U.S. v. Colon

• Decision Date: 06 April 1992
• Docket Number: D,No. 726,726
• Citation: 961 F.2d 41
• Parties: UNITED STATES of America, Appellee, v. Luis COLON, Defendant-Appellant. ocket 91-1360.
• Court: U.S. Court of Appeals — Second Circuit

Page 41

961 F.2d 41

60 USLW 2683

UNITED STATES of America, Appellee, v. Luis COLON, Defendant-Appellant.

No. 726, Docket 91-1360.

United States Court of Appeals Second Circuit.

Argued Jan. 22, 1992.

Decided April 6, 1992.

Leonard J. Levenson, New York City, for defendant-appellant.

Andrew S. Dember, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., Michele Hirshman, Asst. U.S. Atty., on the brief), for appellee.

Before: NEWMAN and KEARSE, Circuit Judges, and CEDARBAUM, District Judge. ^*

JON O. NEWMAN, Circuit Judge:

This appeal in a Sentencing Guidelines case concerns primarily the aggregation of drug quantities for purposes of determining a base offense level and the appropriate procedure in the event of a modification of the guidelines after imposition of a sentence and while the sentence is pending on direct review. These issues arise on an appeal by Luis Colon from the May 15, 1991, judgment of the District Court for the Southern District of New York (John M. Walker, Judge) convicting him, following his plea of guilty, of conspiring to distribute, and to possess with intent to distribute, heroin, in violation of 21 U.S.C. § 846 (1988), and also substantive violations of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C), 845a(a) (1988). We conclude that the District Court's determination of Colon's base offense level was within the Court's authority and that the benefit, if any, resulting from modification of the guidelines after imposition of sentence is a matter to be pursued in the District Court. We therefore affirm.

Facts

Colon's sentencing has been extremely protracted. On July 14, 1988, Colon pleaded guilty before then District Judge Walker to all counts of the indictment and was sentenced on October 11, 1988. His offenses continued after November 1, 1987, rendering him subject to sentencing under the Guidelines. See United States v. Story, 891 F.2d 988, 993-96 (2d Cir.1989). Judge Walker had previously held the Sentencing Guidelines unconstitutional but nevertheless referred to them for general guidance in selecting Colon's sentence. He sentenced Colon to concurrent terms of fifteen years of imprisonment and twelve years of supervised release on each count. Colon's appeal of his sentence was withdrawn following the Supreme Court's decision upholding the constitutionality of the Sentencing Guidelines, see Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), and the case was remanded to the District Court for resentencing under the Guidelines.

On that first remand, the District Court, proceeding under the Sentencing Guidelines, again imposed a sentence of concurrent fifteen-year terms of imprisonment and twelve years' supervised release on each count. In selecting this sentence, Judge Walker made an upward departure from a guideline range of 57 to 71 months. The departure was based on quantities of narcotics sold by Colon as part of the same course of conduct as the offenses of conviction. On May 18, 1990, this Court vacated that sentence and remanded the case for resentencing, holding that such quantities should have been incorporated into the calculation of the base offense level, rather than used as the basis for an upward departure. United States v. Colon, 905 F.2d 580, 586-87 (2d Cir.1990) (Colon I ). In remanding for resentencing, we acknowledged that, in this case, using the uncharged heroin sales to enhance the base offense level rather than as a ground for a discretionary upward departure would likely have no practical impact on the ultimate sentence. Id. at 587. However, we believed that remand was necessary to allow defense counsel to challenge the determination of the amounts of the uncharged sales, and to permit the District Court to determine whether these sales were proven by a preponderance of the evidence.

After our remand, Colon sought to recuse Judge Walker. That application was denied, and the District Court received submissions from both the Government and Colon as to the appropriate guideline range to be applied. Judge Walker conducted a Fatico hearing, at Colon's request, to allow Colon to challenge both the quantities and types of narcotics involved in the uncharged transactions and whether the uncharged sales were part of the same course of conduct. Ultimately, Judge Walker determined that the uncharged sales were part of the same course of conduct and that 400 grams was the appropriate quantity upon which to calculate the base offense level. On May 15, 1991, Colon was resentenced to concurrent terms of 168 months' (fourteen years') imprisonment on each of the ten counts, and concurrent terms of twelve years' supervised release on nine counts and six years' supervised release on one count.

Discussion

1. Base offense level calculation. Colon contends that his sentence should be vacated because the evidence upon which the District Court relied in determining his base offense level was legally insufficient to establish either the quantity of heroin sold in the uncharged sales or that the uncharged sales were part of the same course of conduct or common scheme or plan as the charged sale. This claim is without merit.

In narcotics cases, the Sentencing Guidelines provide for determination of a base offense level based on the quantity of narcotics involved. Guidelines, § 2D1.1. Where the quantity of drugs charged in the indictment or seized from the defendant does not fully reflect his narcotics sales, the Guidelines require that quantities that were part of the "same course of conduct" or "common scheme or plan" as the offenses of conviction be included in determining the base offense level, based on an approximation of their quantity by the sentencing judge. Guidelines, §§ 1B1.3(a)(2), 2D1.4; United States v. Schaper, 903 F.2d 891, 898 (2d Cir.1990); Colon I, 905 F.2d at 586-87. The Government need prove the existence of those quantities only by a preponderance of the evidence, United States v. Shoulberg, 895 F.2d 882, 886 (2d Cir.1990), and a District Court's factual findings are binding unless clearly erroneous.

Judge Walker's calculation of the quantity of heroin involved was supported by the evidence. Colon's admissions to the Probation Department were a proper basis upon which to estimate the scope of his sales activities. See United States v. Vazzano, 906 F.2d 879, 884 (2d Cir.1990) (a defendant's trustworthy admissions may be used in estimating the uncharged, unseized quantities involved). On the prior appeal, we determined that Colon has waived any claim of error that he was not informed of his right to remain silent at the presentence interview and was questioned without the presence of counsel. Colon I, 905 F.2d at 588.

During the presentence investigation, Colon told the probation officer that he had sold 80 glassine envelopes every two or three days for a "few years" to support his drug and alcohol addictions. Judge Walker found that Colon had engaged in these heroin sales over at least a two-year period, but he adopted a conservative 300-day period and estimated sales during that period at a rate of 80 glassine envelopes every 3 days. The Judge then used the weight of the glassine envelopes sold by Colon in the counts of conviction and multiplied the resulting 8,000 bags by .05 grams, to arrive at 400 grams as the appropriate quantity upon which to calculate the base offense level.

The quantities of heroin that Colon was convicted of selling to undercover officers and possessing at the time of his arrest corroborate the accuracy of his admissions. Colon sold 60 glassine envelopes of heroin to undercover officers during a four-day period and was found in possession of 89 additional glassines when he was arrested one week later. All of these glassine envelopes contained approximately .05 grams of heroin. The commentary to the Guidelines suggests that the sentencing judge should approximate the quantity of unseized drugs based upon, among other factors, "similar transactions in controlled substances by the defendant." Guidelines, § 2D1.4, comment. (n. 2).

The District Court was not clearly erroneous in determining that these uncharged sales were part of the same course of conduct. The evidence was sufficient to indicate that Colon had repeated the same type of criminal activity over time and "has engaged in an identifiable 'behavior pattern' of specified criminal activity." United States v. Perdomo, 927 F.2d 111, 115 (2d Cir.1991) (quoting United States v. Santiago, 906 F.2d 867, 872 (2d Cir.1990)).

2. Recusal. Colon next contends that Judge Walker erred in failing to recuse himself. Colon argues that the appearance of bias was created by Judge Walker's imposition of fifteen-year sentences on two prior occasions and the speculation that we would be reluctant to reverse for the second time a sentence imposed by a judge who now serves on this Court. A federal judge shall recuse himself in any proceeding where his "impartiality might reasonably be questioned," particularly, where the judge "has a personal bias or prejudice concerning a party." 28 U.S.C. § 455(a), (b)(1). However, such personal bias means prejudice based on "extrajudicial" matters, and earlier adverse rulings, without more, do not provide a reasonable basis for questioning a judge's impartiality. Schiff v. United States, 919 F.2d 830, 834 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2871, 115 L.Ed.2d 1037 (1991). Moreover, the record plainly demonstrates that Colon's claim is without merit. Judge Walker did not mechanically reimpose the previous sentence, which, in any event, had been chosen with an eye to the relevant guidelines. Instead Judge Walker granted Colon's application for a Fatico hearing, requested an updated probation report, and gave due consideration to Colon's incarceration record in determining his sentence. Finally, citation is not necessary to recall that this Court has not hesitated to exercise its oversight...