U.S. v. Mendes

Citation912 F.2d 434
Decision Date28 August 1990
Docket NumberNo. 89-4070,89-4070
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Derek Aragon MENDES, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Ronald J. Yengich (Earl Xaiz of Yengich, Rich, Xaiz & Metos, Salt Lake City, Utah, with him on the brief) of Yengich, Rich, Xaiz & Metos, Salt Lake City, Utah, for defendant-appellant.

Dee V. Benson (Bruce D. Lubeck, Asst. U.S. Atty., with him on the brief), U.S. Atty., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, TACHA, Circuit Judge, and VAN BEBBER, District Judge. *

TACHA, Circuit Judge.

Defendant Derek Mendes appeals his conviction for possession with intent to distribute cocaine and heroin, 21 U.S.C. section 841(a), and raises various constitutional challenges to his ten-year minimum mandatory sentence imposed pursuant to 21 U.S.C. section 841(b)(1)(B). We affirm.

I.

This case arises out of an FBI investigation of a three-person drug trafficking operation headed by Mendes and located in West Jordan, Utah. After an FBI informant made controlled purchases of heroin from Mendes's assistants, Michael Gallegos and Jesus Lopez, the FBI obtained arrest warrants for Mendes, Gallegos, and Lopez, and a search warrant for Mendes's home. On December 2, 1986, FBI agents and state and local law enforcement officers attempted to execute the warrants. The officers went to Mendes's residence in West Jordan, but the only persons at home were two teenagers, who told the officers that Mendes had left the night before to go to an apartment with Gallegos, Lopez, and three unknown women. While some officers continued to search the Mendes residence, other officers left to look for Mendes, Gallegos, and Lopez at a nearby apartment complex where the officers knew that Lopez lived. 1 Along the way to the apartment, the officers learned that a third group of officers had just arrested Gallegos at a laundromat near the apartment complex and found a key to apartment number 38 in Gallegos' pocket during a search of Gallegos incident to his arrest. When both groups of officers arrived at the apartment complex, they saw cars in the parking lot that FBI agents had previously seen Mendes and Lopez drive. The officers used the key taken from Gallegos to enter the apartment, and inside they found Mendes and Lopez, along with Lopez's wife and two children. On a kitchen table in plain view were .3 grams of cocaine, a razor blade, and a rolled up twenty dollar bill. Mendes and Mrs. Lopez were seated at this table when the officers entered the apartment. During a protective sweep of the apartment, an FBI agent observed a small safe and a set of scales inside a bedroom closet.

After taking the occupants of the apartment into custody, the officers secured the apartment and obtained a search warrant. When FBI agents executed the search warrant, they seized 800 grams of cocaine of 92% purity and 124 grams of black tar heroin of 47% purity from the apartment.

Mendes, Gallegos, and Lopez were indicted on December 10, 1986. Gallegos and Lopez entered guilty pleas to various drug offenses. Mendes opted for a jury trial. On March 27, 1987, a jury convicted Mendes on all three counts of the indictment: (1) conspiracy to distribute controlled substances and conspiracy to possess with intent to distribute; (2) aiding and abetting the distribution of controlled substances; and (3) possession with intent to distribute controlled substances. On November 17, 1987, the district court sentenced Mendes to 40 months incarceration. On November 23, Mendes filed a notice of appeal. Seven months later on June 1, 1988, the government requested a writ of mandamus 2 from this court on the narrow grounds that 21 U.S.C. section 841(b)(1)(B) required the district court to impose a minimum sentence of five years, enhanced to a minimum of ten years because of Mendes's prior felony drug conviction. Before we heard oral argument on the government's request for a writ of mandamus, Mendes withdrew his November 23 notice of appeal. 3 We granted the writ, concluding that Mendes fell within the sentencing enhancement provision of 21 U.S.C. section 841(b)(1)(B) because he constructively possessed the 800 grams of cocaine and 124 grams of heroin found in the apartment. See United States v. Jenkins, 866 F.2d 331, 334-35 (10th Cir.1989). We remanded to the district court with instructions to initiate proceedings under former Federal Rule of Criminal Procedure 35 4 to conform Mendes's sentence to comply with the mandatory language of section 841(b)(1)(B). Id. at 335.

The district court resentenced Mendes to a ten year mandatory term of incarceration on May 11, 1989. Mendes filed a second notice of appeal on May 15, 1989 challenging both his new sentence and his earlier conviction on the third count of the indictment, possession with intent to distribute controlled substances.

II.

The first question before us is whether we have jurisdiction to hear Mendes's attack on his conviction on count three of the indictment. To resolve this question we must address the finality of the district court's November 17 judgment. We hold that the judgment was final and that Mendes's appeal of his conviction--though not his sentence--is untimely.

Section 1291 of title 28 of the United States Code provides that federal courts shall have jurisdiction over appeals from all final decisions of the district courts. See 28 U.S.C. Sec. 1291. In criminal cases the final judgment rule prohibits appellate review until after conviction and imposition of sentence. See Midland Asphalt Corp. v. United States, 489 U.S. 794, ----, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989). It is undisputed that the November 17 judgment included both conviction and (albeit erroneous) sentence. The November 17 judgment is therefore facially "final."

Mendes contends that the November 17 judgment was not final because it contained an illegal sentence. This contention is meritless. Under Mendes's reasoning, an erroneous or illegal sentence would never be final and we could never assume jurisdiction over an appeal from that illegal sentence to correct the illegality. Yet the correction of such errors is the fundamental purpose of appeal. Mendes has confused finality with correctness. We reject the contention that an illegal sentence renders a judgment nonfinal for purposes of appeal.

Mendes also contends that our grant of a writ of mandamus undermined the finality of the November 17 judgment. We disagree. Our grant of the writ did not render the November 17 judgment nonfinal; the judgment still remained a final order of the district court. Rather, our writ required the district court to issue a new order resentencing Mendes in accordance with law. The new order by the district court merely superseded the illegal sentence contained in the first judgment. It did not reopen the first judgment to further proceedings.

An analogy to appeal is instructive. See Moses H. Cone Memorial Hosp. v. Mercury Constr. Co., 460 U.S. 1, 8, 103 S.Ct. 927, 932, 74 L.Ed.2d 765 (1983) (mandamus and appeal are different forms of appellate review). The grant of remand on appeal does not reopen the order appealed from; instead, remand commences a new proceeding which will ultimately terminate in another final order. The first final order cannot be challenged in an appeal of the second final order. See 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure Sec. 3901, at 1 (Supp.1990) (there is no right to take a second appeal from the same judgment of the district court after the first appeal has been determined). Such is the case here. When Mendes withdrew his November 23 notice of appeal, he abandoned the issues concerning his conviction raised by that appeal. See Yates v. United States, 308 F.2d 737, 738 (10th Cir.1962) (where no appeal taken from earlier judgment of conviction, later appeal from an order revoking probation and imposing sentence cannot reach back and challenge conviction). Consequently, Mendes is foreclosed from attacking his conviction in his later appeal from the district court's second order resentencing him in accordance with our writ. See id. at 738. Any other interpretation would undermine the doctrine of finality and lead to endless relitigation of issues previously resolved. The effect of our writ was to leave the finality of the district court's November 17 judgment intact while stripping a portion of the judgment, the erroneous sentence, of its validity. The sentencing portion of the first judgment was then superseded by the district court's second order, which is also a final, appealable order.

Accordingly, we hold that the November 17 judgment was final and appealable. By withdrawing his November 23 notice of appeal, Mendes has waived his right to appeal issues conclusively established by that judgment, in this case his conviction on count three of the indictment. Mendes's second notice of appeal, filed after the district court's resentencing, is timely, and we may consider his challenges to the validity of the sentence imposed by the second order.

III.

Mendes contests the district court's May 11, 1989 order resentencing him in accordance with the provisions of 21 U.S.C. section 841(b)(1)(B).

Section 841(b)(1)(B) provides that persons who knowingly or intentionally possess with intent to distribute:

(i) 100 grams or more of a mixture or substance containing a detectable amount of heroin;

(ii) 500 grams or more of a mixture or substance containing a detectable amount of ...

(II) cocaine ...

shall be sentenced to a term of imprisonment which may not be less than 5 years.... If any person commits such a violation after one or more prior convictions for an offense punishable under this paragraph, or for a felony under any other provision of this subchapter or subchapter II of this chapter or other law of a state, the United States, or a foreign country relating to [controlled substances] ... such person shall...

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