U.S. v. Garcia, s. 93-2512
| Decision Date | 23 March 1995 |
| Docket Number | 93-3881,Nos. 93-2512,s. 93-2512 |
| Citation | 53 F.3d 334 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo GARCIA, a/k/a Rafael Guereca, and Jose Rivera, Defendants/Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before PELL, FLAUM and MANION, Circuit Judges.
Rafael Guereca and Jose Rivera were convicted by a jury of conspiracy to distribute heroin and distribution of heroin. 21 U.S.C. Secs. 841(a)(1) and 846. Guereca had sold heroin to an undercover agent on four different occasions. Guereca was sentenced to life imprisonment, while Rivera received a 360 month sentence. On appeal, Guereca's and Rivera's court-appointed counsels filed a joint motion to withdraw and a supporting brief, claiming that any appeals would be frivolous. See Anders v. California, 386 U.S. 738 (1967); United States v. Edwards, 777 F.2d 364 (7th Cir.1985). Pursuant to Circuit Rule 51(a), we informed Guereca and Rivera of their right to respond to their attorneys' motion. Only Rivera has filed a response.
Before we may grant counsels' motion, we must be satisfied that counsels have provided their clients with a diligent and thorough search of the record for any arguable claim supporting grounds for an appeal. Only if we agree with counsels' conclusion that the appeals are frivolous may we grant the motion to withdraw and dismiss the appeals. United States v. Eggen, 984 F.2d 848, 850 (7th Cir.1993).
Counsels raise the potential issue that the evidence may have been insufficient to prove the existence of a conspiracy especially given that there were no taped discussions between Guereca and Rivera to establish a conspiratorial agreement between them. A defendant attempting to overturn a conviction on the grounds of insufficient evidence bears a heavy burden. United States v. Koen, 982 F.2d 1101, 1105 (7th Cir.1992). The conviction will be upheld if the evidence, when viewed in the light most favorable to the government, establishes that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). This standard does not permit the appellate court to reweigh the evidence or to resolve conflicts in testimony. Id. at 319-20. In a conspiracy case, the government's burden at trial is to prove that a conspiracy existed and that the defendant knowingly agreed to join it. United States v. Pazos, 993 F.2d 136, 139 (7th Cir.1993). The government's evidence, however, can be entirely circumstantial. Id.; United States v. Durrive, 902 F.2d 1221, 1228 (7th Cir.1990).
In this case, all four of Guereca's drug transactions with undercover agent Nikos Eliopoulos were taped. In the first transaction, a confidential informant went to the agreed upon restaurant and observed Rivera giving Guereca the package that was later delivered to Agent Eliopoulos. During the transaction, which eventually took place in Agent Eliopoulos's vehicle outside the restaurant, Guereca referred to Rivera as a "partner" while Rivera observed the sale from a street corner. In another transaction, Rivera delivered the heroin to Agent Eliopoulos in a sale negotiated by Guereca. Guereca had agreed to sell one kilogram of heroin to Agent Eliopoulos, but had delivered only one half of the agreed amount. He informed the agent that the rest was coming. Thereafter, Rivera arrived with another co-defendant, entered the DEA vehicle with Guereca and handed the second half of the one kilogram to Agent Eliopoulos. The defendants were arrested at the conclusion of that transaction. After Rivera was advised of his Miranda rights, he admitted to delivering the drugs. At trial, Agent Eliopoulos's testimony was corroborated by the confidential informant who was present during all of the transactions, and by another DEA agent who participated as a surveillance agent at the last transaction. The record discloses sufficient evidence to establish that Guereca and Rivera were distributing drugs as partners. Because a reasonable juror could conclude that the two defendants had conspired to distribute heroin, any appeal challenging the sufficiency of the evidence would be frivolous.
Guereca's counsel raises the issue of whether the district court properly aggregated the amount of drugs from all four transactions in calculating Guereca's sentence. Specifically, counsel suggests that Guereca's base offense level should have been based on less than one kilogram of heroin because Guereca did not personally deliver the second half of the one kilogram in the last transaction, and because none of the four transactions involved more than one kilogram of heroin. 1 Guereca was convicted of all four distribution counts as well as the conspiracy count. Under the sentencing guidelines, his base offense level was to be determined by the total amount of drugs involved, which was approximately 1,141 grams of heroin. See U.S.S.G. Secs. 2D1.1(a)(3), 3D1.2(d). The district court correctly found that the amount of heroin involved in Guereca's offense was more than one kilogram but less than three kilograms, see U.S.S.G. Sec. 2D1.1(c)(6), and thus, any appeal challenging this calculation would be frivolous.
Counsel also raises the question of whether the district court erred in refusing to allow a special interrogatory on the amount of drugs involved in Guereca's offense. Counsel correctly observes that the amount of drugs involved is not an element of the offense and that the Sixth Amendment requires that a jury determine only questions of guilt or innocence. Because punishment is the province of the court, the sentencing court, not the jury, determines the amount of drugs involved in an offense. United States v. McKenzie, 922 F.2d 1323, 1327-28 (7th Cir.), cert. denied, 502 U.S. 854 (1991); see also United States v. Trujillo, 959 F.2d 1377, 1383-84 (7th Cir.), cert. denied, 113 S.Ct. 277 (1992); United States v. Savage, 891 F.2d 145 (7th Cir.1989) (). The district court was entitled to refuse to submit special interrogatories that turn on sentencing findings to the jury. United States v. Smith, 938 F.2d 69 (7th Cir.) (per curiam), cert. denied, 502 U.S. 891 (1991). Thus, any challenge based on this ground would be frivolous.
Finally, counsel raises the potential issue of sentencing entrapment, 2 noting that Guereca would not have been sentenced to mandatory life imprisonment had the DEA arrested him sooner. Guereca did not raise this argument before the district court as a mitigating circumstance for a downward departure, see 18 U.S.C. Sec. 3553(b), and thus, to the extent appealable, the issue would be reviewed only for plain error. Fed.R.Crim.P. 52(b). Although some courts do not explicitly make the distinction between sentencing entrapment and sentencing manipulation, see, e.g., United States v. Rosa, 17 F.3d 1531, 1551 (2d Cir.1994), we have noted that in cases where the defendant does not claim that he lacked the predisposition to engage in the illegal transactions, a challenge to the government's conduct of manipulating the defendant's sentence by the amount of drugs involved is characterized as a "sentencing manipulation" claim. See United States v. Okey, No. 94-2588, slip op. at 3-4 (7th Cir. Feb. 8, 1995); United States v. Cotts, 14 F.3d 300, 306 n. 2 (7th Cir.1994). Counsel's argument, thus, is perhaps more appropriately referred to as "sentence manipulation" because its focus is not on whether Guereca was predisposed to commit the crime, but instead on whether the government stretched out the investigation merely to increase the sentence.
The circuits are split on whether to recognize sentencing entrapment/manipulation claims. While one federal circuit has expressly rejected the sentencing entrapment/manipulation defense, see United States v. Williams, 954 F.2d 668, 672-73 (11th Cir.1993), three circuits have acknowledged that the claim may be legally relied upon for a downward departure. 3 See United States v. Staufer, 38 F.3d 1103, 1108 (9th Cir.1994); United States v. Barth, 990 F.2d 442, 425 (8th Cir.1993); United States v. Connell, 960 F.2d 191, 196 (1st Cir.1992). Still three other circuits have not decided whether the doctrine is viable and have instead found that the facts presented do not support a sentencing entrapment/manipulation claim. See United States v. Raven, 39 F.3d 428, 438 (3d Cir.1994); United States v. Jones, 18 F.3d 1145, 1154-55 (4th Cir.1994); United States v. Rosa, 17 F.3d 1531, 1551 (2d Cir.1994). This circuit has questioned the validity of the defense of sentencing manipulation/entrapment, see Okey, No. 94-2588, slip op. at 3-4; United States v. Winston, 34 F.3d 574, 581 n. 4 (7th Cir.1994); United States v. Cotts, 14 F.3d 300, 306 n. 2 (7th Cir.1994)), and has noted that "[o]ur inclination ... is not to subject isolated government conduct to a special brand of scrutiny when its effect is felt in sentence, as opposed to offense, determination." Cotts, 14 F.3d at 306 n. 2. Nevertheless, whether a defendant may rely on the doctrine is still an open question in this circuit. See Okey, No. 94-2588, slip op. at 5 () We cannot say that any appeal raising the sentencing entrapment/manipulation claim would be legally frivolous. Because there is a non-frivolous issue with respect to...
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