U.S. v. Abreu

• Decision Date: 13 April 1992
• Docket Number: No. 89-4145,89-4145
• Citation: 962 F.2d 1425
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orestes Luciano ABREU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1425

962 F.2d 1425

UNITED STATES of America, Plaintiff-Appellee, v. Orestes Luciano ABREU, Defendant-Appellant.

No. 89-4145.

United States Court of Appeals, Tenth Circuit.

April 13, 1992.

Wayne T. Dance, Asst. U.S. Atty. (Dee Benson, U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.

David K. Smith, Salt Lake City, Utah, for defendant-appellant.

Before SEYMOUR and EBEL, Circuit Judges, and BROWN, ^* District Judge.

EBEL, Circuit Judge.

Appellant Orestes Luciano Abreu appeals his conviction and sentencing for various drug trafficking and weapons offenses. He raises eleven issues on appeal. We affirm the district court on all issues except for appellant's enhanced sentence for a second or subsequent conviction under section 924(c)(1). As to that sentence, we vacate and remand for resentencing pursuant to the en banc opinion in this case issued concurrently with this panel decision.

Facts

Appellant Orestes Luciano Abreu ¹ was arrested in Salt Lake City along with his "nephew" and co-defendant, Juan Carlos Alvarez, who allegedly served as Abreu's interpreter and partner. The two had been the targets of a long-standing undercover narcotics investigation. Following the arrest, and under the authority of a search warrant, government officials entered defendants' Salt Lake City apartment and uncovered approximately 641 grams of a white powdery substance in a kitchen cabinet. The substance was subsequently tested and found to contain cocaine. In addition to the white powder, officials seized a scale, grinder, and plastic bags from under the kitchen sink, along with a triple beam balance scale commonly used by narcotics traffickers to weigh their drugs. A search of Abreu's bedroom uncovered a semi-automatic rifle, a .38 caliber Colt revolver containing three bullets, and ammunition for the rifle.

Abreu eventually was indicted for violations of 21 U.S.C. § 846 (conspiracy to possess and distribute cocaine), 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (possession with intent to distribute cocaine and aiding and abetting therein), 21 U.S.C. § 846 (conspiracy), and four counts of 18 U.S.C. § 924(c)(1) (use of a firearm during a drug trafficking crime). He was subsequently charged with violating 18 U.S.C. § 3146 for failing to appear after attempting to escape from a Mississippi halfway house before trial. Abreu pled guilty to the last of these charges and was convicted on all others following a jury trial. At the trial, his former partner Alvarez testified for the government. The district court eventually sentenced Abreu to a total of 380 months incarceration: 200 months on the drug possession charge and 200 months on the conspiracy charge, to run concurrently, plus 60 months for one gun charge and an enhanced 120 month sentence for the 'second or subsequent' gun conviction, both to run consecutively following the service of the first 200 months. In addition, Abreu was sentenced to 18 months on the failure to appear charge, to run concurrently with the other sentences. Abreu now appeals his conviction and sentencing and raises eleven issues for our review. We consider each in turn.

I. Does Appellant's Conviction Under 21 U.S.C. § 841

(a)(1) Violate the Eighth Amendment?

Appellant maintains that the mandatory minimum punishment prescribed by 21 U.S.C. § 841, violates his rights under the Eighth and Fourteenth Amendments. Specifically, appellant contends that (1) the mandatory minimum sentence deprived him of "individualized" sentencing, and (2) the mandatory minimum sentence is so grossly disproportionate as to be cruel and unusual under the test set forth in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). We find no merit to these claims.

Since the filing of this appeal, the Supreme Court handed down its opinion in Harmelin v. Michigan, --- U.S. ----, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), which upheld a mandatory life imprisonment sentence without possibility of parole for conviction of possession of more than 650 grams of cocaine. Although the Court was split in its reasoning, it is clear from the various opinions generated in that case that mandatory sentences are permissible for non-capital punishment. Thus, Harmelin discredits appellant's argument that his mandatory minimum sentence is unconstitutional because it deprives him of "individualized" sentencing.

Turning to appellant's proportionality argument, we likewise find no Eighth Amendment problem. Although a majority of the Court in Harmelin held that the constitution does impose a proportionality requirement on non-capital sentences, ² considerable In the case at hand, appellant was convicted for possession of 641 grams of cocaine. Although appellant contends that the mixture seized was of low concentration and virtually "unmarketable," 21 U.S.C. § 841 does not require any degree of drug purity for a conviction. We think it is clear that the sentence at issue here is constitutionally sound. Although the ten-year minimum prescribed by § 841 is indeed a harsh penalty, it hardly compares to a life sentence without parole as was at issue--and upheld--in Harmelin. We therefore reject appellant's proportionality argument.

                latitude is to be given to the legislature or Congress in setting sentences.   The appellant is correct in asserting that "[t]he Armed Career Criminal Act calls for a mandatory minimum punishment which is greater than the maximum term imposed on many persons convicted of homicide," Appellant's Brief at 18.   However, the Supreme Court has upheld similarly severe sentences for drug offenses.   For example, in Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982), the Supreme Court rejected an Eighth Amendment challenge to a prison term of 40 years and fine of $20,000 for possession and distribution of approximately nine ounces of marijuana.   Similarly, in Harmelin, the Court upheld a life sentence with no possibility of parole for a defendant convicted of possession of slightly more than 650 grams of cocaine
                

II. Was There Sufficient Evidence to Support a Finding of Possession Under 21 U.S.C. § 841(a)(1)?

Appellant contends that there was insufficient evidence to support a finding of cocaine possession--one of the elements of a § 841(a)(1) charge. According to appellant, "[s]howing that one is present in the proximity of a cache of drugs is not sufficient to demonstrate constructive possession, nor is the fact that the person accused habited the apartment where the drugs were found sufficient to impute constructive possession." Appellant's Brief at 20. We conclude that "constructive possession" is not an element of a § 841(a)(1) charge where, as here, appellant was charged under the aiding and abetting statute, 18 U.S.C. § 2. We therefore reject appellant's claim.

In this case, appellant was indicted and subsequently convicted of

knowingly and intentionally ... possess[ing] with intent to distribute in excess of 1/2 kilogram of a mixture containing cocaine, a Schedule II narcotic drug controlled substance, all in violation of Section 841(a)(1) of Title 21, United States Code, and Section 2 of Title 18, United States Code, with penalties as provided in Title 21, United States Code, Section 841(b)(1)(B).

R.Vol. I, Doc. 90 at 3 (emphasis added). According to 18 U.S.C. § 2, a defendant may be charged as a principal in the commission of a substantive criminal offense whenever he "aids, abets, counsels, commands, induces or procures its commission...." In order to prove a crime of aiding and abetting, the government must prove that the defendant associated with the criminal venture, that he purposefully participated in it, and that he sought by his actions to bring it about. United States v. Vaden, 912 F.2d 780, 783 (5th Cir.1990); United States v. Medina, 887 F.2d 528, 532 (5th Cir.1989).

Here, there was sufficient evidence for the jury to conclude that appellant aided and abetted Alvarez in the commission of the 841(a) offense. As we noted in United States v. Culpepper, 834 F.2d 879 (10th Cir.1987), "[e]vidence is considered sufficient In any event, we also conclude that there was sufficient evidence to support a finding of constructive possession on the part of appellant. As we noted in Culpepper, knowing exercise of dominion and control over the narcotics constitutes constructive possession, and constructive possession may be joint among several individuals. Id. The fact that the cocaine was found in appellant's apartment, coupled with the testimony of Alvarez and various law enforcement officers, supports the conclusion that appellant constructively possessed the cocaine. We therefore affirm the conviction for possession with intent to distribute cocaine.

                to support a criminal conviction if, when viewed in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt."  Id. at 881 (citation omitted).   We think it was perfectly reasonable for the jury to conclude that appellant associated with the criminal venture, that he purposefully participated in it, and that he sought by his actions to bring it about
                

III. Was There Sufficient Evidence To Support a Conviction

for Conspiracy?

Appellant maintains that the prosecution must show, "by a preponderance of the evidence, independent of the co-conspirator's statement, that a conspiracy existed, and that the co-conspirator and the defendant were members of the conspiracy." Appellant's Reply Brief at 1 (emphasis in original). According to appellant, the government relied entirely on the statements of Alvarez--the alleged co-conspirator--without offering any independent proof of the conspiracy. Thus, appellant concludes that Alvarez' statements should have been excluded and the conviction overturned.

We reject appellant's argument. The cases cited by appellant--for example, United States v. Silverman, 861 F.2d 571, 576-80 (9th Cir.1988), and United States v....