United States v. Guerrero, 021116 FED2, 14-4120

Docket Nº:14-4120
Opinion Judge:WESLEY, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA, Appellee, v. ANTONIO GUERRERO, aka Tony, Defendant-Appellant.[*]
Attorney:Jeffrey M. Brandt, Robinson & Brandt, P.S.C., Covington, KY, for Defendant-Appellant. Laurie A. Korenbaum, Assistant United States Attorney (Michael D. Maimin, Justin Anderson, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of...
Judge Panel:Before: Kearse, Straub, and Wesley, Circuit Judges.
Case Date:February 11, 2016
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

UNITED STATES OF AMERICA, Appellee,

v.

ANTONIO GUERRERO, aka Tony, Defendant-Appellant. [*]

No. 14-4120

United States Court of Appeals, Second Circuit

February 11, 2016

Argued: November 17, 2015

Appeal from the United States District Court for the Southern District of New York (Sweet, J.). Defendant-Appellant Antonio Guerrero was convicted after a jury trial of two counts of intentional murder while engaged in a drug trafficking offense, in violation of 21 U.S.C. § 848(e)(1)(A). On appeal, Guerrero seeks vacatur of his conviction on the grounds that: (1) the Fair Sentencing Act of 2010's enactment before his sentencing retroactively modified the drug quantity aspect of the murder offense's drug trafficking element, 21 U.S.C. § 841(b)(1)(A); (2) the Government failed to separately charge him with, and convict him of, the predicate drug trafficking offense; (3) the statute of limitations for the predicate drug trafficking offense governed and barred his murder prosecution; and (4) the Government's search of his home violated his Fourth Amendment constitutional rights. We reject these challenges and AFFIRM the judgment of conviction, but the matter is REMANDED for the sole purpose of making a clerical correction to the judgment's description of Count 1 by replacing "844(e)(1)(A)" with "848(e)(1)(A)".

Jeffrey M. Brandt, Robinson & Brandt, P.S.C., Covington, KY, for Defendant-Appellant.

Laurie A. Korenbaum, Assistant United States Attorney (Michael D. Maimin, Justin Anderson, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: Kearse, Straub, and Wesley, Circuit Judges.

WESLEY, CIRCUIT JUDGE.

Defendant-Appellant Antonio Guerrero was convicted, after a jury trial in the United States District Court for the Southern District of New York (Sweet, J.), of two counts of intentional murder while engaged in a drug trafficking offense, in violation of § 848(e)(1)(A). Guerrero challenges his conviction on several grounds related to that statute's drug trafficking element. He also raises Fourth Amendment issues. We reject his challenges and AFFIRM the judgment of conviction.

A murder conviction under 21 U.S.C. § 848(e)(1)(A) requires proof that the defendant was "engaging" in a drug trafficking offense punishable under 21 U.S.C. § 841(b)(1)(A) at the time he committed the intentional murder. On appeal, Guerrero presents three challenges related to § 848(e)(1)(A)'s drug trafficking element: (1) that the Fair Sentencing Act of 2010 ("FSA" or "Act") retroactively invalidates a pre-Act verdict under § 848(e)(1)(A) predicated upon a pre-Act drug trafficking quantity under § 841(b)(1)(A), where the defendant is sentenced post-Act; (2) that he could not properly be indicted for violating § 848(e)(1)(A) unless he had previously been convicted of the predicate drug trafficking offense; and (3) that the predicate drug trafficking offense's statute of limitations governs a § 848(e)(1)(A) murder prosecution.

As noted, Guerrero also claims Fourth Amendment violations arising from his arrest. Specifically, Guerrero challenges the admission of certain evidence recovered from his home during his arrest on the grounds that it was discovered as a result of (1) an unlawful protective sweep and (2) an involuntary consent.

Background

In the 1990s, Antonio Guerrero was a member of "Solid Gold, " a drug organization that sold crack cocaine out of gold-capped vials near 173rd Street in the Bronx, New York. Solid Gold engaged in many turf battles with rival drug dealers over the years. In connection with one such dispute, Guerrero shot and killed rival crack cocaine dealer Livino Ortega, who apparently had been impinging on Solid Gold's territory and damaging its brand by selling inferior- quality crack cocaine using Solid Gold's packaging. Guerrero also killed Ortega's friend, Fernando Garrido, in the same September 3, 1994 shooting incident.

On April 7, 2009, a federal grand jury in the Southern District of New York returned an indictment charging, inter alia, Guerrero with the intentional murders of Ortega (Count One) and Garrido (Count Two) while engaged in an offense punishable under § 841(b)(1)(A), "to wit, a conspiracy to distribute fifty grams and more" of crack cocaine, in violation of § 848(e)(1)(A). App'x 27–28.

Guerrero was arrested at his Miami, Florida home the following week and tried to a jury in the Southern District of New York beginning April 2010. After a six-week trial, Guerrero was found guilty of both counts on June 7, 2010.1Guerrero thereafter filed a series of unsuccessful post-trial motions, and the District Court sentenced him principally to two concurrent terms of 25 years' imprisonment. A judgment of conviction was entered October 16, 2014.2

Discussion3

I. Fair Sentencing Act Challenge

Guerrero was convicted of intentional murder while engaged in a drug trafficking conspiracy, in violation of § 848(e)(1)(A), which provides in pertinent part:

[A]ny person engaging in an offense punishable under section 841(b)(1)(A) of this title . . . who intentionally kills . . . or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death . . . .

21 U.S.C. § 848(e)(1)(A). At the times of Guerrero's murder offense conduct, indictment, and conviction, the threshold quantity of crack cocaine for an offense punishable under § 841(b)(1)(A) was 50 grams or more. Then, on August 3, 2010, Congress enacted the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372, a law designed to help reduce sentencing disparities between powder cocaine and crack cocaine offenses. See Dorsey v. United States, 132 S.Ct. 2321, 2329 (2012); United States v. Johnson, 732 F.3d 109, 112 (2d Cir. 2013). Among other changes, the FSA increased the threshold quantity of crack cocaine necessary to trigger the enhanced sentencing provision under § 841(b)(1)(A) from 50 grams to 280 grams. See Pub. L. No. 111–220, § 2(a), 124 Stat. 2372. The Act makes no mention of § 848(e)(1)(A). See id.

A few years after the FSA's enactment, the Supreme Court in Dorsey addressed whether the Act's more lenient sentencing regime applied retroactively to defendants who committed crack cocaine offenses before August 3, 2010, but who were not sentenced until after that date. Dorsey, 132 S.Ct. at 2326. The Court held that it did, reasoning in part that Congress through the FSA intended to apply to mandatory minimum sentences the established principle that "sentencing judges [are] to use the Guidelines Manual in effect on the date that the defendant is sentenced, regardless of when the defendant committed the offense, unless doing so would violate the ex post facto clause." Id. at 2332 (internal quotation marks omitted); accord United States v. Highsmith, 688 F.3d 74, 77 (2d Cir. 2012) (per curiam).

Guerrero argues that the FSA compels vacatur of his conviction. He reasons that, while his September 1994 murder offense conduct and June 2010 conviction preceded the FSA, his October 2014 sentencing occurred after the Act went into effect, and, under Dorsey's retroactivity rule, § 848(e)(1)(A)'s drug trafficking element required the jury to find that the conspiracy involved at least 280 grams of crack cocaine. Because only a quantity of 50 grams was alleged and proved, the argument goes, the Government failed to establish an element of the charged murder offense and Guerrero's conviction must be vacated.

This argument misreads § 848(e)(1)(A), misunderstands the FSA, and misapplies Dorsey. A defendant may be convicted under § 848(e)(1)(A) if he was engaged in a drug trafficking offense punishable under § 841(b)(1)(A) at the time he committed intentional murder.4 The crime is complete at the time of the murder, see 21 U.S.C. § 848(e)(1)(A), and it is as of that time that the statute's drug trafficking element is measured. Here, Guerrero committed the murders in September 1994, at which time the threshold quantity of crack cocaine necessary under § 841(b)(1)(A) was 50 grams or more. The jury's finding that Guerrero had been engaged in a conspiracy to distribute 50 grams or more of crack cocaine at the time he intentionally killed Ortega and Garrido therefore satisfied the drug trafficking element of the § 848(e)(1)(A) murder offense. There was no error in the indictment, the instructions, or the verdict.

No other conclusion flows from the FSA, a sentencing statute principally designed to increase threshold quantities of drugs necessary to trigger certain enhanced penalty schemes, to remove certain mandatory minimum sentences, and to direct the promulgation of new Sentencing Guidelines. See Pub. L. No. 111–220, 124 Stat. 2372. The general federal savings statute provides in pertinent part:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

1 U.S.C. § 109. Because the FSA did not expressly extinguish any criminal liability under § 848(e)(1)(A), the law's enactment did not retroactively invalidate Guerrero's conviction.

Dorsey is equally unaccommodating to Guerrero's challenge. That decision's retroactivity rule simply permits defendants who committed offenses before August 3, 2010, but who were not sentenced until after that date, to be sentenced under the FSA's more lenient sentencing regime. See Dorsey, 132 S.Ct. at 2335 ("Congress intended the Fair Sentencing Act's new, lower mandatory minimums to apply to the...

To continue reading

FREE SIGN UP