U.S. v. Gallego

• Decision Date: 13 April 2001
• Docket Number: No. 97-5293,97-5293
• Citation: 247 F.3d 1191
• Parties: (11th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Felix GALLEGO, a.k.a. Ica, Evelio Rizo Sr., Lazaro Gallego Jr., a.k.a. Gamba, Abel Rizo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1191

247 F.3d 1191 (11th Cir. 2001)

UNITED STATES of America, Plaintiff-Appellee, v. Felix GALLEGO, a.k.a. Ica, Evelio Rizo Sr., Lazaro Gallego Jr., a.k.a. Gamba, Abel Rizo, Defendants-Appellants.

No. 97-5293.

United States Court of Appeals, Eleventh Circuit.

April 13, 2001.

April 25, 2001.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeals from the United States District Court for the Southern District of Florida. (No. 96-00075-CR-SH), Shelby Highsmith, Judge.

Before TJOFLAT, HILL and POLITZ^*, Circuit Judges.

TJOFLAT, Circuit Judge:

This case is an appeal by members of a drug conspiracy. Although the appellants raise a host of issues on appeal,¹ the only claim that merits discussion are that their sentences violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm the convictions and sentences.

I.

Four appellants are before us in the instant appeal: Felix Gallego ("Felix"), Lazaro Gallego Jr. ("Lazaro"), Abel Rizo ("Abel"), and Evelio Rizo Sr. ("Rizo Sr.").² The appellants were indicted by a Southern District of Florida grand jury on October 9, 1996, on charges of conspiracy, possession of cocaine, robbery, and firearms violations.³ The indictment was sealed by order of the court.

The appellants were allegedly members of a group, comprised of more than fifteen individuals, that carried out home invasions and robberies to obtain money, drugs, and other valuable items from persons believed to be drug traffickers. Such robberies are generally known as "rip-offs." The usual modus operandi was for a member of the group (the "santo") to obtain information about other individuals who sold narcotics. (The santo would receive a larger portion of the robbery proceeds for his role in the offense.) The santo would report the information to Rizo Sr. and his son Evelio Rizo Jr. ("Evelito"). Next, the santo would make a couple of small, controlled drug purchases from the targeted victim while other members were conducting surveillance to obtain information about where the victim kept the drugs and drug proceeds (the "stash-house"). Once the stash-house was identified, members would conduct the rip-off by posing as police officers and forcibly robbing the victims by raiding the stash-house, often at gunpoint. Proceeds of the rip-off were taken back to the Rizos' home in Hialeah, Florida, where Evelito and Rizo Sr. would tally the robbery proceeds and distribute them to members of the group. If any member of the group was arrested, the group would post bond and hire counsel to ensure that the member would not cooperate with authorities and would not provide incriminating information about the group.

Abel and Rizo Sr. were arrested on June 3 and July 10, 1996, respectively, pursuant to the first superseding indictment. On November 15, 1996, they entered pleas of not guilty to the charges in the second superseding indictment. Felix was arrested on October 29, 1996, and Lazaro was arrested on November 6, 1996. They also pleaded not guilty. The four appellants went to trial, along with two others.⁴ A jury found the appellants guilty as charged (except Rizo Sr., who was acquitted on Count Eleven, a possession count). The district court subsequently dismissed Counts Six and Ten (firearms counts) against Rizo Sr., pursuant to Fed.R.Crim.P. 29.⁵ The court denied all other motions by the appellants for acquittals or new trials. Thereafter, the court imposed the following sentences: Abel received 468 months' imprisonment, Felix received 324 months' imprisonment, and Lazaro and Rizo Sr. each received life imprisonment. Each appellant also was sentenced to five years' supervised release.

II.

The appellants contend that their sentences violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). They did not raise timely constitutional objections on the Apprendi issues,⁶ and we therefore review their Apprendi claims for plain error. See United States v. Candelario, 240 F.3d 1300, 1303-06 (11th Cir.2001). The four prongs of plain error review are: (1) there must be error; (2) the error must be plain; (3) the error must affect the appellant's substantial rights; and (4) the error must "seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997); see also Fed.R.Crim.P. 52(b); United States v. Swatzie, 228 F.3d 1278, 1281 (11th Cir.2000). Before we may correct an error that was not timely raised, all four prongs must be satisfied. See Candelario, 240 F.3d at 1309.

A.

Abel received concurrent sentences of 168 months' imprisonment on Count One (conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. 846) and Count Two (possession of cocaine, with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2). He also received concurrent terms of five years' supervised release on these counts.⁷

The Supreme Court established in Apprendi, 120 S.Ct. at 2362-63, that "any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Applying Apprendi 's constitutional principle to drug cases proceeding under 21 U.S.C. 841, we have held that the quantity of drugs must be charged in the indictment and proven to a jury beyond a reasonable doubt if a defendant is to be sentenced under a penalty provision of 21 U.S.C. 841 (such as section 841(b)(1)(A) or section 841(b)(1)(B)) that contains a quantity amount. United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000). If an indictment contains no allegation of drug quantity and the jury convicts but fails to make a quantity determination, a defendant is subject to the penalties prescribed in 21 U.S.C. 841(b)(1)(C), which requires a sentence of not more than twenty years' imprisonment for possession of an unspecified quantity of cocaine.⁸ Id. at 1327.

We have held, however, that "there is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the statutory maximum set forth in 841(b)(1)(C) for a cocaine offense without regard to drug quantity." United States v. Gerrow, 232 F.3d 831, 834 (11th Cir.2000); cf. Candelario, 240 F.3d at 1306 ("[T]here is an error if the defendant's sentence exceeds the maximum sentence allowed by a statute without regard to quantity."). In the instant case, Abel's sentences of 168 months' imprisonment on Counts One and Two fall below the twenty year maximum prescribed by section 841(b)(1)(C). There is therefore no error under Apprendi.⁹

B.

Count One of the indictment charged Felix with conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. 846. The jury convicted Felix and the district court sentenced him, pursuant to 21 U.S.C. 841(b)(1)(A), to a term of 324 months' imprisonment and five years' supervised release on Count One.¹⁰

Felix satisfies the first two prongs of plain error review. His sentence of 324 months' imprisonment exceeds the maximum of twenty years' imprisonment prescribed by section 841(b)(1)(C). This error is plain. See Candelario, 240 F.3d at 1309 (holding that an Apprendi error in a drug case is plain on direct appeal).

Felix fails, however, to satisfy the third prong of plain error review because he is unable to carry his burden of demonstrating that the error affected his substantial rights. As he admitted in an objection to the Pre-Sentence Investigation Report ("PSI") and at the sentencing hearing, Felix personally possessed four kilograms of cocaine during a rip-off in October 1993.¹¹ Therefore, a minimum quantity of four kilograms was not in controversy. Four kilograms of cocaine exceeds the threshold amount necessary for sentencing under 21 U.S.C. 841(b)(1)(B), which requires a finding of at least 500 grams of cocaine. Because section 841(b)(1)(B) prescribes a sentencing range of five to forty years' imprisonment, and because Felix's sentence of 324 months' imprisonment is less than forty years, we find that Felix's substantial rights were not violated by the error in his sentencing.¹² See United States v. Pease, 240 F.3d 938, 944 (11th Cir.2001). We need not visit the fourth prong of plain error review since Felix has not satisfied the third prong. See Candelario, 240 F.3d at 1312.

C.

Lazaro was sentenced on Count One (conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. 846) and Count Sixteen (possession of cocaine, with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2) to concurrent life sentences.¹³ Concurrent terms of five years' supervised release were also set for these counts.

Lazaro satisfies the first two prongs of plain error review. His sentences of life imprisonment exceed the maximum of twenty years' imprisonment prescribed by 21 U.S.C. 841(b)(1)(C), and the error is plain.

Lazaro fails to satisfy the third prong of plain error review-his substantial rights were not affected. Count Sixteen was based on a rip-off that occurred on December 31, 1994. The only testimony at trial relating to an amount involved in the rip-off was that 326 kilograms of cocaine were obtained. Of these 326 kilograms, Lazaro personally received twenty-five kilograms for his active role in the rip-off.¹⁴ Lazaro did not object to or contest this amount at trial, and he did not put on any contrary testimony (either at trial or at sentencing) as to a different amount.¹⁵ Given the undisputed testimony that 326 kilograms of cocaine were involved in Count Sixteen, we find that there was no way the jury could convict on Count Sixteen and yet determine that the quantity involved was less than five kilograms of cocaine. 21 U.S.C. 841(b)(1)(A) authorizes a sentence of ten years to life imprisonment for possession of five kilograms or more of cocaine. Because the jury must have found at least five...