U.S. v. Cespedes

• Decision Date: 25 August 1998
• Docket Number: No. 95-9261,95-9261
• Citation: 151 F.3d 1329
• Parties: 12 Fla. L. Weekly Fed. C 25 UNITED STATES of America, Plaintiff-Appellee, v. Alberto CESPEDES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1329

151 F.3d 1329

12 Fla. L. Weekly Fed. C 25

UNITED STATES of America, Plaintiff-Appellee, v. Alberto CESPEDES, Defendant-Appellant.

No. 95-9261.

United States Court of Appeals, Eleventh Circuit.

Aug. 25, 1998.

Ronit Zivah Walker, Federal Defender Program, Atlanta, GA, for Defendant-Appellant.

Kent Alexander, U.S. Atty., George J.C. Jacobs, III, Asst. U.S. Atty., Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, BIRCH and MARCUS ^*, Circuit Judges.

MARCUS, Circuit Judge:

Appellant Cespedes appeals from his conviction of conspiracy to possess with intent to distribute and possession with intent to distribute cocaine. Only one of the issues that he raises on appeal merits any discussion: Cespedes asserts that 21 U.S.C. § 841 et. seq. is an unconstitutional delegation of legislative authority to the executive branch because it places in the hands of the prosecutor unbridled discretion to determine whether or not to file a sentencing enhancement pursuant to 21 U.S.C. § 851 without providing any "intelligible principle" to guide that discretion. We disagree and affirm.

I.

On July 19, 1995, Cespedes was convicted after trial by jury of one count of conspiracy to possess with intent to distribute and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2. The Presentence Investigation Report for the Defendant concluded that the Defendant should be held accountable for the entire 10 kilograms of cocaine seized from a hidden compartment and, therefore, calculated Cespedes's base offense level at 32. Prior to trial, the government filed an information pursuant to 21 U.S.C. § 851, notifying the court that Cespedes had a prior conviction for selling cocaine. Under the facts of this case, § 851 effectively provides for a ten-year sentence enhancement upon the filing of such an information. Cespedes objected to the government's filing of a ten-year enhancement, and, at the time of sentencing for the first time to attributing the full 10 kilograms to him. On October 5, 1995, at the time of sentencing, the district court first concluded that "10 kilograms is attributable to each of the defendants without equivocation," subjecting Cespedes to a mandatory minimum sentence of ten years under § 841. And then, pursuant to the Sentencing Reform Act of 1984 and the enhancement embodied in the government's information, the court sentenced Cespedes to concurrent terms of imprisonment of 240 months to be followed by ten years of supervised release. The district court further ordered the Defendant deported from the United States upon completing his prison term as a condition of supervised release.

II.

The constitutionality of a statute is a question of law subject to de novo review. See United States v. Trout, 68 F.3d 1276 (11th Cir.1995), cert. denied, 516 U.S. 1153, 116 S.Ct. 1032, 134 L.Ed.2d 110 (1996). The central question raised on appeal is one of first impression in this Circuit.

Under 21 U.S.C. § 841(b)(1)(A), any person convicted of possession with intent to distribute more than 5 kilograms of cocaine "shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life." Furthermore, if the defendant "commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment." Id. In order for the court to exercise jurisdiction to impose an enhanced sentence based on prior convictions, however, the government must comply with the procedural requirements of Title 21 U.S.C. § 851:

(a) Information filed by United States Attorney

(1) No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.

(2) An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.

(b) Affirmation or denial of previous conviction

If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

(c) Denial; written response; hearing

(1) If the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the United States attorney. The court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment. The failure of the United States attorney to include in the information the complete criminal record of the person or any facts in addition to the convictions to be relied upon shall not constitute grounds for invalidating the notice given in the information required by subsection (a)(1) of this section. The hearing shall be before the court without a jury and either party may introduce evidence. Except as otherwise provided in paragraph (2) of this subsection, the United States attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. At the request of either party, the court shall enter findings of fact and conclusions of law.

(2) A person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response. Any challenge to a prior conviction, not raised by response to the information before an increased sentence is imposed in reliance thereon, shall be waived unless good cause be shown for failure to make a timely challenge.

(d) Imposition of sentence

(1) If the person files no response to the information, or if the court determines, after hearing, that the person is subject to increased punishment by reason of prior convictions, the court shall proceed to impose sentence upon him as provided by this part.

(2) If the court determines that the person has not been convicted as alleged in the information, that a conviction alleged in the information is invalid, or that the person is otherwise not subject to an increased sentence as a matter of law, the court shall, at the request of the United States attorney, postpone sentence to allow an appeal from that determination. If no such request is made, the court shall impose sentence as provided by this part. The person may appeal from an order postponing sentence as if sentence had been pronounced and a final judgment of conviction entered.

(e) Statute of limitations

No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction.

Cespedes argues that § 851 affords prosecutors unbridled discretion to fix the statutory sentence, a legislative power. The government responds that the power that prosecutors exercise under § 851 is analogous to the executive branch's classic charging power. We agree.

"The Attorney General and United States Attorneys retain ' "broad discretion" ' to enforce the Nation's criminal laws." United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)(quoting Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)(quoting United States v. Goodwin, 457 U.S. 368, 380 n. 11, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982))). "They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to 'take Care that the Laws be faithfully executed.' " Id.(quoting U.S. Const. Art. II, § 3 & citing 28 U.S.C. §§ 516, 547). "[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Indeed, the federal courts have long recognized "that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants." United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (citations omitted). Moreover, in selecting which charge to file, "[a] prosecutor may be influenced...