U.S. v. Cordoba-Murgas
| Decision Date | 07 September 2005 |
| Docket Number | Docket No. 04-3131-CR(L).,Docket No. 03-3350-CR(CON).,Docket No. 04-3554-CR(CON). |
| Citation | 422 F.3d 65 |
| Parties | UNITED STATES of America, Appellee, v. Luis E. CORDOBA-MURGAS, also known as Carlos, also known as Negro, also known as Sealed Defendant # 2, Luis A. Todd-Murgas, Raul Antonio Cordoba-Murgas, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Grant C. Jaquith, Supervisory Assistant United States Attorney (Robert P. Storch, Assistant United States Attorney, of counsel; Glenn T. Suddaby, United States Attorney for the Northern District of New York, on the brief), United States Attorney's Office for the Northern District of New York, Albany, NY, for Appellee.
Edward S. Zas, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Defendant-Appellant Luis E. Cordoba-Murgas.
Robert G. Wells, Syracuse, NY, for Defendant-Appellant Raul Antonio Cordoba-Murgas.
William M. Borrill, Campbell Law Firm, Syracuse, NY, for Defendant-Appellant Luis A. Todd-Murgas.
Before: OAKES and CABRANES, Circuit Judges, and GOLDBERG, Judge.*
We are asked to determine whether a defendant who has been indicted for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a), with no particular quantity specified in the indictment, may be sentenced to a term of imprisonment longer than the statutory maximum for a violation of that crime with an unspecified quantity of drugs, if the defendant admits to a specific quantity in his plea allocution which would allow for the longer sentence. The Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and our subsequent decision in United States v. Thomas, 274 F.3d 655 (2d Cir.2001) (en banc), require that in order "to impose a sentence above the statutory maximum for an indeterminate quantity of drugs, . . . the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury," id. at 660 (footnote omitted), and it is well established that a defendant's plea allocution effectively waives the requirement of submitting the quantity question to the jury, United States v. Yu, 285 F.3d 192, 198 (2d Cir.2002). Accordingly, we must here decide whether defendant's plea allocution may also effectively waive the requirement that the quantity be charged in the indictment as well.
We conclude that though an indictment can be waived by a defendant, United States v. Ferguson, 758 F.2d 843, 850-51 (2d Cir.1985), admission of quantity in a plea allocution does not constitute a waiver of the required elements of an indictment. Therefore, when a defendant has been indicted for a violation of 21 U.S.C. § 841(a) involving an unspecified quantity of drugs, the defendant cannot be sentenced above the statutory maximum for an indeterminate quantity of drugs, as set forth in 21 U.S.C. § 841(b)(1)(C). Accordingly, we remand the cause to the District Court with instructions to vacate the sentence imposed on defendant Luis Cordoba-Murgas and, upon re-sentencing, not to exceed the statutory maximum for violations of 21 U.S.C. § 841(a) with an unspecified quantity of cocaine. With regard to defendants Luis Cordoba-Todd and Raul Cordoba-Murgas, we remand for consideration of re-sentencing in accordance with United States v. Crosby, 397 F.3d 103 (2d Cir.2005).
Defendants Luis E. Cordoba-Murgas ("Cordoba"), Luis A. Todd-Murgas ("Todd"), and Raul Antonio Cordoba-Murgas ("Raul Cordoba") appeal from a judgment of the United States District Court for the Northern District of New York (Howard G. Munson, Judge), sentencing defendants for violations of 21 U.S.C. § 841(a). As we have previously considered this case, United States v. Cordoba-Murgas, 233 F.3d 704 (2d Cir.2000), we assume familiarity with our prior opinion and set forth here only those facts necessary to explain our disposition of the instant appeal.
On March 21, 1996, defendants were charged by a grand jury with a number of drug offenses in an eight-count superceding indictment. The second count charged defendants with "knowing and intentional possession with intent to distribute and distribution of cocaine and crack cocaine, Schedule II controlled substances, in violation of Title 21, United States Code, Section 841(a)(1)." Defendants were alleged to have been "involved in a large-scale drug distribution enterprise based in Rome, New York." Cordoba-Murgas, 233 F.3d at 706. The indictment did not charge defendants with any particular quantity of drugs.
Cordoba and Todd executed plea agreements on May 14, 1997, and pleaded guilty to the second count the same day. In Cordoba's written plea agreement, he acknowledged "that he participated in, the possession with intent to distribute or distribution of an aggregate total of more than 15 but less than 50 kilograms of cocaine over the duration of his participation in the conspiracy." Todd's written plea agreement contained a similar acknowledgment. Neither defendant adverted to the drug quantity when orally entering his guilty plea at the proceeding before the District Court. Following a six-week trial, Raul Cordoba was convicted of count two on June 26, 1997, and the District Court found that he too was responsible for between fifteen and fifty kilograms of cocaine.
Prior to sentencing, the government moved for an enhancement of the sentencing guidelines offense level suggested by the Presentence Report submitted by the United States Probation Office for Raul Cordoba under U.S.S.G. §§ 2D1.1(d) and 2A1.1,1 and for an upward departure for Cordoba and Todd under § 5K2.1,2 based on the allegation that Raul Cordoba had, along with Todd and at the behest of Cordoba, murdered two people while collecting a drug debt for the organization. The District Court held an evidentiary hearing regarding this murder allegation over five days in October 1998. On December 15, 1998, the District Court determined that in order to apply the enhancements, the government had to prove each defendant's involvement in the murders by "clear and convincing evidence." United States v. Murgas, 31 F.Supp.2d 245, 253-54 (N.D.N.Y.1998). The District Court concluded that the government did not meet this burden but noted that "[t]his decision hardly exonerates defendants: it only holds the government has not demonstrated defendants' involvement by the more rigorous clear and convincing standard." Id. at 257-58. The District Court then sentenced Cordoba principally to 262 months imprisonment, Todd to 188 months, and Raul Cordoba to 151 months. On appeal, we concluded that "the district court was required to employ the preponderance of the evidence standard rather than the `clear and convincing' standard," and vacated the sentences of all three defendants. Cordoba-Murgas, 233 F.3d at 709.
After oral argument, but before we had issued our ruling, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which provided that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348. Defendants petitioned for rehearing, based on the argument that our opinion allowed the District Court to sentence defendants to terms of imprisonment longer than the statutory maximum for the crime for which they were indicted and convicted. We denied the petition for rehearing on February 5, 2001, stating that
On remand, the District Court held another evidentiary hearing and, reconsidering the evidence under the preponderance standard, found that, though "the court still harbor[ed] substantial doubts as to whether Raul Cordoba is in fact responsible for the two murders," defendants were nonetheless subject to the enhanced sentences requested by the government. United States v. Murgas, 321 F.Supp.2d 451, 455-58 (N.D.N.Y.2004). The District Court rejected defendants' Apprendi claims and concluded that the written plea agreement specifying quantity fulfilled the indictment requirement. Id. at 458-60, 120 S.Ct. 2348.
Having made these findings, the District Court upwardly adjusted Raul Cordoba's sentence to 170 months imprisonment and Todd's sentence to 207 months, while Cordoba was re-sentenced to 262 months. Id. at 460, 120 S.Ct. 2348. This appeal followed.
In 2001, we convened en banc in order to clarify the law of our Court following the Supreme Court's ruling in Apprendi. See United States v. Thomas, 274 F.3d 655 (2d Cir.2001) (en banc). We held that "if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs, then the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury." Id. at 660 (footnotes omitted). Relying on this language, defendant Cordoba claims that because the indictment returned by the grand jury charged him with a violation of 21 U.S.C. § 841(a), and did not specify any quantity of drugs, the maximum statutory penalty he is subject to is twenty years imprisonment, as set forth in 21 U.S.C. § 841(b)(1)(C).3 Because he was sentenced to 262 months, a sentence longer than the statutory maximum for the crime for which he was indicted, he seeks a vacatur of his sentence and a remand with instructions that the resulting sentence not exceed twenty years.4
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