U.S. v. Gonzalez

• Decision Date: 22 August 2005
• Docket Number: Docket No. 03-1356.
• Citation: 420 F.3d 111
• Parties: UNITED STATES of America, Appellee, v. Manuel GONZALEZ, also known as &#34;Luis Enrique Dirocie Bello,&#34;<SMALL><SUP>1</SUP></SMALL> also known as &#34;Tito,&#34; Defendant-Appellant, Robinson Jimenez, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

420 F.3d 111

UNITED STATES of America, Appellee, v. Manuel GONZALEZ, also known as "Luis Enrique Dirocie Bello,"¹ also known as "Tito," Defendant-Appellant, Robinson Jimenez, Defendant.

Docket No. 03-1356.

United States Court of Appeals, Second Circuit.

Argued: March 17, 2004.

Decided: August 22, 2005.

COPYRIGHT MATERIAL OMITTED

Tracy W. Young (Lisa Scolari, on the brief), New York, New York, for Defendant-Appellant.

Roberto Finzi, Assistant United States Attorney (Neil M. Barofsky, Assistant United States Attorney, on the brief), for David N. Kelley, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Before: SACK, SOTOMAYOR, and RAGGI, Circuit Judges.

RAGGI, Circuit Judge.

Defendant-appellant Manuel Gonzalez appeals from a judgment of conviction entered on June 4, 2003, in the United States District Court for the Southern District of New York (John S. Martin, Jr., Judge) based on defendant's guilty plea to a single-count indictment charging a conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, commonly referred to as "crack." See 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846, 851. Gonzalez is presently serving a twenty-year term of incarceration, a downward departure from his 262-to-327 month Sentencing Guidelines range. That incarceratory term was not selected by the district court in the simple exercise of its departure discretion. Rather, the court concluded that its discretion was curbed by the minimum twenty-year prison term mandated by § 841(b)(1)(A) in light of two facts: the quantity of drugs found by the court based on a preponderance of the evidence and Gonzalez's prior New York State felony drug conviction.

On this appeal, Gonzalez does not raise a direct challenge to his sentence. Instead, he asserts that the district court erred in denying his pre-sentence motion to withdraw his guilty plea. Gonzalez argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Thomas, 274 F.3d 655 (2d Cir.2001) (en banc), both decided in the interim between his plea and sentence, obliged the district court to conclude that his guilty plea was not knowing, voluntary, or sufficient to support the crime of conviction because (1) he had not admitted the statutory drug quantity, and (2) he had been misinformed as to his right to have a jury rather than the court determine that quantity.

The government submits that Gonzalez's plea challenge lacks merit because quantity is not an element of a § 841(b)(1)(A) drug offense when, as in this case, a defendant receives a mandatory minimum sentence not in excess of the prescribed maximum for an identical unquantified crime pursuant to § 841(b)(1)(C). Both the structure of § 841 and our prior construction of that statute compel us to reject the government's argument.

Even if the right to trial, as recognized in Apprendi, is violated only by certain sentences, the law cannot reasonably defer identification of the elements of a crime until after a prosecution is concluded. Thus, this court's construction of the quantity provisions of § 841 as "elements" that have to be pleaded and proved to a jury or admitted by the defendant to support conviction on an aggravated drug offense under that statute,² see United States v. Thomas, 274 F.3d at 660, accord United States v. McLean, 287 F.3d 127, 134 (2d Cir.2002); United States v. Outen, 286 F.3d 622, 635-36 (2d Cir.2002); see also Coleman v. United States, 329 F.3d 77, 85-86 (2d Cir.2003), while undoubtedly prompted by Apprendi, is not limited to post hoc review of particular sentences. We here clarify that the statutory drug quantity is an element in all prosecutions of aggravated § 841 offenses.

Although we dedicate considerable space in this opinion to explaining this point, its import on this appeal pertains directly to defendant's guilty plea and only secondarily to his sentence. We conclude that Gonzalez's guilty plea could not support conviction on a § 841(b)(1)(A) conspiracy without an admission to the drug quantity element of such an aggravated offense. Gonzalez made no such admission and, in fact, disputed the statutory quantity. Thus his plea at best supports conviction on a lesser, unquantified drug charge, whose sentencing range is prescribed by § 841(b)(1)(C). Because that sentencing range and the higher ones provided in § 841(b)(1)(A) and -(b)(1)(B) for quantified crack offenses operate as unified and independent wholes, they cannot be deconstructed, as the government here suggests, so that drug quantity operates as an element for purposes of determining an applicable sentencing maximum but as a sentencing factor for purposes of determining the applicable mandatory minimum.

In sum, because drug quantity is an element of the aggravated offense of conviction, we conclude that Gonzalez was misinformed as to his right to have the statutory quantity proved to a jury. For that reason, and because his own allocution failed to provide an adequate factual basis on that element of an aggravated offense, his guilty plea could not be deemed knowing, voluntary, or sufficient to support a judgment of conviction on a § 841(b)(1)(A) charge. The government having refused to accept any lesser disposition of the case — as was its right — Gonzalez's motion to withdraw his plea to a § 841(b)(1)(A) conspiracy should have been granted. We remand this case to the district court with directions that it vacate Gonzalez's conviction, allow him to withdraw his guilty plea, and permit the government to proceed with the prosecution of the charged § 841(b)(1)(A) conspiracy. In doing so, the government may still agree to accept a lesser disposition with Gonzalez pleading guilty to an unquantified drug conspiracy under § 841(b)(1)(C), but, in that case, Gonzalez would be sentenced pursuant to the zero-to-thirty year range of imprisonment prescribed by that section, without regard to any § 841(b)(1)(A) mandatory minimum. See generally United States v. Yu, 285 F.3d 192, 198 (2d Cir.2002).

I. Background

A. The Crack Conspiracy

The conspiracy at issue in this case involved an attempted drug sale on July 16, 1998. On that date, agents of the Drug Enforcement Administration ("DEA") recorded a telephone conversation between one of their confidential informants and Gonzalez in which Gonzalez agreed to sell the informant one kilogram of crack cocaine for $18,000. At a preliminary meeting, Gonzalez provided the informant with a sample of the crack to demonstrate its quality. Subsequent laboratory analysis confirmed the sample to be 0.4 grams of 87% pure cocaine base. Approximately one half-hour after the sample transfer, Gonzalez and the informant participated in another recorded telephone conversation and agreed to consummate their kilogram transaction later that same evening.

Around 8:30 p.m. on July 16, 1998, Gonzalez arrived at the appointed Manhattan meeting site in a car driven by co-defendant Robinson Jimenez. As soon as Gonzalez showed the informant a small bag containing what appeared to be a quantity of crack, the informant gave a pre-arranged signal to DEA surveillance agents. When the agents moved forward, however, Gonzalez and Jimenez fled the scene, thereby avoiding both arrest and seizure of the proffered drugs.

The two men were, in fact, arrested on August 11, 1998, at which time Jimenez made inculpatory oral and written statements acknowledging his own awareness that the July 16, 1998 deal had been for a kilogram of crack cocaine. On August 25, 1998, a federal grand jury named Gonzalez and Jimenez in a single-count indictment charging a conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846.³

B. Gonzalez's Guilty Plea

On April 14, 1999, Gonzalez pleaded guilty to the indictment, while specifically disputing the quantity of drugs involved in the charged conspiracy. Earlier that same day, the government had filed a prior felony information pursuant to 21 U.S.C. § 851 based on Gonzalez's 1997 New York State conviction for the attempted sale of four ounces of cocaine to an undercover officer. The effect of the filing was significant. If Gonzalez were convicted and sentenced for conspiring to traffic in fifty grams or more of crack pursuant to 21 U.S.C. § 841(b)(1)(A), as charged in the indictment, the prior felony information would raise his statutory sentencing range from a minimum ten-years-to-life imprisonment to a minimum twenty-years-to-life imprisonment. Before the district court, Gonzalez's counsel complained that the government's purpose in filing the prior felony information was to retaliate against her client for rejecting a plea agreement that would have required him to stipulate to a drug quantity that, under the Sentencing Guidelines, would expose him to approximately twelve and a half years' incarceration. Counsel emphasized that her client wished to challenge the charged drug quantity because of the "tremendous" impact that factor could have on the likely term of incarceration. Plea Tr. at 2. Thus, Gonzalez proposed to plead guilty to conspiring to distribute only the 0.4-gram crack sample, a quantity that, under then-applicable law, would keep him within the parameters of § 841(b)(1)(C) and expose him to a Guidelines sentence of approximately two years. Compare U.S.S.G. § 2D1.1(c) (Level 36 for at least 500 grams but less than 1.5 kilograms of cocaine base) with id. (Level 14 for at least 250 but less than 500 milligrams of cocaine base). He specifically declined to plead guilty to conspiring to distribute the charged fifty grams or more of crack, explaining, through counsel, that he had never intended to sell the informant a kilogram of real crack. Instead, his intent was to defraud his customer by having him pay for real crack while supplying him with a...