U.S. v. Florez

• Decision Date: 03 May 2006
• Docket Number: Docket No. 05-2385 CR.
• Parties: UNITED STATES of America, Appellee, v. Jose D. FLOREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

447 F.3d 145

UNITED STATES of America, Appellee, v. Jose D. FLOREZ, Defendant-Appellant.

Docket No. 05-2385 CR.

United States Court of Appeals, Second Circuit.

Argued: January 4, 2006.

Decided: May 3, 2006.

COPYRIGHT MATERIAL OMITTED

Mark Gimpel (David Zapp, on the brief), New York, New York, for Defendant-Appellant.

Daniel E. Wenner, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee.

Before: KEARSE and RAGGI, Circuit Judges, and RESTANI, Chief Judge, U.S. Court of Int'l Trade.¹

REENA RAGGI, Circuit Judge:

Defendant Jose Dorance Florez ("Florez") appeals from a judgment of conviction entered on May 12, 2005, after a jury trial in the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) at which he was found guilty of two narcotics conspiracies, the first to import more than one kilogram of heroin into the United States in violation of 21 U.S.C. §§ 963, 960(a)(1), 960(b)(1)(A), and the second to possess with intent to distribute the same quantity of heroin in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(i). Sentenced to concurrent incarceratory terms of 210 months, which he is presently serving, as well as concurrent five-year terms of supervised release, and a total $200 special assessment, Florez challenges the district court judgment on the grounds that (1) the charges against him are time-barred, (2) the record evidence is legally insufficient to support his conviction, and (3) his incarceratory sentence is (a) based on impermissible judicial factfinding as to drug quantity and (b) unreasonably disproportionate to the ten-year prison term imposed on his brother for participation in the same conspiracies. We reject these claims as without merit and hereby affirm the judgment of conviction.

I. Factual Background

Florez's conviction originates in a conspiracy to import heroin from Colombia into the United States and in a related conspiracy to take possession of those drugs in the United States in order to distribute them in this country. The trial evidence showed that Florez initially proposed these schemes to his brother, Jose Maria Florez, also known as "Chepe," after which the brothers financed and supervised a heroin importation and distribution ring that operated between February and November 1997.

In furtherance of their conspiratorial objectives, Florez and Chepe recruited numerous couriers to smuggle heroin into the United States. At trial, three of these couriers provided direct evidence as to the workings of the charged conspiracies and Florez's participation in them. Each courier testified that Florez's main role was to provide couriers with heroin in South America and to instruct them how best to smuggle the drugs into the United States. Upon the couriers' arrival in the United States, Chepe would pay them, take custody of the smuggled heroin, and arrange for its distribution.

At the conclusion of the six-day trial, the jury convicted Florez of (1) conspiracy to import more than one kilogram of heroin and (2) conspiracy to possess with intent to distribute that same quantity of heroin. It acquitted Florez on related substantive importation and possession counts. In response to a special interrogatory, prompted in part by the Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the jury further found beyond a reasonable doubt that Florez was responsible for a total of more than three but less than ten kilograms of heroin on the conspiracy counts of conviction.

At sentencing, the district court, relying on United States v. Booker, 543 U.S. 220, 258-59, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), concluded that it was not bound by the jury's finding as to any drug quantity in excess of the more-than-one-kilogram quantity of heroin needed to trigger a statutory minimum sentence of ten years. In calculating Florez's Sentencing Guidelines range, the court found that the defendant was responsible for "upwards of 16 kilos" of heroin. See U.S.S.G. § 2D1.1(c)(2) (providing base offense level 36 for drug crimes involving more than 10 but less than 30 kilograms of heroin). Because the district court further found that Florez played a supervisory role in the crimes of conviction, see id. § 3B1.1(b) (providing for three-level enhancement), it assigned him a total offense level of 39, which, with a criminal history category of I, resulted in a Guidelines range of 262 to 327 months' incarceration. Nevertheless, the district court elected to impose a non-Guidelines prison sentence of 210 months, taking into consideration the fact that Chepe, who had earlier pleaded guilty to his involvement in the same narcotics schemes before a different judge, had received a ten-year sentence.

II. Discussion

A. The Statute of Limitations Challenge

Florez submits that, because his criminal conduct occurred in 1997, his 2004 indictment is necessarily time-barred by the five-year statute of limitations applicable to non-capital federal crimes. See 18 U.S.C. § 3282. Florez acknowledges, as he must, that this limitations period is appropriately tolled during any time when he was a fugitive from justice. See 18 U.S.C. § 3290 ("No statute of limitations shall extend to any person fleeing from justice."). Nevertheless, he submits that the district court erred in tolling the statute of limitations in his case from June 10, 1998, the date of Chepe's arrest, to May 24, 2003, the date law enforcement authorities discovered Florez's whereabouts, because he was not fleeing from justice during that time. We disagree.

1. The Burden of Proof and Standard of Review

To toll a statute of limitations, it is the government's burden to show that a defendant was "fleeing from justice." 18 U.S.C. § 3290. In Jhirad v. Ferrandina, 536 F.2d 478, 484-85 (2d Cir.1976) ("Jhirad II"), we concluded that, in the context of an extradition proceeding, this burden can be carried by a preponderance of the evidence. See also Ross v. United States Marshal, 168 F.3d 1190, 1193-94 (10th Cir. 1999) (applying preponderance standard to interpretation of flight under § 3290 in extradition proceeding). Since then, a number of our sister circuits have ruled that a preponderance showing also satisfies the application of § 3290 to a United States criminal prosecution. See United States v. Greever, 134 F.3d 777, 781 (6th Cir.1998); United States v. Marshall, 856 F.2d 896, 900 (7th Cir.1988); United States v. Gonsalves, 675 F.2d 1050, 1054 (9th Cir.1982). As the Ninth Circuit explained, because proof of flight is not determinative of guilt, it is not fairly viewed as an element of the crime of conviction requiring proof beyond a reasonable doubt. See United States v. Gonsalves, 675 F.2d at 1054 (citing Lego v. Twomey, 404 U.S. 477, 487, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (holding that government need only prove voluntariness of confession by preponderance of evidence and noting that "guilty verdict is not rendered less reliable simply because the admissibility of a confession is determined by a less stringent standard")).

One district court outside this circuit has ruled to the contrary, holding that § 3290 flight must be proved beyond a reasonable doubt to a jury "just like any other element of the case." United States v. Owens, 965 F.Supp. 158, 163 (D.Mass. 1997). We are not persuaded. Due process demands "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [a defendant] is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Whether Florez fled from justice is not a fact constituting any part of the narcotics crimes with which he was charged. Rather, it is a fact that determines whether the law will toll the statute of limitations for Florez's prosecution on any non-capital crime. Thus, while proof of Florez's flight may well have been necessary to avoid a statute-of-limitations dismissal of his indictment, such flight did not thereby become an element of the charged narcotics offenses. For this reason, we conclude that the flight necessary to support § 3290 tolling is properly determined by the trial court rather than the jury.² Further, we join our sister circuits in holding that, in a criminal prosecution, the government carries its § 3290 burden when it proves a defendant's flight from justice by a preponderance of the evidence.

With this burden in mind, we review the district court's findings of fact relevant to the application of § 3290 only for clear error, and we review de novo its legal conclusion that these facts establish flight as specified by the statute. See Ross v. United States Marshal, 168 F.3d at 1193; United States v. Greever, 134 F.3d at 779; cf. United States v. Jaffe, 417 F.3d 259, 263 (2d Cir.2005) (holding that, in reviewing restitution component of sentence, issues of law are reviewed de novo and findings of fact for clear error).

2. The Contours of Flight Under 18 U.S.C. § 3290

In construing the flight requirement of § 3290, we begin with Streep v. United States, 160 U.S. 128, 16 S.Ct. 244, 40 L.Ed. 365 (1895), in which the Supreme Court considered the meaning of the phrase "fleeing from justice" as used in an earlier statute creating an exception to the application of a limitations period. In Streep, the Court stated:

It is unnecessary, for the purposes of the present case, to undertake to give an exhaustive definition of the[] words ["any person fleeing from justice"]; for it is quite clear that any person who takes himself out of the jurisdiction, with the intention of avoiding being brought to justice for a particular offence, can have no benefit of the [statute of] limitation[s], at least when prosecuted...