U.S. v. Escobar-Urrego

• Decision Date: 01 May 1997
• Docket Number: No. 95-5063,ESCOBAR-URREG,D,95-5063
• Parties: 10 Fla. L. Weekly Fed. C 873 UNITED STATES of America, Plaintiff-Appellee, v. Alvaroefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1556

110 F.3d 1556

10 Fla. L. Weekly Fed. C 873

UNITED STATES of America, Plaintiff-Appellee, v. Alvaro ESCOBAR-URREGO, Defendant-Appellant.

No. 95-5063.

United States Court of Appeals,Eleventh Circuit.

May 1, 1997.

Michael Zelman, Coral Gables, FL, for Defendant-Appellant.

Linda Collins Hertz, Harriet Galvin, Stacy Levine, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL ^*, Senior Circuit Judge.

MESKILL, Senior Circuit Judge:

Alvaro Escobar-Urrego pleaded guilty to importing liquified cocaine into this country. At his sentencing, the United States District Court for the Southern District of Florida, Ungaro-Benages, J., decided that Escobar-Urrego had imported 2,036 grams of usable cocaine and sentenced Escobar-Urrego accordingly. See United States v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir.1991) (sentences for drug offenders to be based on "usable" quantity of drugs possessed by defendant). After Escobar-Urrego was sentenced, the United States Sentencing Guidelines (Guidelines) were amended retroactively to state that a drug offender's sentence should be based on only the quantity of drugs possessed by the defendant that could be "used." Guidelines App. C, Amendment 484 (amending Guidelines § 2D1.1, Application Note 1). Escobar-Urrego then moved to have his sentence recalculated based on the amendment, and the district court denied Escobar-Urrego's motion.

We conclude that the question of how much usable cocaine Escobar-Urrego imported has already been decided, and that Escobar-Urrego is therefore barred by the law-of-the-case doctrine from relitigating the issue. Accordingly, we affirm the decision of the district court.

BACKGROUND

I. Sentencing

In May 1992, Alvaro Escobar-Urrego arrived at the Miami International Airport Escobar-Urrego was arrested and indicted for importing cocaine into the United States in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 18 U.S.C. § 2 (Count I), and for possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count II). The government eventually entered into a plea agreement with Escobar-Urrego, and pursuant to that agreement, Escobar-Urrego pleaded guilty to Count I and the government dropped Count II.

from Columbia and presented his luggage to United States Customs Agents. The Customs Agents performed a field test on a liquid contained in two bottles Escobar-Urrego was carrying, and the liquid tested positive for cocaine.

To sentence Escobar-Urrego, the district court had to determine how much cocaine Escobar-Urrego imported, and at the time, the issue was controlled by United States v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir.1991). In that case, Mary Rolande-Gabriel pleaded guilty to importing a liquid which contained cocaine. Id. at 1233. A laboratory test determined that the total weight of the liquid was 241.6 grams. Id. at 1232. However, before the cocaine could be used as intended, the cocaine had to be separated from the liquid, and once that was done, the liquid contained only 72.2 grams of usable cocaine. Id. at 1233, 1235. The district court based Rolande-Gabriel's sentence on 241.6 grams of cocaine. Id. at 1233.

On appeal, this Court stated:

Rolande-Gabriel's sentence was based on a weight of 241.6 grams, despite the fact that only 72 grams of the mixture were usable; however, a defendant possessing a usable mixture of cocaine ... weighing 75 grams would receive a significantly smaller sentence than Rolande-Gabriel. This is manifestly unjust and defeats the Sentencing Guidelines' stated policy of sentencing uniformity and proportionality.

Id. at 1237. Accordingly, this Court held that a defendant's sentence should be based on only the "usable" quantity of drugs that the defendant possessed. Id. Here, because Escobar-Urrego imported a mixture that contained both usable cocaine and an unusable liquid substance, Rolande-Gabriel mandated that Escobar-Urrego's sentence be based on only the usable cocaine that Escobar-Urrego imported.

The Drug Enforcement Agency (DEA) measured the liquid Escobar-Urrego imported and determined that its total weight was 4,173 grams. The DEA also weighed the liquid and noted its purity, and determined that the total quantity of cocaine Escobar-Urrego imported, minus the unusable liquid, was 2,036 grams. At Escobar-Urrego's sentencing, his defense attorney stated that he had consulted with an independent chemist about the DEA's test, and that the independent chemist concluded that the DEA's test was accurate. However, Escobar-Urrego maintained that he imported only 258 grams of cocaine. ¹ In an effort to determine how much cocaine Escobar-Urrego actually imported, the district court engaged in the following exchange:

The Court: When the DEA lab weighed the cocaine did they distill the cocaine from the liquid or did they just weigh the liquid?

Defense Counsel: They weighed the liquid and noted its purity.

The Court: Right....

....

The Court: Isn't there a particular discussion [in the Guidelines] of how the drugs are supposed to be weighed in [this case]?

Defense Counsel: Judge, the case [apparently referring to Rolande-Gabriel ] that Mr. Escobar-Urrego brought with him ... talks about cases such as this where the narcotics are not consumable in their present state, and that case suggests that you take away those portions that are not usable and use only the actual drug. And that's essentially what happened in this case.

The Court: Well, I appreciate that you and the government don't have a dispute about this....

Defense Counsel: The reason I don't have a dispute ... is because I conferred with ... an independent chemist ... and he told me that that was an accurate report, an accurate reading for purposes of total offense conduct for the guidelines.

(emphasis added).

The district court stated on the record that it was "satisfied that the amount of drugs determined by the DEA chemist [2,036 grams] is the correct amount of drugs." The district court never specifically found that Escobar-Urrego had imported 2,036 grams of usable cocaine. However, the district court understood that Escobar-Urrego's sentence was to be based on only the usable cocaine that Escobar-Urrego imported, and therefore, when the district court concluded that 2,036 grams was "the correct amount of drugs," it is clear that the district court did in fact decide that Escobar-Urrego imported 2,036 grams of usable cocaine.

Having decided that Escobar-Urrego imported 2,036 grams of usable cocaine, the district court concluded that Escobar-Urrego's base offense level was twenty-eight. See Guidelines § 2D1.1(c)(6) ² & Note to Drug Quantity Table (A). The court decided that no adjustments to the base level were warranted, and that Escobar-Urrego had no criminal history points, see Guidelines § 4A1.1-.3. Therefore, the court concluded that the proper sentencing range was 78-97 months, see Guidelines § 5A, Zone D, and sentenced Escobar-Urrego to 78 months imprisonment to be followed by four years of supervised release.

Escobar-Urrego appealed his sentence, and although he raised several issues, he did not challenge the district court's conclusion that he imported 2,036 grams of usable cocaine. This Court affirmed the district court. See United States v. Escobar-Urrego, 28 F.3d 116 (11th Cir.1994) (table of decisions).

II. The Amendment to the Guidelines and the Second Proceeding

On November 1, 1993, about seven months after Escobar-Urrego was sentenced, Amendment 484 was added to the Guidelines. The amendment states in pertinent part:

Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used.... If such material cannot readily be separated from the mixture or substance ... the court may use any reasonable method to approximate the weight of the mixture or substance to be counted.

Guidelines App. C, Amendment 484 (emphasis added) (amending Guidelines § 2D1.1, Application Note 1). The amendment was made retroactive, see Guidelines § 1B1.10(a) & (c), and therefore applies to Escobar-Urrego's sentence.

Escobar-Urrego then made a motion with the district court pursuant to 18 U.S.C. § 3582(c)(2), which allows an imprisoned defendant to move for a reduced sentence if the Guidelines are changed. Escobar-Urrego argued that under the amendment to the Guidelines, his sentence should be recalculated and based on only the amount of cocaine that he imported that could be "used." The government moved to deny Escobar-Urrego's motion, arguing that the same issue was raised at Escobar-Urrego's sentencing and decided against him.

United States Magistrate Judge Stephen T. Brown, to whom the case had been referred, recommended that Escobar-Urrego's motion be denied. After Escobar-Urrego objected, the district court adopted the magistrate judge's recommendation. Escobar-Urrego then filed this appeal.

DISCUSSION

On appeal, Escobar-Urrego argues that under Amendment 484, his sentence should be based on only the usable quantity of cocaine that he imported. Escobar-Urrego argues that, as a factual matter, the sentence imposed on him was not based on the usable amount of cocaine that he imported. Rather, while Escobar-Urrego seemingly concedes that weighing the liquid and noting its purity In response, the government argues that the same issue was raised at Escobar-Urrego's sentencing and decided against him. The government points out that at Escobar-Urrego's sentencing, pursuant to Rolande-Gabriel, the district court concluded that Escobar-Urrego imported 2,036 grams of usable cocaine. The government contends that because the district court has already decided that Escobar-Urrego imported 2,036 grams of usable cocaine, there is no need to revisit that decision. We agree.

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