U.S. v. Luciano

• Decision Date: 08 July 2005
• Docket Number: No. 04-1024.,04-1024.
• Citation: 414 F.3d 174
• Parties: UNITED STATES of America, Appellee, v. Ernesto LUCIANO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

414 F.3d 174

UNITED STATES of America, Appellee, v. Ernesto LUCIANO, Defendant, Appellant.

No. 04-1024.

United States Court of Appeals, First Circuit.

Heard January 4, 2005.

Decided July 8, 2005.

William T. Murphy, for appellant, by appointment of the court.

Donald C. Lockhart, Assistant United States Attorney, with whom Robert Clark Corrente, United States Attorney, and Adi Goldstein, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

This appeal focuses on the district court's finding that defendant-appellant Ernesto Luciano used a weapon in connection with an assault, triggering a four-level sentencing enhancement. Although Luciano pleaded guilty to one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), during sentencing he objected to the enhancement and denied using the weapon in connection with an assault.

On appeal, Luciano argues (1) pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that his sentence was improperly enhanced based on facts determined by the district court without a jury; (2) pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that the district court's reliance on a witness's out-of-court statement to determine the enhancing facts violated his rights under the Confrontation Clause, and (3) that the district court abused its discretion when, in determining the enhancing facts, it relied on out-of-court statements of the only witness to the alleged enhancing crime, without determining that the witness was unavailable. For the reasons set forth below, we affirm Luciano's sentence.

I.

On the night of July 30, 2003, Luciano was arguing with his girlfriend at a bus stop in Providence, Rhode Island. A nearby teenager, David Camacho, witnessed Luciano pull out a gun and point it at Luciano's girlfriend.¹ Camacho flagged down a police cruiser driven by Officer Brian Thornton and told Officer Thornton what he had seen. He told the officer that the perpetrator was dressed all in orange and pointed to the bus stop where he had seen Luciano. Officer Thornton approached the area of the bus stop and saw Luciano, who was dressed in orange. He stopped Luciano and ordered him to place his hands on his head. As Luciano complied with the order, he dropped a loaded gun magazine. Officer Thornton then frisked Luciano and found a fully loaded .22 caliber semi-automatic pistol.

The Pre-Sentence Report ("PSR") calculated Luciano's base offense level as 24, pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2K2.1(a)(2), due to Luciano's two prior felony drug convictions. In paragraph seventeen, the PSR then applied a four-level enhancement based on the fact, determined by the district court judge rather than a jury, that Luciano had used the weapon in connection with an assault with a deadly weapon. See U.S.S.G. § 2K2.1(b)(5); R.I. Gen. Laws § 11-5-1(a). After applying a three-level reduction for acceptance of responsibility, the PSR concluded that Luciano's total offense level was 25. His ten criminal history points placed him in criminal history category V. Thus, the resulting applicable guideline sentencing range ("GSR") was 100-125 months. The statutory maximum, however, was 120 months, and the district court sentenced him to the maximum of 120 months.

Two witnesses testified at the sentencing hearing — Officer Thornton and Julissa Torres, Luciano's girlfriend and the alleged victim of the assault. The teenage witness, Camacho, did not testify.

Officer Thornton testified that fourteen-year-old David Camacho stopped his cruiser on Broad Street in Providence at 9:40 p.m. on July 30, 2003. The defense objected on the basis of hearsay when the officer began describing what the boy had said. The court overruled the objection, pointing out that hearsay is admissible in a sentencing hearing. Thereafter, Officer Thornton testified that Camacho told him that a man dressed in orange had pointed a gun at him and at the man's girlfriend. The officer also described the demeanor of Julissa Torres as crying, upset and visibly shaken. Officer Thornton testified that as he attempted to ask Torres questions, Luciano was screaming at her in Spanish from the back seat of the cruiser. Torres refused to identify herself and eventually stopped speaking to the officer altogether.

In addition to calling Officer Thornton, the government offered a detective's report of a statement that Camacho made to another Providence Police Detective at the police station later that night. The defense objected that Luciano was not given the opportunity to cross-examine Camacho. When the court sought clarification concerning the ground for the objection, the defense confirmed that it was a hearsay objection. The government responded that U.S.S.G. § 6A1.3 allows the admission of hearsay at sentencing so long as it is sufficiently reliable. The district court overruled the objection and admitted the report. Later in the hearing, the defense again objected to the use of Camacho's statements without his presence for cross-examination, this time questioning the reliability of the evidence.

The government also offered Camacho's grand jury testimony into evidence. The defense objected on the ground that it was hearsay and not sufficiently reliable. The district court overruled the objection and admitted the exhibit.

Julissa Torres testified that she had known Luciano for one and a half to two years and is still his girlfriend. They were on Broad Street in Providence waiting for a bus and were arguing about a woman who had recently given birth to Luciano's child. Torres stated that, at that time, there was a group of teenagers near the bus stop. She also testified that their arguments had never been physical and that she did not know Luciano had a gun with him until Officer Thornton searched him. Torres stated that Luciano never threatened her with a gun and that he had not pointed a gun at her at the bus stop. She also testified that, while in the back of the police cruiser, Luciano was yelling in Spanish that she should go to his mother's house.

In ruling that the enhancement was warranted, the district court noted that the defense's objection to Camacho's statements was that they lacked the necessary indicia of reliability and therefore should not be taken into account. The court ruled that there were in fact multiple indicia of the reliability of the hearsay descriptions of the assault, noted that Torres had understandable motives to exonerate Luciano, and that she might not have seen Luciano point the gun at her head if, as Camacho described, Luciano had pointed the gun at the back of her head. The district court ultimately concluded that the government had proven the assault by a preponderance of the evidence and that the four-level enhancement was proper. After denying two motions for downward departure, the district court sentenced Luciano to the statutory maximum of 120 months in prison.

II.

A. Booker

Luciano asserts that he is entitled to resentencing in light of Blakely and Booker. At the outset, we must determine whether Luciano has preserved the Booker error. "The argument that a Booker error occurred is preserved if the defendant below argued Apprendi or Blakely error or that the Guidelines were unconstitutional." United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.2005). In his supplemental Booker brief, Luciano claims that the Booker error was preserved by trial counsel's repeated objections to the use of hearsay testimony to describe the assault. However, Luciano admits that no reference was made to Apprendi at the time, nor was the argument made that the Guidelines are unconstitutional. In addition, the argument that the Booker error was preserved is contradicted by Luciano's original appellate brief, in which he acknowledged that he did not raise a Blakely-like claim below and that, consequently, the standard of review on appeal is plain error. Thus, we find that the Booker error was not preserved, and we review for plain error. See Antonakopoulos, 399 F.3d at 75.

To prevail under the plain error standard, the appellant must show: "(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." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). See also United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The first two prongs are satisfied "whenever defendant's Guidelines sentence was imposed under a mandatory Guidelines system." Antonakopoulos, 399 F.3d at 77. That is the case here.

However, we "reject[ed] the view that a Blakely [Sixth Amendment] error automatically requires a Booker remand" for resentencing. Id. at 79. The district court's finding of "additional facts which raised the sentence authorized solely by the jury verdict or guilty plea ... is insufficient to meet the third and fourth Olano prongs on plain-error review." Id. For the claim to survive plain error review, this court must find a reasonable probability that advisory Guidelines would have produced a more favorable sentence. Id. at 78-79.

In this case, it appears very unlikely that the district court would have sentenced Luciano more leniently under advisory Guidelines. As it was, the district court rejected two motions for downward departure, rejected the government's more lenient sentence recommendation, and sentenced Luciano to the statutory maximum of 120 months out of an applicable guideline sentencing range of 100-125 months. In so doing, the district court remarked: "In my judgment, I need to send you away long enough to protect the citizens of this...