U.S. v. Castellanos

• Decision Date: 13 June 1990
• Docket Number: No. 88-3535,88-3535
• Citation: 904 F.2d 1490
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alejandro CASTELLANOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1490

904 F.2d 1490

UNITED STATES of America, Plaintiff-Appellee, v. Alejandro CASTELLANOS, Defendant-Appellant.

No. 88-3535.

United States Court of Appeals, Eleventh Circuit.

June 13, 1990.

Mark A. Pizzo, Asst. Federal Public Defender, Tampa, Fla., for defendant-appellant.

Mark Jackowski and Omer G. Poirier, Asst. U.S. Attys., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, VANCE ^*, Circuit Judge, and PITTMAN ^**, Senior District Judge.

ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

882 F.2d 474 (11th Cir.1989)

TJOFLAT, Chief Judge:

In an earlier opinion in this case, see United States v. Castellanos, 882 F.2d 474 (11th Cir.1989), we vacated the sentence imposed by the district court and remanded the case to that court for resentencing. Both parties petitioned for rehearing, pointing out factual errors in our opinion. Additionally, the Government's petition made us aware that our legal holding was subject to misinterpretation. ¹ After consulting the record, we have decided to grant the parties' petitions for rehearing and to vacate

our prior opinion. We substitute this opinion in its stead and now affirm the sentence imposed by the district court.

I.

On January 5, 1988, a federal grand jury handed down a two-count indictment against appellant Alejandro Castellanos and others, charging them with (1) conspiracy to possess more than 500 grams of cocaine with intent to distribute it in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1988), ² and (2) possession of an unspecified quantity of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (1988). ³ On March 10, 1988, Castellanos reached a plea agreement with the Government pursuant to which he pled guilty to count two of his indictment. Castellanos' plea agreement stipulated the following facts:

On December 3, 1987, pursuant to discussions between co-conspirators and co-defendants Allessandro Ippolito, Marcia Usan, Alejandro Castellanos, Danny Rio and Carlos Carrasco, defendant Alejandro Castellanos and Marcia Usan traveled from Miami to Tampa in an automobile carrying approximately nine ounces [255 grams] of cocaine. Surveillance agents observed Allessandro Ippolito meet Castellanos and Usan at a restaurant in Tampa. A surveillance agent saw Usan remove a white package from the trunk of defendant's automobile and place it in the trunk of Ippolito's automobile. Castellanos was present during this exchange between Ippolito and Usan. Shortly thereafter, Ippolito delivered the cocaine to an undercover Drug Enforcement Agent. Castellanos, Usan, and Ippolito were then arrested. A later chemical analysis of the substance prov[ed] positive for cocaine.

On April 10, 1989, Castellanos went before the district court for sentencing. Since Castellanos' offense occurred after November 1, 1987, his sentence was controlled by the sentencing guidelines promulgated by the United States Sentencing Commission. See United States v. Burgess, 858 F.2d 1512, 1514 (11th Cir.1988).

The district court properly determined that Sentencing Guidelines Sec. 2D1.1 (1989) ("Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)") was applicable to Castellanos' offense. ⁴ Section 2D1.1 provides that the base offense level should vary depending on the type and quantity of narcotics involved in the offense. See id. Sec. 2D1.1(a)(3). In the presentence investigation report submitted to the court, the probation officer had found that Castellanos' offense involved over five kilograms The district court, which had presided at the trial of Castellanos' co-defendant and had heard Castellanos' testimony there, adopted the Government's position that over 500 grams of cocaine were involved. Accordingly, the court determined Castellanos' base offense level to be 26. See id. Sec. 2D1.1 drug quantity tbl. After factoring in other adjustments for a total offense level of 21, the court placed appellant in Criminal History Category I. The applicable sentencing range for the offense was thus from thirty-seven to forty-six months of incarceration, see id. Ch. 5 Pt. A. Declining to grant the Government's motion for a downward departure for substantial assistance rendered to the Government, the district court sentenced Castellanos to a thirty-seven-month term of incarceration to be followed by a three-year term of supervised release. The court explained that it chose the lowest possible end of the sentencing range because of Castellanos' substantial assistance to the Government.

                of cocaine.  Objecting to that finding in the addendum to the report, Castellanos contended that his offense involved only 255 grams as stipulated in his plea agreement.  The Government also objected to the probation officer's finding;  it contended that the offense involved slightly more than 500 grams of cocaine as charged in the dismissed conspiracy count and as proven through Castellanos' own testimony at the trial of his co-defendant. 5   Thus, the amount of cocaine involved in the offense of conviction became a disputed fact that the district court had to resolve at the sentencing hearing
                

Castellanos now challenges his sentence. He contends that the district court erred in basing his offense level on the total amount of cocaine involved in the two offenses with which he was originally charged rather than on the lesser amount involved in the offense for which he was convicted. According to Castellanos, Sentencing Guidelines Sec. 1B1.3 (1987), which permits consideration of conduct extrinsic to the offense of conviction, denies a criminal defendant the due process of law. Castellanos also contends that the district court erred in refusing to grant the Government's motion for a downward departure. We discuss each contention in turn. ⁶

II.

A. The Challenge to Section 1B1.3

Under the guidelines, determination of the appropriate offense level is a two-step process: the court first determines which guideline section covers the offense of conviction, see Sentencing Guidelines Sec. 1B1.2(a), then determines the applicable offense level in accordance with the "relevant conduct" section--1B1.3, see id. Sec. 1B1.2(b). At the time of Castellanos' offense, section 1B1.3(a) instructed a court to consider all "acts and omissions committed or aided and abetted by the defendant ... that (1) are part of the same course of conduct, or a common scheme or plan, as the offense of conviction" in determining Castellanos' due process challenge to section 1B1.3 is essentially threefold. He first argues that section 1B1.3(a) is facially invalid in that it allows a defendant to be sentenced not only for the offense of conviction but also for offenses that did not produce a conviction. According to Castellanos, there results a "distinction without a difference" between conviction and sentence, whereby a defendant may be convicted of a lesser offense under the stringent "beyond a reasonable doubt" standard of proof but sentenced for a more serious offense without the safeguard of the higher burden of proof. While acknowledging that pre-guideline jurisprudence established less rigorous due process requirements for sentencing proceedings than for trial of guilt or innocence, Castellanos asserts that the guidelines require new, more stringent standards.

the offense level. ⁷

We disagree. The pre-guideline sentencing model was based on "real offense" sentencing: federal courts considered the actual conduct in which a defendant was engaged and not solely that with which he was charged. United States v. Scroggins, 880 F.2d 1204, 1212-13 (11th Cir.1989). This model placed few limits on the scope of the evidence that a court could consider. Id.; see United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972) ("[A] judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come."). Although the guidelines adopted something akin to a "charge offense" system, the Sentencing Commission that promulgated them cautions us that the guidelines do not install a pure charge offense system but, rather, one that contains a large number of real offense elements. Sentencing Guidelines Ch. 1, Pt. A introduction 4(a). Indeed, the guidelines explicitly state that extrinsic ("real offense") conduct remains relevant to sentencing, see id. Sec. 1B1.2(b).

Under pre-guidelines sentencing law, due process demands were deemed satisfied if the relevant factors were established by a preponderance of the evidence. McMillan v. Pennsylvania, 477 U.S. 79, 91-93, 106 S.Ct. 2411, 2419-20, 91 L.Ed.2d 67 (1986). In contrast to the elements that establish a defendant's guilt, which must be proved beyond a reasonable doubt, the extrinsic-conduct factors relevant to sentencing come into play "only after a defendant has been adjudged guilty beyond a reasonable doubt." See id. at 92 n. 8, 106 S.Ct. at 2419 n. 8. Although the guidelines themselves do not identify the standard of proof Second, Castellanos argues that the district court's application of section 1B1.3 violated his right to due process of law. Due process in sentencing demands, of course, that the relevant conduct considered by a court in any given case be supported by an "evidentiary basis beyond mere allegation in an indictment," United States v. Smith, 887 F.2d 104, 108 (6th Cir.1989), and that the defendant be given an opportunity to rebut factors that might enhance a sentence, see Guerra, 888 F.2d at 251. The guidelines accommodate these demands by establishing an adversarial factfinding process, during which a court may consider any information, including reliable hearsay, regardless of the information's admissibility at trial, provided that there are sufficient indicia of reliability to support...