U.S. v. Castro-Vega
| Decision Date | 16 September 1991 |
| Docket Number | 762 and 812,Nos. 683,90-1087,90-1205 and 90-1217,CASTRO-VEG,E,s. 683 |
| Citation | 945 F.2d 496 |
| Parties | UNITED STATES of America, Appellee, v. Juliodwin Cintron-Rodriguez, Guillermo Picat, Mario Gonzalez, Defendants, Mario Gonzalez, a/k/a "Johnny," Edwin Cintron-Rodriguez, a/k/a "Beekie," and Julio Castro-Vega, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
James H. Fogel, New York City, for defendant-appellant Castro-Vega.
Lawrence Mark Stern, New York City, for defendant-appellant Cintron-Rodriguez.
Martin L. Schmukler, New York City, for defendant-appellant Gonzalez.
Stephen Fishbein, Asst. U.S. Atty., New York City (Helen Gredd, Asst. U.S. Atty., Otto G. Obermaier, U.S. Atty., S.D.N.Y., of counsel), for appellee.
Before MESKILL, PRATT and WALKER, Circuit Judges.
This appeal raises an issue expressly reserved in United States v. Arigbodi, 924 F.2d 462 (2d Cir.1991): whether it is consistent with the sixth amendment right to counsel to count uncounseled prior convictions in calculating a defendant's criminal history category under the Sentencing Guidelines for a subsequent offense. We hold that such a use of prior convictions does not violate the sixth amendment. We find the numerous other claims raised by the defendants to be without merit. However, we grant defendant Gonzalez's request to modify an error in his judgment so that it conforms with the district court's oral pronouncement of his sentence.
The facts need only be briefly summarized. A confidential informant for the Drug Enforcement Agency (DEA) in his role as a seller of marijuana looking for a buyer met with several middlemen in September and early October 1988. On October 4, 1988, he was introduced to Guillermo Picat who in turn introduced him to his "partners," Edwin Cintron-Rodriguez and Julio Castro-Vega. Picat, Cintron-Rodriguez and Castro-Vega told the informant that they wanted to purchase 1500 pounds of marijuana. A day later, Cintron-Rodriguez and the informant agreed on a price of $300 per pound. But a few days thereafter Cintron-Rodriguez told the informant that for financial reasons he wanted to start with a 300 pound purchase with a larger transaction to follow.
On October 19, 1988, Cintron-Rodriguez telephoned the informant that he was ready. They agreed to meet at La Milonga restaurant in Manhattan. The informant went to the restaurant. Cintron-Rodriguez subsequently arrived in a Jeep Wrangler with Mario Gonzalez in the front passenger seat. Picat and Castro-Vega arrived in a blue Camaro. When the informant entered the back seat of the Jeep, Gonzalez took a bag from under the front seat and joined the informant in the back seat. Cintron-Rodriguez introduced Gonzalez to the informant as "Johnny" who he said was "the money man." Gonzalez opened the bag and showed the informant a quantity of United States currency.
Both cars proceeded to Zeke's restaurant on the southwest corner of 11th Avenue and 52nd Street in Manhattan. Gonzalez remained in the Jeep parked on 11th Avenue. Cintron-Rodriguez, Picat, Castro-Vega and the informant went inside. They agreed on the terms of the transaction and the informant told them that his partner would bring the marijuana to the restaurant. As DEA agents took up surveillance at Zeke's, one agent parked an undercover van containing some 430 pounds of marijuana in bales wrapped in plastic on the north side of 52nd Street across from Zeke's. At about the same time Picat left the restaurant to join Gonzalez.
At about 7:20 P.M., DEA Agent Pizarro, posing as the informant's partner, entered Zeke's and met the informant, Cintron-Rodriguez and Castro-Vega. The informant introduced Agent Pizarro as his partner. The agent then handed Cintron-Rodriguez two pieces of paper indicating that he had two bales of marijuana totalling 272 pounds for sale at a price of $300 per pound. Castro-Vega then asked to see the marijuana. The agent took him to the van and showed him the bales stacked inside. The agent declined to let Castro-Vega physically inspect the marijuana. Castro-Vega then asked if it was the same marijuana as the sample that had been previously given by the informant to one "Jose," a middleman.
At this point Picat left the driver's side of the Jeep where he had been sitting with Gonzalez and hurried down 52nd Street toward the van. As he approached, Picat shouted to Castro-Vega to "watch out for the guy in the cab," nodding to an undercover surveillance taxi cab. Agents thereupon arrested Picat and Castro-Vega next to the van, Gonzalez seated in the Jeep and Cintron-Rodriguez as he attempted to run from Zeke's.
Following the arrests, agents found a bag containing $27,980 in cash under the passenger seat of the Jeep where Gonzalez had been sitting and a bag containing another $8,000 in cash under a seat in the blue Camaro. Cintron-Rodriguez had in his possession the papers given to him by Agent Pizzaro that described the terms of the transaction, a paper with the informant's name and telephone number, a beeper and a calculator. Castro-Vega had in his possession title to the blue Camaro. Picat had in his possession a piece of paper with the informant's name and beeper number on it and another with the informant's telephone number on it. Gonzalez had in possession a card with Cintron-Rodriguez' nickname "Piki" and beeper number on it. In post-arrest statements, Picat admitted that he had gone to Zeke's on October 19, 1988 to buy marijuana and Cintron-Rodriguez stated that he had gone to Zeke's to buy marijuana but had not brought sufficient money to make the purchase.
At the trial of Cintron-Rodriguez, Castro-Vega, Picat and Gonzalez, Cintron-Rodriguez called the only defense witness, his brother-in-law, who testified that he had employed Cintron-Rodriguez in his furniture business for the past four years; that he had always known him to use the name "Piki"; and that Cintron-Rodriguez used a beeper and a calculator in connection with furniture deliveries. The witness said that Cintron-Rodriquez suffered from a speech impediment and "was not too bright."
Following the jury trial, the three were convicted of one count of conspiracy to possess with intent to distribute more than one hundred kilograms of marijuana in violation of 21 U.S.C. § 846. Judge Edelstein imposed the following sentences: Castro-Vega received 156 months imprisonment with eight years of supervised release and a $50.00 special assessment; Gonzalez received 80 months imprisonment with five years of supervised release and a $50.00 special assessment; 1 and Cintron-Rodriguez received 121 months imprisonment with five years of supervised release and a $50.00 special assessment.
The defendants have raised numerous issues on this appeal. All of them save two are without merit and warrant no discussion.
Judge Edelstein sentenced Cintron-Rodriguez pursuant to the Sentencing Guidelines under criminal history category level III, based on three prior convictions for weapons possession and one prior misdemeanor conviction in 1984 for driving while under the influence of alcohol (DUI) in Florida. At the time of the Florida DUI conviction, Cintron-Rodriguez, who received a probationary sentence, waived counsel. If this DUI conviction had not been included in calculating his criminal history category, Cintron-Rodriguez would have been in category II rather than III, and his Guidelines range would have been 87-108 instead of 97-121 months.
Cintron-Rodriguez contends that the district court erred by including the uncounseled Florida DUI conviction in calculating his criminal history category. We disagree.
First, Cintron-Rodriguez argues that he was denied a chance to show at sentencing that his prior Florida DUI conviction was constitutionally invalid. He argues that he did not validly waive counsel because the waiver of counsel form he signed "did not inform him that he had a right to counsel regardless of the sentence to be imposed." However, a defendant does not have the right to counsel regardless of the sentence to be imposed and if the form had so admonished him it would have been incorrect. Where, as in Cintron-Rodriguez's case, a defendant is convicted of a misdemeanor and no jail term is imposed, no sixth amendment right to counsel attaches. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). Since...
To continue reading
Request your trial
-
U.S. v. Nichols
...whether the case expresses any single holding and, accordingly, have largely limited Baldasar to its facts. See United States v. Castro-Vega, 945 F.2d 496, 499-500 (2d Cir.1991); United States v. Eckford, 910 F.2d 216, 218-20 & n. 8 (5th Cir.1990); Schindler v. Clerk of Circuit Court, 715 F......
-
U.S. v. Thomas
...979 F.2d 402, 415-18 (6th Cir.1992), cert. granted, --- U.S. ----, 114 S.Ct. 39, 125 L.Ed.2d 788 (1993); United States v. Castro-Vega, 945 F.2d 496, 499-500 (2d Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 1250, 122 L.Ed.2d 649 (1993); see also United States v. Burroughs, 5 F.3d 192, 1......
-
Nichols v. United States
...there is no lowest common denominator or "narrowest grounds" that represents the Court's holding. See, e. g., United States v. Castro-Vega, 945 F. 2d 496, 499-500 (CA2 1991); United States v. Eckford, 910 F. 2d 216, 219, n. 8 (CA5 1990); Schindler v. Clerk of Circuit Court, 715 F. 2d 341, 3......
-
Tocci v. U.S., 01-CV-264(DRH).
...of incarceration is actually imposed. Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); United States v. Castro-Vega, 945 F.2d 496, 499 (2d Cir.1991). No such sentence was imposed here. Tocci received a sentence of a fine and the judge stated that "you do not have ......
-
A Problematic Plurality Precedent: Why the Supreme Court Should Leave Marks Over Van Orden v. Perry
...(9th Cir. 1989), which concluded that Justice Marshall's opinion is the closest to a narrowest ground, with United States v. Castro-Vega, 945 F.2d 496 (2d Cir. 1991), which concluded that the plurality decision contained no narrowest ground); see also Thurmon, supra note 25, at 437 ("The Ni......