U.S. v. Gonzalez
| Decision Date | 11 September 1990 |
| Docket Number | No. 90-1088,90-1088 |
| Citation | 915 F.2d 1557 |
| Parties | Unpublished Disposition NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. UNITED STATES, Appellee, v. Sigifredo GONZALEZ, a/k/a Rogerigo Gonzalez, Petitioner, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Appeal from the United States District Court for the District of Rhode Island; Raymond J. Pettine, Senior District Judge.
Sigifredo L. Gonzales on brief pro se.
Lincoln C. Almond, United States Attorney, and Kenneth P. Madden, Assistant U.S. Attorney, on brief, for appellee.
Before BREYER, Chief Judge, and LEVIN H. CAMPBELL and TORRUELLA, Circuit Judges.
Following a jury verdict, appellant Sigifredo L. Gonzales was convicted along with other defendants on four counts of importing and possessing with intent to distribute over 5 kilos of cocaine in violation of 21 U.S.C. Secs. 952(a) and 841(a)(1), Counts II and IV, and conspiracy to do the same in violation of 21 U.S.C. Secs. 963 and 846, Counts I and III. In September 1987 he received concurrent 25 year sentences on all counts plus twenty years of supervised release.
The convictions of all defendants were affirmed. United States v. Rengifo, 858 F.2d 800 (1st Cir.1988), cert. denied, 109 S.Ct. 1752 (1989). On appeal, the defendant had argued that certain evidence seized without a warrant should have been suppressed, and that there was insufficient evidence both to arrest and to support the guilty verdicts. We accept the underlying facts as detailed in Rengifo, id. at 802-03, and review the relevant background.
On direct review, we found the evidence against Gonzales to be overwhelming. Id. at 806. Government agents testified that they had seen the appellant (and another co-defendant) receive a bag of cocaine from a ship. Their actions immediately after they possessed the bag were also observed. One agent identified the petitioner at trial. This court found the agents' testimony alone sufficient to convict Gonzales on the two substantive charges of importation and possession with intent to distribute cocaine. The warrantless seizure of the key to the appellant's motel room (found in co-defendant's motel room) was upheld because, under the circumstances, the agents had probable cause to believe it was connected to the crime. Id. at 805-06. In Gonzales' room were found sketches and writings that tied him to the other defendants and, this court found, "clearly established" guilt on the conspiracy charges. Id. at 806.
Gonzales then filed a pro se motion to correct sentence under 28 U.S.C. Sec. 2255 which presented eight grounds for relief. The district court considered the claims and dismissed the motion in its entirety. United States v. Gonzales, Memorandum and Order, No. 87-019-05 P (D.R.I. Dec. 13, 1989). Since the appellant's pro se brief tracks his Sec. 2255 supporting memorandum below, we address each challenge and, in so doing, find no error in the district court's decision.
The appellant first argues that his sentence was illegal because the district court erroneously applied the ten year mandatory minimum penalty of 21 U.S.C. Sec. 960(b)(1) for the Sec. 952(a) importation offense (Count II) to the conspiracy to import offense under 21 U.S.C. Sec. 963 (Count I). Gonzales was convicted under Sec. 963 conspiracy provisions in existence before the November 18, 1988 amendments which made punishment for drug conspiracies identical to those for the offenses that were the object of the conspiracy. See also 21 U.S.C. Sec. 846. Prior to that date a drug conspiracy had the same statutory maximum as the object crime, but no statutory minimum was set out. This ambiguity was remedied by the 1988 conforming amendment. See United States v. Rush, 874 F.2d 1513, 1514-15 (11th Cir.1989), a case relied upon by the appellant. As here, the appellants in Rush were convicted under the version of 21 U.S.C. Sec. 963 in effect before the 1988 amendments. Rush held that the mandatory minimum sentences under 21 U.S.C. Sec. 960(b)(1) did not apply to the Sec. 963 conspiracy conviction. See also United States v. Curry, 902 F.2d 912, 917 (11th Cir.1990) (). In Rush, the appellant's respective ten and twelve year sentences under Sec. 963 were vacated because the district court believed that the mandatory minimums of Sec. 960(b)(1) had applied. Id. at 1515. Even though Gonzales was given a (concurrent) 25 year sentence on the Sec. 963 conspiracy, he seems to be arguing that the district court, in arriving at the 25 year term, calculated the (conspiracy to import) sentence from a minimum base of ten years.
There is no indication that the district court in fact applied, or even considered, mandatory minimums with respect to the Sec. 963 sentence. Since Gonzales was sentenced before the 1988 amendments to both the Sec. 963 conspiracy to import (Count I) and the Sec. 846 conspiracy to possess with intent to distribute (Count III), the ten year minimums associated with the substantive offenses, Sec. 952(a) and Sec. 841(a)(1) respectively, did not apply to the conspiracy convictions. Under the pre-amendment versions of both conspiracy statutes in effect at the time of the crime, the district court had the authority to impose different sentences for the substantive and related conspiracy offenses, but it was not obligated to do so. The mere fact that identical 25 year sentences were imposed does not require a conclusion that the Count I conspiracy sentence is illegal.
At sentencing, the district judge indicated that the case--involving 115 pounds of almost pure cocaine worth millions in street dollars--was one of the most serious narcotic cases heard by the court. In denying the Sec. 2255 petition, the district court characterized the amount of cocaine as the largest ever to come before the court. Such an offense, the court concluded, required a substantial sentence. Memorandum and Order at 2.
district court imposed a 25 year sentence under Sec. 963 primarily because of the seriousness of the crime. Nothing remotely suggests that the district court ever considered a term of less than ten years. The 25 year term was well within Sec. 960(b)(1)'s ten year to life term parameter, and the appellant points to no record indication or even implication that a mandatory minimum term entered into the sentencing decision in any way.
We conclude that while no mandatory minimum sentence applied to the Sec. 963 conviction, the district court made clear that Gonzales would have been sentenced to a term greater than 10 years because of the serious nature of the offense. Therefore the sentence on this count is unaffected whether or not a mandatory minimum came into play.
Gonzales contends that the evidence was insufficient to convict him on the two substantive charges: importation under 21 U.S.C. Sec. 952(a), and possession with intent to distribute under 21 U.S.C. Sec. 841(a)(1). He argues that it was not established that he was either a principal or an aider and abettor under 18 U.S.C. Sec. 2. While challenges to the sufficiency of the evidence may be made by a Sec. 2255 motion, see, e.g., Toulabi v. United States, 875 F.2d 122, 124 (7th Cir.1989), citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), our prior consideration of that claim precludes further review. 1 See e.g., Santiago v. United States, 889 F.2d 371, 377 (1st Cir.1989); Tracey v. United States, 739 F.2d 679, 682 (1st Cir.1984); see also United States v. Hobson, 825 F.2d 364, 366 (11th Cir.1987), vacated on other grounds, 109 S.Ct. 3233. Gonzales presents no reason to depart from the usual rule. Cf. Robson v. United States, 526 F.2d 1145, 1147-48 (1st Cir.1975).
Similarly, we will not consider a challenge to the sufficiency of the evidence supporting the conviction on the Count III conspiracy charge under 21 U.S.C. Sec. 846. To the extent that Gonzales contends that under 21 U.S.C. Sec. 841(a)(1) he cannot be convicted of both conspiring to distribute and conspiring to possess with intent to distribute the same quantity of cocaine, we have held that as long as the evidence is sufficient as to any one of the acts charged in the indictment, any such variance between the statute and an otherwise valid indictment is immaterial. See, e.g., United States v. Boyle, 675 F.2d 430, 433 (1st Cir.1982); see also United States v. Doherty, 867 F.2d 47, 55 (1st Cir.), cert. denied, 109 S.Ct. 3243 (1989).
Gonzales next challenges, on double jeopardy grounds, his convictions under both conspiracy statutes, Secs. 963 and 846. 2 He appears to argue that only one conspiracy can exist for an ongoing offense, and states that even though his sentences run concurrently, the allegedly redundant conviction portends adverse collateral consequences. While concurrent sentences on two convictions for the same conduct is impermissible punishment when the elements of each offense are identical, Ball v. United States, 470 U.S. 856, 861-65 (1985), the Supreme Court has held that consecutive sentences for violations of Secs. 963 and 846 are permitted because each provision proscribes different conspiracy objectives--importation as opposed to distribution. Albernaz v. United States, 450 U.S. 333, 336-43 (1981). In United States v. Christensen, 732 F.2d 20 (1st Cir.1984), we recognized that multiple conspiracies can accompany separate object crimes, and form separate statutory offenses, as long as "different ends were at stake [and] that each [conspiracy] required proof of a fact that the other did not." Id. at 23. In Christensen we expressly disavowed the holding of United States v. Honneus, 508 F.2d 566 (1st Cir.1974), a case relied upon by the appellant, and concluded that,...
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