U.S. v. Echevaria
| Decision Date | 01 July 1993 |
| Docket Number | No. 92-2598,92-2598 |
| Citation | 995 F.2d 562 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carlos ECHEVARIA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Roland E. Dahlin, II, Federal Public Defender, Thomas S. Berg, Asst. Federal Public Defender, Elizabeth K. Ferrell, Houston, TX, for defendant-appellant.
William C. Bryson, Mark A. Perry, Office of Sol. Gen., Washington, D.C., Paula C. Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
ON PETITION FOR REHEARING
Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.
The petition for rehearing is hereby granted and this opinion is substituted for the earlier opinion issued on June 2, 1993.
The facts of this case are not in dispute. On the evening of February 18, 1992, at approximately 7:55 p.m., undercover police officer R.F. Benavides drove through the parking lot of an apartment complex in Houston. Benavides was flagged down by Echevaria who asked Benavides what he needed. Benavides told Echevaria that he wished to purchase $120 worth of crack cocaine. Echevaria sold the requested amount of crack to Benavides and was promptly arrested by other police officers on the scene. The parking lot at which the transaction between Echevaria and Benavides took place was 634 feet away from the "Robindell School," a private kindergarten.
During Echevaria's sentencing hearing, the government urged the district court to enhance Echevaria's sentence under § 2D1.2 of the U.S.S.G. because the drug offense occurred within a thousand feet of a "protected location." Echevaria objected to the enhancement, arguing that the Robindell School is not a protected location. The district court agreed with the government that the Robindell School was a protected location and increased Echevaria's sentence by two offense levels. Echevaria was sentenced to 36 months imprisonment to be followed by six years of supervised release.
Section 2D1.2 of the U.S.S.G. provides for an enhanced sentence for offenses occurring near protected locations. Protected locations are defined in 21 U.S.C. § 860 1 as all areas
within one thousand feet of the real property comprising a public or private elementary, vocational, or secondary school, or a public or private college, junior college, or university, or playground, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility.
It is undisputed that Echevaria sold crack cocaine within one thousand feet of the Robindell School. The question we must resolve is whether the Robindell School, a kindergarten, is a "protected location" within the meaning of § 860.
The government claims that kindergartens are protected locations under § 860 because they fall within the definition of "elementary schools." Unfortunately, § 860 does not define or elaborate on the meaning of "elementary schools." The question of whether a kindergarten is an elementary school for the purposes of § 860 has never been squarely addressed by a federal court. Two federal courts have indicated in dicta that kindergartens are not elementary schools. The Ninth Circuit in United States v. Pitts intimated that elementary schools "may not include day care centers or preschools." 908 F.2d 458, 460 n. 4 (9th Cir.1990). Similarly, the District of Connecticut, in United States v. Parsell, 815 F.Supp. 84 (D.Conn.1993), stated in dicta that under the "rule of lenity" a religious nursery school might well fall outside the scope of § 860. 2
To determine whether the Robindell School is an elementary school under § 860, we must examine the purpose behind § 860. Congress enacted § 860 in recognition of the dangers that drugs, and the crimes associated with drug dealing, pose to children. As we explained in U.S. v. Wake:
there is an obvious and great danger in the mere presence of drug dealers around schools. Among other things, the existence of large quantities of prohibited substances in a school zone, not to mention the concomitant crimes and risk of harm associated with drug dealers, increases greatly the likelihood that schoolchildren will come in contact with them or otherwise be The aim of the statute is to "create a 'drug-free zone' around our schools and to send a clear signal to drug dealers that we will not tolerate their presence near our schools." United States v. Crew, 916 F.2d 980, 982 (5th Cir.1990) (quoting 130 Cong.Rec. S559, statement of Senator Hawkins). The statute attempts to create the desired drug free zones by penalizing more harshly drug transactions that occur near places, such as schools, where children gather.
placed directly in harm's way. 948 F.2d 1422, 1433 (5th Cir.1991) cert. den. --- U.S. ----, 112 S.Ct. 2944, 119 L.Ed.2d 569 (1992).
Section 860 places "the burden on drug dealers to ascertain their proximity to schools." U.S. v. Wake, 948 F.2d at 1433. If a defendant distributes, possesses with the intent to distribute, or manufactures a controlled substance within a thousand feet of a school his sentence may be enhanced regardless of whether the defendant intended to commit a drug offense within one thousand feet of a school.
Examining the nature of the Robindell School in light of Congress' intent in enacting § 860, we find that the Robindell School is an elementary school and a protected location within § 860. Any reasonable person who attempted to ascertain the proximity of schools to the parking lot where the drug sale took place would have easily noticed the presence of the Robindell School 634 feet away. The Robindell School is a private educational institution that is indistinguishable from an ordinary elementary school in size, operation, and outward physical appearance. The school teaches three hundred and fifty students. It has numerous enclosed classrooms, two playgrounds, 3 a lunch room, and a teacher's lounge.
While the Robindell School predominantly teaches kindergarten age children, the school also provides after-school tutoring for children up to twelve years of age. Students at the Robindell School sit in classrooms behind desks while receiving instruction in math, spelling, reading, phonics, social studies, and health. 4 The teachers at the Robindell School are state licensed and certified, and must undertake annual continuing education. 5
The school posts a large sign in the front of its building reading: "THE ROBINDELL SCHOOL." Due to the school's own designation, its appearance, and its function, a reasonable passerby could not distinguish the Robindell School from an ordinary elementary school. In fact, in all...
To continue reading
Request your trial
-
U.S. v. Lopez
...school year or the school is in session. In Texas, at least, a tiny church kindergarten would be included. See United States v. Echevaria, 995 F.2d 562, 563 & n. 5 (5th Cir.1993); Tex.Ed.Code Ann. Sec. 21.797 (Vernon Supp.1993).5 "The powers not delegated to the United States by the Constit......
-
U.S. v. Parker
...as defined in Sec. 860(d)(1)--a finding that would be clearly erroneous if based on the record evidence. See United States v. Echevaria, 995 F.2d 562, 563-64 (5th Cir.1993) (holding that a "protected location" under U.S.S.G. Sec. 2D1.2(a)(1) is defined by the express terms of 21 U.S.C. Sec.......
-
U.S. v. Chandler
...refer to 21 U.S.C. § 860 as a sentence enhancer, see, e.g., United States v. Smith, 13 F.3d 860 (5th Cir.1994); United States v. Echevaria, 995 F.2d 562 (5th Cir.1993); United States v. Wake, 948 F.2d 1422 (5th Cir.1991), argues that Chandler's conviction was properly increased under § 860.......
-
U.S. v. Smith
...113 S.Ct. 2376, 124 L.Ed.2d 280 (1993); United States v. Sanchez-Solis, 882 F.2d 693, 699 (2d Cir.1989).29 See United States v. Echevaria, 995 F.2d 562, 565 (5th Cir.1993) (enhancement upheld on facts nearly identical to this case); United States v. Wake, 948 F.2d 1422, 1432-33 (5th Cir.199......