U.S. v. Ponce
| Citation | 51 F.3d 820 |
| Decision Date | 27 March 1995 |
| Docket Number | 93-50748,94-50075,94-50181,Nos. 93-50734,CASTILLON-ALVAREZ,s. 93-50734 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carlos Tapia PONCE, aka Carlos Perez, Ricardo Lopez Mateos, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Romero McTAGUE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Hector Tapia ANCHONDO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Hugo Fernando, aka Hugo Fernando Castillon, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mauricio MONROY, Defendant-Appellant. , and 94-50293. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Joseph Abraham, Jr., El Paso, TX (on the briefs), for defendant-appellant Carlos Tapia Ponce.
Michael Pancer, San Diego, CA, for defendant-appellant James McTague.
David Z. Chesnoff, Goodman & Chesnoff, Las Vegas, NV, for defendant-appellant Hector Anchondo.
Marlene Gerdts, Beverly Hills, CA, for defendant-appellant Hugo Castillon-Alvarez.
Vicki I. Podberesky, Nasatir, Hirsch & Podberesky, Santa Monica, CA, for defendant-appellant Mauricio Monroy.
James P. Walsh, George S. Cardona, and Ronald L. Cheng (on the briefs), Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee.
Appeals from the United States District Court for the Central District of California.
Before: FARRIS, POOLE, and KOZINSKI, Circuit Judges.
Ponce, McTague, and Monroy appeal their sentences imposed on remand after this court vacated their original sentences for conspiracy and possession of cocaine with intent to distribute. Anchondo and Castillon appeal their convictions following a trial on similar charges. Castillon also appeals his sentence.
On September 28, 1989, law enforcement agents executed a search warrant on a warehouse located in Sylmar, California. Inside, the agents found cardboard boxes containing approximately 21.4 tons of cocaine. With a street value of $6.9 billion, it was the largest known cocaine seizure in world history.
Subsequent investigation revealed that Carlos Tapia Ponce, James McTague, and others began transporting large quantities of marijuana from El Paso to Dallas in 1983. The organization moved into the cocaine distribution business around 1985. The cocaine was flown by the Medellin cartel from Colombia to Chihuahua, Mexico, and then stored in Juarez, Mexico.
The organization had on its payroll several American employees who worked at the El Paso border crossing. With their assistance, the cocaine was trucked into the United States, where it was stored at several El Paso locations. From El Paso, the cocaine was hidden in secret compartments of tractor-trailers and shipped in multi-ton deliveries to the Sylmar warehouse near Los Angeles. The organization then sold the cocaine to various customers and sent the proceeds to Colombia.
Authorities estimate that the organization moved over 250 tons of cocaine between 1987 and 1989. Ledgers seized at the warehouse indicate that during the three-month period from June to September 1989, the Sylmar warehouse received 77 tons of cocaine and handled over $81 million in cash.
The organization was highly sophisticated and well equipped. In addition to maintaining border checkpoint surveillance, the organization used technically advanced anti-eavesdropping equipment, mail drops, pagers and cellular phones, and coded ledgers and communications.
Ponce was the patriarch of the family smuggling business and oversaw its general operation. He recruited his two sons, Hector Tapia Anchondo and Carlos Tapia Anchondo, as well as his sons-in-law McTague and Mauricio Monroy, and the organization's principal driver, Gilbert Mendoza. Ponce managed the El Paso side of the business, while McTague ran the Los Angeles operation.
Ponce, McTague, and Monroy were tried and convicted on all counts in a seven-week trial that ended in November 1990. The district court sentenced Ponce and McTague to life imprisonment. Monroy received a 420-month sentence. We affirmed the convictions, but vacated the sentences and remanded for resentencing. On remand, the district court again sentenced Ponce and McTague to life imprisonment. Monroy was sentenced to 405 months in custody. All three again appeal their sentences.
Hugo Castillon and Hector Tapia Anchondo were tried together in late 1992 and convicted on all counts. Anchondo was sentenced to 365 months imprisonment; Castillon received 327 months. Both appeal their convictions. Castillon also appeals his sentence.
On April 1, 1993, we vacated Ponce, McTague, and Monroy's original sentences in a memorandum disposition on the ground that the district court had improperly departed upward for the quantity of drugs involved. United States v. Ponce, 990 F.2d 1264 (9th Cir.1993). Following United States v. Martinez, 946 F.2d 100 (9th Cir.1991), we held that the upward departures were improper because the base offense level already reflected the quantity of drugs. We remanded for resentencing.
Prior to the November 1989 amendments to the Guidelines, the largest cocaine quantity recognized for sentencing purposes was 50 or more kilograms. U.S.S.G. Sec. 2D1.1 (1988). With a base offense level of 36, neither Ponce and McTague's life sentences nor Monroy's
405-month sentence were available without upward departures. The district court clearly felt that the Guidelines' ranges were too lenient under the circumstances and departed upward on several grounds. Ponce, McTague, and Monroy challenge each of the district court's upward departures.
Ponce and McTague argue that the district court was bound by its earlier criminal history category and role-in-the-offense determinations. Similarly, Monroy contends that the de novo resentencing violated his due process and double jeopardy protections.
Where a sentence exceeds the district court's authority, our practice is to vacate the entire sentence and remand for resentencing. United States v. Caterino, 29 F.3d 1390, 1395-96 (9th Cir.1994); see also United States v. Pimentel, 34 F.3d 799, 800 (9th Cir.1994). Subsequent appellate panels "presume that this general practice was followed unless there is clear evidence to the contrary." Caterino, 29 F.3d at 1395. On remand, the district court may consider any matter relevant to the sentencing. Id. (). A district court may not, however, begin anew following a limited remand. Caterino, 29 F.3d at 1394. The propriety of the district court's de novo sentencings on remand therefore turns on whether "the district court's authority was abridged by any express or implied limits in the remand order." Id.
The critical language in the memorandum disposition reads: Had the court sought to limit the scope of the district court's authority on remand, it could easily have done so. Instead, the court stated that the sentences were to be "recalculated." This language does not amount to "clear evidence" of a limited remand. Caterino, 29 F.3d at 1395. The district court did not err in resentencing Ponce and McTague without regard to its previous determinations.
Monroy contends that the resentencing violated the Double Jeopardy Clause. This argument was rejected in Caterino. "[A] prisoner 'has no legitimate expectation of finality in the original sentence when he has placed those sentences in issue by direct appeal and has not completed serving a valid sentence.' " Id. at 1397 (quoting United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir.1987)).
Monroy also asserts a due process argument. In the context of resentencing, the Due Process Clause prohibits courts from: (1) increasing a sentence as punishment for pursuing a successful appeal; or (2) refusing to credit a defendant for time served pursuant to the original conviction or sentence. See generally North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Monroy does not cite, nor did we locate, any authority for the proposition that due process is violated where a court reexamines all aspects of a sentence following a successful appeal of a prior sentence and a general remand. We reject Monroy's due process argument.
Guidelines Sec. 3B1.1 permits a four-level enhancement if the defendant was an "organizer or leader" of illegal activity. A district court's determination that a defendant was an "organizer or leader" is reviewed for clear error. United States v. Monroe, 943 F.2d 1007, 1019 (9th Cir.1991), cert. denied, 503 U.S. 971, 112 S.Ct. 1585, 118 L.Ed.2d 304 (1992). The district court need not make specific findings of fact in support of an upward role adjustment. United States v. Rigby, 896 F.2d 392 (9th Cir.1990).
In the first sentencing proceeding, the district judge followed the recommendation in the Presentence Report and found that a three-level upward adjustment was warranted The factors to be considered when determining whether a defendant was an organizer or leader include: the exercise of decisionmaking authority, the nature of the offense and the defendant's participation in the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, and the degree of control and authority exercised over others. U.S.S.G. Sec. 3B1.1, comment. (n.4); see also United States v. Hernandez, 952 F.2d 1110, 1119 (9th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 334, 121 L.Ed.2d 252 (1992); United States v....
To continue reading
Request your trial
-
US v. Frega
...to consider in determining whether an individual was an organizer or leader point to an enhancement for Frega. See United States v. Ponce, 51 F.3d 820, 827 (9th Cir.1995) (identifying factors). Certainly there is evidence that Frega was the scheme's central actor, having bankrolled it, prof......
-
U.S. v. W.R. Grace
...judge has wide discretion in deciding a motion to sever, and such decisions will seldom be disturbed on appeal. United States v. Ponce, 51 F.3d 820, 831 (9th Cir.1995). The Ninth Circuit has characterized the scope of review as "extremely narrow," see United States v. Mariscal, 939 F.2d 884......
-
United States v. Washington
...judge has wide discretion in deciding a motion to sever, and such decisions will seldom be disturbed on appeal. United States v. Ponce, 51 F.3d 820, 831 (9th Cir.1995). The Ninth Circuit has characterized the scope of review as “extremely narrow,” see United States v. Mariscal, 939 F.2d 884......
-
U.S. v. Quintieri
...975, 117 S.Ct. 411, 136 L.Ed.2d 324 (1996); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir.1992) (same); United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995) (same); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.) (same), cert. denied, 502 U.S. 879, 112 S.Ct. 225, 116......
-
Computer crimes.
...for "documentary evidence pertaining to the sale and distribution of controlled substances"). (306.) See, e.g., United States v. Ponce, 51 F.3d 820 (9th Cir. 1995) (affirming admission of printout made from computer disk seized in search because disk from which printout was made contained d......
-
Computer crimes.
...States v. Sissler, No. 1:90-CR-12, 1991 WL 239000, at *4 (W.D. Mich. Aug. 30, 1991) (same). (67.) See, e.g., United States v. Ponce, 51 F.3d 820 (9th Cir. 1995) (affirming admission of printout made from computer disk seized in search because disk from which printout was made contained drug......