U.S. v. Norris, 04-15487.

• Decision Date: 23 June 2006
• Docket Number: No. 04-15487.,04-15487.
• Citation: 452 F.3d 1275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George W. NORRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

452 F.3d 1275

UNITED STATES of America, Plaintiff-Appellee, v. George W. NORRIS, Defendant-Appellant.

No. 04-15487.

United States Court of Appeals, Eleventh Circuit.

June 23, 2006.

COPYRIGHT MATERIAL OMITTED

Carlos Fernando Gonzalez, Arnstein & Lehr, LLP, Miami, FL, for Norris.

Todd S. Aagaard, U.S. Dept. of Justice, Washington, DC, Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and KRAVITCH, Circuit Judges, and STROM^*, District Judge.

STROM, District Judge:

Appellant, George Norris, appeals the seventeen-month (17) sentence imposed by the district court after he pled guilty to a multi-count indictment charging him with conspiring to import and importing plant specimens in violation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, as implemented by the Endangered Species Act of 1973, 16 U.S.C. §§ 1531, et seq. Norris challenges the district court's interpretation of the term "market value of the plants" in § 2Q2.1 of the United States Sentencing Guidelines and also contends that the district court violated his Sixth Amendment rights under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I.

A. Regulatory Background

The United States and Peru are signatories to the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("the CITES"). Mar. 3, 1973, 27 U.S.T. 1087. Congress implemented the CITES into U.S. law in the Endangered Species Act of 1973 ("the ESA"), 16 U.S.C. §§ 1531, et seq. The ESA makes it unlawful to "engage in any trade in any specimens," or "possess any specimens traded," contrary to the provisions of the [CITES] and authorizes the Secretary of the Interior to promulgate regulations to enforce the ESA. 16 U.S.C. §§ 1538(c)(1) and 1540(f). The CITES regulates the trade of those endangered species of fish, wildlife, and plants listed in its appendices. See CITES, art. II, 27 U.S.T. at 1092. The degree of trade regulation under CITES depends on the appendix in which a specimen is listed. Id. This case concerns the importation of orchids in the genus Phragmipedium, which are listed in Appendix I of the CITES ("Appendix I plants"), and orchids in the Family Orchidaceae, which are listed in Appendix II of the CITES ("Appendix II plants"). See generally CITES, Apps. I and II. To import Appendix I plants into the United States, an importer must obtain (1) a valid export permit from the country of origin and (2) a valid import permit from the United States Fish and Wildlife Service ("USFWS"). See CITES, art. III at 1093-95; 50 C.F.R. § 23.12(a)(1)(i). To import Appendix II plants into the United States, an importer must obtain a valid export permit from the country of origin. See CITES, art. IV at 1095-97; 50 C.F.R. § 23.12(a)(2)(i). The documentation accompanying a shipment of CITES-protected plants must, inter alia, "plainly and correctly bear on the outer container or on a tag, invoice, packaging list, or other document accompanying the plant . . . [the] genus and species, and quantity of each [plant]." See 7 C.F.R. § 355.20(a).

B. Factual Background

On March 11, 2004, a federal grand jury returned an eight-count indictment against George Norris, a resident of Texas, and his co-conspirator, Manuel G. Arias Silva ("Arias"), a resident of Peru. Count I alleged that Norris and Arias conspired to import unlawful merchandise into the United States, in violation of 18 U.S.C. § 545, to make false statements to federal customs and plant inspectors, in violation of 18 U.S.C. § 1001(a), and to trade in specimens and possess specimens contrary to the provisions of the CITES and the ESA, in violation of 16 U.S.C. § 1538(c)(1). Count I sets out the manner and means of the conspiracy as follows: (1) Arias caused orchids to be shipped to the United States from Peru without a valid CITES export permit from the country of origin. Specifically, Arias obtained CITES permits for particular species of orchids that were identified on the permit as being artificially propagated. Arias, at the instruction of Norris, then substituted and exported orchids that were different species than those authorized for export on the permits and/or not artificially propagated; (2) Arias and Norris caused false labels to be placed on the orchids in order to conceal the fact that the plants were not authorized for export by the accompanying permits; (3) Arias provided a code or "key" to Norris that would provide a means for deciphering the false labels and identifying the true species of the orchids; and (4) that Norris offered for sale and sold CITES-protected orchids received from Arias.

Count I also recounts a number of overt acts undertaken by Norris and Arias in furtherance of the conspiracy. These overt acts included (1) a series of written communications between Norris and Arias wherein they discussed, at length when, where, and how to import CITES-protected plants into the United States without detection; (2) Arias' shipping of approximately 1,145 orchids to Norris on or about February 12, 2003, containing 45 Phragmipediums and at least 445 Appendix II orchids; and (3) Arias' shipping of approximately 700 orchids to Norris on or about August 19, 2003, containing an undisclosed number of Phragmipediums and several Appendix II orchid species.

Counts II-IV of the indictment charged Norris and Arias with smuggling, in violation of 18 U.S.C. § 545, by illegally importing CITES-protected orchids contrary to the CITES and the ESA in May 2002, February 2003, and August 2003. Specifically, Count II alleged that Norris illegally imported Phragmipedium specimens in May 2002; Count III alleged that Norris illegally imported at least 45 Phragmipedium specimens and at least 445 specimens of various Appendix II orchids in February of 2003; and Count IV alleged that Norris imported approximately 700 orchids that included Phragmipedium specimens and several Appendix II orchid species in August of 2003.

Counts V-VI alleged that Norris violated 18 U.S.C. § 545 by facilitating the transportation and sale of merchandise that he knew to have been imported contrary to law and with selling orchids from the February 2003 and August 2003 shipments. Count VII accused Norris and Arias of making false statements, in violation of 18 U.S.C. § 1001(a), by causing the February 2003 shipment to be shipped with an invalid CITES permit and false labeling. Count VIII presented a false statement charge against Arias that did not involve Norris.

On June 18, 2004, Norris pled guilty to the charges in the indictment without a plea agreement. The presentence investigation report ("PSR") assessed a base level of 6 pursuant to § 2Q2.1(a) of the United States Sentencing Guidelines ("the Guidelines" or "U.S.S.G") and recommended, inter alia, an 8-level enhancement under §§ 2Q2.1(b)(3)(A)(ii) and 2B1.1(b)(1)(E) because the market value of the shipments exceeded $70,000.

Norris objected to the PSR contending, inter alia, that the probation officer's assessed market value of the orchids was erroneous and that it resulted in an increased sentence in violation of his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Specifically, Norris contended that the probation officer's assessed market value was erroneous because it was based on the market value of the orchid shipments in their entirety, rather than on the market value of the orchids that had been undocumented in the CITES permits accompanying each shipment. Norris also filed a motion for downward departure based upon his good works, community support, advanced age, and poor health.

At the sentencing hearing, held on October 5, 2004, Norris renewed his objection to the PSR's calculation of the market value of the orchids under § 2Q2.1(b)(3), contending that the market value of his offense should be based solely on the market value of the undocumented orchids in the CITES permits because that was the only actual criminal conduct at issue. The government, on the other hand, argued that each shipment in its entirety should be valued, including the correctly documented plants, because the false and misleading CITES permit for each shipment rendered the entire shipment illegal. The parties thereafter filed a joint exhibit wherein they stipulated (1) that the retail value of the shipments under the government's valuation theory was $86,947 (corresponding to an 8-level increase under §§ 2Q2.1(b)(3)(A)(ii) and 2B1.1(b)(1)(E)) and (2) that the retail value of the shipments under Norris' theory was $44,703 (corresponding to a 6-level increase under §§ 2Q2.1(b)(3)(A)(ii) and 2B1.1(b)(1)(E)).

After considering the Guidelines and each party's valuation theory at length, the district court, in agreeing with the government, concluded that the false and misleading CITES permits rendered the entire shipments illegal and, therefore, that the appropriate market value to be considered under § 2Q2.1(b)(3)(A) was the market value of each shipment in its entirety. The district court imposed a sentence of seventeen (17) months imprisonment, two years of supervised release, and a $700 special assessment. The district court stated that it would have imposed the same sentence if the Guidelines were advisory. Norris appealed.

II.

The central issue presented for review in this case is whether the district court misinterpreted § 2Q2.1 of the Guidelines in basing the market value of Norris' offense on the value of the shipments in their entirety and not just on the value of the undocumented orchids within each shipment. This issue is one of first impression in this and other circuits. For reasons set forth below, we conclude that "market value" under § 2Q2.1 of the Guidelines should include the value of the entire shipment where the customs documentation was false and misleading and...