U.S. v. Camacho
| Decision Date | 16 December 1994 |
| Docket Number | No. 92-4442,92-4442 |
| Citation | 40 F.3d 349 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mauricio CAMACHO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Douglas R. Beam, Melbourne, FL, for appellant.
Linda Collins Hertz, Lisa T. Rubio, Asst. U.S. Attys., Miami, FL, for appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, COX, Circuit Judge, and YOUNG *, Senior District Judge.
INTRODUCTION
Mauricio Camacho was convicted of possessing cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and importing cocaine into the United States in violation of 21 U.S.C. Sec. 952(a). Camacho appeals, challenging the sentence imposed by the district court and the district court's denial of his motion for a new trial. We affirm.
Camacho arrived at Miami International Airport on May 12, 1991, from Cali, Colombia. Upon his arrival, Camacho presented himself to a Customs inspector for examination and clearance. During the Customs inspection, the inspector examined some place mats that Camacho declared he had purchased in Colombia. The inspector noticed that the place mats were hand-painted with tropical scenes and exuded a strong chemical odor. Upon closer examination, the inspector noticed that the mats were a little "sticky" and "gooey." (R.2 at 11, 26.) Having heard that cocaine previously had been smuggled into the country in place mats, the inspector decided to scrape the back of one of the place mats and perform a field test on the substance. The substance tested positive for cocaine.
Camacho was arrested and charged with (1) possessing cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1); and (2) importing cocaine into the United States in violation of 21 U.S.C. Sec. 952(a). Camacho was tried and found guilty on both counts.
At trial, a forensic chemist testified that the cocaine-laden mats weighed 3.378 kilograms, of which 34 percent was pure cocaine base. Thus, he concluded that the cocaine base weighed 1.148 kilograms. At the sentencing hearing, the defense presented a witness who testified that the cocaine base contained in the mats was not crack and was not a smokable form of cocaine. The cocaine base contained in the mats would have to be converted into crack. The defense argued that for purposes of the sentencing guidelines, "cocaine base" meant "crack," and because the substance contained in the mats was not crack, it should, for sentencing purposes, be treated as cocaine hydrochloride rather than cocaine base. 1
The district court held that, although the substance may not have been crack, the substance was cocaine base within the meaning of the sentencing guidelines. Pursuant to United States Sentencing Guidelines (USSG) Sec. 2D1.1(c), the court found the base offense level to be 36, and sentenced Camacho to 188 months imprisonment. See United States Sentencing Commission, Guidelines Manual, Sec. 2D1.1(c) (Nov. 1991).
After sentencing, Camacho, acting pro se, moved for a new trial. Camacho asserted several grounds for the motion, one of which was that Camacho's attorney, Miguel Caridad, forbade him from testifying on his own behalf at trial, in violation of the Sixth Amendment. The court held an evidentiary hearing on Camacho's post-trial motion. However, the hearing only addressed whether Caridad denied Camacho his right to testify on his own behalf. At the hearing, Camacho presented two witnesses: Blanca Linacero, Camacho's sister; and Adriana Caceres, Camacho's girlfriend and a witness at the trial. Camacho also testified on his own behalf at this hearing. The Government presented one witness--Caridad. Caridad testified that he had "recommended [to Camacho] that [Camacho] strongly consider not testifying...." 2 Caridad maintained that this was merely a recommendation. According to Caridad, he made it clear to Camacho that the final decision about whether to testify was Camacho's, and that Camacho actually made that decision.
Camacho initially testified that Caridad "did not allow [Camacho] to take the witness stand and testify in [his] own defense by telling [him] that it was not necessary for [him] to testify." (R.4 at 51.) Camacho also testified that Caridad told him that he did not want him to take the witness stand "and that's different from just giving me legal advice against testifying." Id. at 52. Finally, the court questioned Camacho directly. In response to those questions, Camacho testified that Caridad never advised him that he was merely recommending that he not take the stand, and never told him that he had the right to take the stand notwithstanding Caridad's opinion.
The district court found Caridad's testimony more credible, and denied Camacho's motion for a new trial.
The first issue is whether the district court erred in determining that the substance in Camacho's place mats constituted "cocaine base" for the purpose of sentencing Camacho pursuant to USSG Sec. 2D1.1(c). The second issue is whether the district court erred in denying Camacho's motion for a new trial based on Camacho's claim of ineffective assistance of counsel.
The district court's interpretation of the United States Sentencing Guidelines is subject to de novo review. United States v. Rodriguez, 980 F.2d 1375, 1377 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 3003, 125 L.Ed.2d 695 (1993). On the ineffective assistance of counsel claim, we " 'defer to the district court's findings of fact absent a clearly erroneous determination but apply our own judgment as to whether the conduct determined by these facts constitutes ineffective assistance of counsel.' " United States v. Teague, 953 F.2d 1525, 1534-35 (11th Cir.) (quoting Wiley v. Wainwright, 793 F.2d 1190, 1193 (11th Cir.1986)), cert. denied, --- U.S. ----, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992).
On May 1, 1992, the district court sentenced Camacho to 188 months imprisonment, holding that the illegal substance involved in the case, although not crack, was cocaine base for purposes of sentencing because it was scientifically classified as cocaine base. Camacho had been found guilty of possessing 1.148 kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and importing cocaine into the United States in violation of 21 U.S.C. Sec. 952(a). Under the sentencing guidelines, the base offense level for these crimes if the illegal substance is considered cocaine hydrochloride is 26, providing a guideline range of 63 to 78 months imprisonment in criminal history category I. By comparison, the base offense level for these crimes if the illegal substance is considered cocaine base is 36, providing a guideline range of 188 to 235 months. USSG Sec. 2D1.1(c).
The issue here is whether, at the time the district court sentenced Camacho, the court erred in classifying the illegal substance involved in the case as cocaine base, even though it was not crack. The Government contends that this court's decision in United States v. Rodriguez, 980 F.2d 1375 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 3003, 125 L.Ed.2d 695 (1993), governs this case. In Rodriguez we held that under USSG Sec. 2D1.1(c) "cocaine base" includes all forms of cocaine base, not just crack cocaine. Rodriguez, 980 F.2d at 1378. However, Camacho contends that amendment 487 to the guidelines, which states that "cocaine base" for purposes of USSG Sec. 2D1.1(c) means "crack," governs this case even though the amendment was adopted after Camacho was sentenced. See USSG App. C., amend. 487 (Nov. 1, 1993).
The confusion on this issue had been generated by the fact that there are different forms of cocaine base, only one of which is crack cocaine. It has been argued, however, that because the term "cocaine base" is commonly used interchangeably with the term "crack," Congress and the Sentencing Commission intended the term "cocaine base," as used in 21 U.S.C. Sec. 960(b) and USSG Sec. 2D1.1(c), to refer only to the "crack" form of cocaine base. Rodriguez, 980 F.2d at 1377. This court directly addressed this issue in Rodriguez. In Rodriguez, we held that Congress intended to use the scientific meaning of the term "cocaine base" in 21 U.S.C. Sec. 960(b), and the Sentencing Commission intended that the same meaning apply to USSG Sec. 2D1.1(c). Rodriguez, 980 F.2d at 1378. Because the scientific meaning of the term "cocaine base" includes all forms of "cocaine base" and not merely "crack," the district court correctly interpreted the sentencing guidelines in sentencing Camacho unless the amendment to the guidelines applies. See id.
Effective November 1, 1993, the Sentencing Commission amended USSG Sec. 2D1.1(c). USSG App. C., amend. 487 (Nov. 1, 1993). The amendment states that for purposes of Sec. 2D1.1(c), "cocaine base" means "crack." 3 Camacho argues that this amendment is a clarifying amendment and should be given retroactive effect. We disagree.
Clarifying amendments are amendments to the commentary of the sentencing guidelines, and are considered by this court in interpreting the guidelines, even when the defendant was sentenced before the effective date of the amendments. 4 However, the amendment in this case, amendment 487, is not a clarifying amendment to the commentary; it is an amendment to the text of the sentencing guidelines. United States v. Munoz-Realpe, 21 F.3d 375, 378 (11th Cir.1994). When adopting amendments to the guidelines, the Sentencing Commission publishes a list of those amendments which the Sentencing Commission intends to be effective retroactively. See USSG Sec. 1B1.10. The list of retroactive amendments appears in USSG Sec. 1B1.10(d). Because amendment 487 to the guidelines is not listed in that section, it is not given...
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