.

This court assuredly will not be the final arbiter of whether Blakely applies to the federal Guidelines, but the unremitting press of sentencing appeals requires us to produce a decision. We have undertaken to discern, consistent with our role as an intermediate appellate court, what remains the governing law in the wake of Blakely. Having considered the Blakely decision, prior Supreme Court cases, and our own circuit precedent, we hold that Blakely does not extend to the federal Guidelines and that Pineiro's sentence did not violate the Constitution. Accordingly, the defendant's sentence is affirmed.

I. BACKGROUND

A three-count indictment charged Pineiro with committing federal drug offenses. Count one charged Pineiro with carrying on a marijuana- and cocaine-distribution conspiracy, involving at least 100 kilograms of marijuana and 50 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.¹ Count two charged him with possessing and aiding and abetting possession with intent to distribute approximately three-fourths of a pound of marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.² Count three charged him with possessing and aiding and abetting possession with intent to distribute approximately twenty-one pounds of marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Pineiro pleaded not guilty, and his case proceeded to trial. On the first count of the indictment, the verdict form required the jury to indicate the amounts (if any) of marijuana and cocaine that the jury found that Pineiro had conspired to distribute. As to marijuana, the jury could choose whether Pineiro was guilty of conspiring to distribute "100 kilograms or more," "50 to 100 kilograms," "less than 50 kilograms," or whether he was not guilty. Similarly, for cocaine, the jury could choose from "50 grams or more," "50 grams or less," or not guilty.³ The jury found Pineiro guilty of conspiring to distribute the lowest amounts listed: "less than 50 kilograms" of marijuana and "50 grams or less" of cocaine. The jury also found Pineiro guilty as charged on counts two and three.

Based on the drug quantities found by the jury, the maximum sentences set forth in the United States Code were 20 years for count one, see 21 U.S.C. § 841(b)(1)(C) (establishing maximum sentences for any amount of cocaine less than 500 grams), and 5 years for counts two and three, see id. § 841(b)(1)(D) (establishing maximum sentences for less than 50 kilograms of marijuana).

In accordance with the usual practice, a probation officer prepared a Presentence Investigation Report (PSR) to assist the judge in determining an appropriate sentence within the statutory range. The PSR used the 2002 version of the United States Sentencing Commission's Guidelines Manual. The PSR held Pineiro responsible for amounts of drugs much greater than the amounts found by the jury: based on statements from several unnamed cooperating witnesses, the PSR indicated that Pineiro was responsible for 453.6 kilograms of marijuana and 1,048.95 grams of cocaine in connection with the conspiracy charge. Based on this quantity of illegal drugs, the PSR concluded that the base offense level for the first count was 28. See U.S.S.G. § 2D1.1(c) (Drug Quantity Table). The PSR further recommended that Pineiro also receive a four-level sentence enhancement under U.S.S.G. § 3B1.1(a) for being "an organizer or leader" of the conspiracy. The resulting total offense level of 32, when combined with Pineiro's criminal history category of I (he had no prior convictions), yielded a Guidelines sentencing range of 121 to 151 months.

Pineiro objected to the PSR on several grounds, two of which are relevant to this appeal. First, he objected to the base offense level of 28, complaining that the jury's findings with respect to drug quantities required a lower base offense level. His objection argued that using the larger quantities would conflict with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and would disrespect "the sanctity of the jury proceedings." Second, he objected to the four-level "organizer or leader" enhancement on the ground that the evidence at trial did not support such a factual finding, but he did not raise the constitutional claim regarding this enhancement.

The district court overruled Pineiro's objections and sentenced him to 121 months on the first count, 60 months on the second count, and 60 months on the third count, with the sentences to run concurrently.

Piniero then appealed his sentence. In his initial brief, he conceded that his Apprendi-based challenge to the district court's drug-quantity calculation was foreclosed by circuit precedent, but he nonetheless raised the issue to preserve it for further review. After briefing was completed but before oral argument, the Supreme Court decided Blakely, and we ordered supplemental briefing to assess its impact. Pineiro contends that Blakely applies to the federal Guidelines and that his sentence must be vacated and the case remanded for resentencing.⁴ The government contends that Blakely does not apply.

II. ANALYSIS

A. Impact of Blakely

Had today's case been decided a month ago, Pineiro's Apprendi challenge would not have been a difficult one to resolve. Although post-verdict judicial findings of fact increased Pineiro's sentence substantially, the resulting sentence does not exceed the statutory maximum set forth in the United States Code. We therefore would simply have applied long-entrenched circuit precedent that holds Apprendi inapplicable to such circumstances. See, e.g., United States v. Floyd, 343 F.3d 363, 372 (5th Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2190, 158 L.Ed.2d 752 (2004); United States v. McIntosh, 280 F.3d 479, 484 (5th Cir.2002); United States v. Keith, 230 F.3d 784, 787 (5th Cir.2000), cert. denied, 531 U.S. 1182, 121 S.Ct. 1163, 148 L.Ed.2d 1023 (2001); Doggett, 230 F.3d at 165-66. This line of authority embraces the view that judge-made factual findings that determine Guidelines ranges below the congressionally enacted maximum sentence are constitutionally equivalent to the sentencing judge's historic discretion to choose a sentence within a legislatively authorized range. But because of the Supreme Court's recent decision in Blakely, we are now required to consider the viability of that line of cases, and indeed the continued force of certain prior Supreme Court decisions as well. Committed as we are to principles of stare decisis and orderliness, we do not depart from settled law in the absence of an on-point en banc or Supreme Court holding. See, e.g., Robinson v. Parsons, 560 F.2d 720, 721 n. 2 (5th Cir.1977).

Blakely involved the sentencing regime of the State of Washington. The Washington criminal code establishes maximum sentences for felonies according to whether the crime is a class A, B, or C felony. Also codified as part of the state statutes, however, is the Sentencing Reform Act, which establishes presumptive sentencing ranges based on the "seriousness level" of the offense and the offender's criminal history. The seriousness level of the offense is for the most part a function of the statute of conviction. The Act permits the judge to impose a sentence above the presumptive range when there exist "substantial and compelling reasons justifying an exceptional sentence." The Act sets out a list of such factors, but the list is only illustrative, not exhaustive. A factor is a permissible reason for imposing an exceptional sentence only if it is not already taken into account in the calculation of the presumptive range.

Blakely pleaded guilty to second-degree kidnapping with a firearm. As a class B felony, it was punishable under the state criminal code by a sentence of up to 10 years. The Sentencing Reform Act, though, specified a presumptive range of only 49 to 53 months for this particular crime. At sentencing, the judge imposed an exceptional sentence of 90 months on the ground that Blakely had acted with "deliberate cruelty," a statutorily enumerated ground for upward departure. The defendant objected to the increase, but the trial judge adhered to his decision after conducting a three-day bench hearing.

In reaching its decision that Blakely's sentence was imposed in violation of the Constitution, the Supreme Court took as its primary precedent its decision in Apprendi v. New Jersey. Apprendi involved two New Jersey statutes, one that authorized a 10-year term for the second-degree offense of unlawful possession of a firearm and a second statute that provided for a term of 10 to 20 years if the trial judge found that the defendant acted with the intent to intimidate the victim based on his race or other protected statuses. 530 U.S. at 468-69, 120 S.Ct. 2348. The Apprendi Court concluded that the factual findings supporting the enhanced sentence had to be...