U.S. v. Rodriguez, s. 91-5455

• Decision Date: 13 November 1992
• Docket Number: Nos. 91-5455,91-5494 and 91-5751,s. 91-5455
• Citation: 975 F.2d 999
• Parties: UNITED STATES of America, v. Miguel Angel RODRIGUEZ, Miguel Rodriguez, Appellant in 91-5455, Tony Anderson, Appellant in 91-5494, Francisco C. Martinez, a/k/a Francisco Collazo, Francisco Collazo-Martinez, Appellant in 91-5751.
• Court: U.S. Court of Appeals — Third Circuit

Page 999

975 F.2d 999

61 USLW 2219

UNITED STATES of America, v. Miguel Angel RODRIGUEZ, Miguel Rodriguez, Appellant in

91-5455,

Tony Anderson, Appellant in 91-5494,

Francisco C. Martinez, a/k/a Francisco Collazo,

Francisco Collazo-Martinez, Appellant in 91-5751.

Nos. 91-5455, 91-5494 and 91-5751.

United States Court of Appeals, Third Circuit.

Argued March 31, 1992.

Decided Sept. 18, 1992.

Rehearing Denied Nov. 13, 1992.

Michael Chertoff, U.S. Atty., Edna B. Axelrod, Asst. U.S. Atty., Jose P. Sierra (argued), Asst. U.S. Atty., U.S. Dept. of Justice, Newark, N.J., for appellee.

Chester M. Keller (argued), Asst. Federal Public Defender, Newark, N.J., for appellant Miguel Rodriguez.

Rena Rothfeld (argued), Livingston, N.J., for appellant Tony Anderson.

Patrick A. Mullin, Hackensack, N.J., for appellant Francisco Collazo-Martinez.

Before: BECKER, COWEN and ROTH, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge.

In these consolidated appeals from judgments in a criminal case, Miguel Rodriguez, Tony Anderson, and Francisco Collazo-Martinez challenge their sentences. Appellants contend primarily that the district court erred in finding that the boric acid and cocaine in the packages which they attempted to sell constituted a drug "mixture" under the note to Section 2D1.1(c) of the Sentencing Guidelines, a decision that required the court to use the entire weight of the contents of the packages when it set the appellants' base offense levels. Because we hold that the contents of the packages were not a "mixture" under the plain meaning of that term, we will vacate the sentences imposed and remand for resentencing.

I. Facts and Procedural Background

The facts of this case are not in dispute. On September 17, 1990, federal Drug Enforcement Agency ("DEA") agents accompanied by officers from the Middlesex County Prosecutor's Office arrested appellants Rodriguez and Anderson together with Dennis De Los Santos after a DEA informant attempted to buy three one kilogram packages of cocaine from them at the Chester Circle Apartments in New Brunswick, New Jersey. The sting operation followed a number of contacts between DEA undercover agents and those arrested. Two days later, appellant Collazo-Martinez and Roman Rosado were also arrested as parties to a conspiracy to distribute the cocaine seized from Rodriguez, Anderson, and De Los Santos.

The government's laboratory analysis revealed that the contents of the three packages seized in the sting operation were not what the DEA agents expected. The packages contained in total 65.1 grams of cocaine and 2,976 grams of boric acid, rather than the 3,000 grams of cocaine the agents sought to purchase. ¹ The laboratory report and testimony of the government's forensic chemist revealed how the packages were constructed. A compressed block of boric acid formed the base and approximately ninety-seven percent of the weight of the packages. The compressed boric acid blocks were covered on top by a piece of yellow tape. A thin layer of cocaine was then spread on the surface of the tape. In each brick, cocaine was also placed into a triangular hole or window that had been dug into the compressed boric acid just below the yellow tape. Finally, the bricks were wrapped in plastic and brown paper.

In essence, the brick-like packages were constructed in an effort to fool an unsuspecting customer--in this case a federal drug agent--into thinking that they were comprised wholly of cocaine. A buyer could observe the cocaine which covered the top surface and, if he so desired, could sample the cocaine which was placed into the triangular hole or window dug into the boric acid block. The bottom and sides of the packages were covered by the wrapping to keep a prospective purchaser from observing the true nature of their contents. ²

The government chemist also testified that the boric acid and cocaine in the packages had distinct colors and could be distinguished by the naked eye. The cocaine found on the surface of the tape and in the triangular hole was white while the boric acid was off white. The chemist advised, moreover, that boric acid is not a controlled substance. A. 29.

In post arrest statements they made separately after being advised of their Miranda rights, both Rodriguez and Anderson admitted their involvement in a scheme to pass off these three one kilogram packages as three kilograms of cocaine. According to Rodriguez, "the whole idea was to rip off the American customer for $105,000. The cocaine was placed in the windows so that the Americans could see that it was cocaine." ³ A 47. Rodriguez said that two Dominicans, who provided him with the three packages, had offered to pay him and two other persons $500 each to consummate the sale.

In describing his involvement in the scheme, Anderson related that the person orchestrating the transaction had offered part of the $500 he was to receive from the Dominicans if Anderson would help out as a translator. ⁴ Anderson said he negotiated the cocaine transaction with the English-speaking customers. Anderson stated that he believed that the three packages, which he had first seen on the street two days prior to the sale, were not cocaine. Anderson added that the person who was responsible for the sale had received the three packages from two Dominicans from New York. Finally, Anderson admitted carrying a loaded .38 caliber handgun to the parking lot where the drug sale was to have occurred.

As part of its case at trial, the government read these post arrest statements into the record. Defendant Collazo-Martinez made no statement after his arrest.

On September 24, 1990, a grand jury sitting in the United States District Court for the District of New Jersey returned an indictment against the defendant-appellants. Rodriguez, Anderson, and De Los Santos were charged on four counts: (1) conspiracy to distribute three kilograms of cocaine in violation of 21 U.S.C. § 846; (2) possession with the intent to distribute three kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1); (3) using a telephone to facilitate a conspiracy to distribute three kilograms of cocaine in violation of 21 U.S.C. § 843(b); and (4) using and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). Collazo-Martinez and Rosado were charged on the conspiracy count and on the count alleging phone use in furtherance of the conspiracy.

On the eve of trial, the government attempted to enter into plea agreements with Rodriguez, Anderson, and Collazo-Martinez. Rodriguez was willing to plead guilty to a cocaine conspiracy involving three kilograms of cocaine, the first count of the indictment, in exchange for the dismissal of the remaining counts including the gun possession charge. Anderson also reached an agreement with the government. He agreed to plead guilty to a conspiracy count and the gun possession charge in exchange for the dismissal of his remaining charges but only on the condition that the superseding indictment would leave unspecified the amount of cocaine involved in the conspiracy. Anderson wanted the sentencing court to determine for itself the amount of cocaine involved. ⁵ Although Rodriguez and Anderson stood ready to accept the government's plea offer, having signed the offers and Rule 11 applications, the government withdrew its deal when co-defendant Collazo-Martinez refused to plead. Even though counsel for Rodriguez and Anderson claimed that they were never so informed, the government asserted that the plea agreements were part of a package deal. Without agreements, Rodriguez and Anderson proceeded to trial with Collazo-Martinez. ⁶

At trial, a jury convicted Rodriguez on the drug conspiracy and the two related drug charges but acquitted him on the gun charge. The jury convicted Anderson on the conspiracy and possession charges as well as on the gun charge but acquitted him on the charge of using a telephone to facilitate the conspiracy. The jury convicted Collazo-Martinez of conspiracy and phone use in furtherance thereof, the two counts on which he was charged. After returning the verdicts, the jury received a special interrogatory asking whether the conspiracy involved less than one hundred or more than three thousand grams of cocaine. ⁷ After further deliberations, the jury answered that the conspiracy involved more than three kilograms of cocaine.

At sentencing, after extensive argument, the district court reluctantly accepted the recommendation of the probation department that the boric acid and cocaine in the three packages constituted a "mixture" containing a controlled substance under U.S.S.G. § 2D1.1(c) n.*. ⁸ For that reason the court used the entire weight of the contents of the three packages rather than the weight of the cocaine actually found in them when it set the base offense levels for the defendants' sentences. As the combined weight of the two substances exceeded 2,000 grams, but was less than 3,500 grams, the trial judge set the defendants' base offense levels at 28. U.S.S.G. § 2D1.1(c)(8) (Nov.1990). Following the probation department's recommendation, the court gave Rodriguez a four level increase for his role as an organizer of a criminal activity that involved five or more people. U.S.S.G. § 3B1.1(a). The probation department deemed none of the defendants eligible for a two level reduction for acceptance of personal responsibility under U.S.S.G. § 3E1.1. The court accepted the recommendation of the probation department to deny these reductions but acknowledged the difficulty of its decision, given that Rodriguez and Anderson had attempted to enter guilty pleas prior to trial.

Rodriguez' guideline imprisonment range was 121 to 151 months based on a total offense level of 32 and no criminal history. He received concurrent 144 month sentences on the drug conspiracy and possession convictions together with a 48 month concurrent sentence on the conviction for using a phone...