U.S. v. Guerra, No. 1459

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore MINER and ALTIMARI, Circuit Judges, and KELLEHER; ALTIMARI
Citation888 F.2d 247
PartiesUNITED STATES of America, Appellee, v. Ricky GUERRA, Defendant-Appellant. ocket 89-1176.
Decision Date23 October 1989
Docket NumberNo. 1459,D

Page 247

888 F.2d 247
UNITED STATES of America, Appellee,
v.
Ricky GUERRA, Defendant-Appellant.
No. 1459, Docket 89-1176.
United States Court of Appeals,
Second Circuit.
Argued Aug. 14, 1989.
Decided Oct. 23, 1989.

Page 248

The Legal Aid Society Federal Defender Services Unit, New York City (Helen Coady, New York City, of counsel), for defendant-appellant.

Stephen Fishbein, Asst. U.S. Atty., New York City (Benito Romano, U.S. Atty., S.D.N.Y., Kerri Martin Bartlett, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before MINER and ALTIMARI, Circuit Judges, and KELLEHER, District Judge. *

ALTIMARI, Circuit Judge:

The sole issue raised on this appeal concerns the requisite standard of proof to establish "relevant conduct" under the Sentencing Guidelines. Defendant-appellant Ricky Guerra appeals a judgment of the United States District Court for the Southern District of New York (Charles S. Haight, Judge ) that imposed a sentence on him pursuant to the Sentencing Reform Act of 1984, as amended, 18 U.S.C. Sec. 3551 et seq. and 28 U.S.C. Secs. 991 et seq. Defendant was charged in a two count indictment, and pled guilty to Count I, distributing crack in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(C). Count II, possessing with intent to distribute an additional quantity of crack, was dismissed pursuant to a plea agreement with the government. The district court sentenced defendant to twenty-one months of imprisonment followed by four years of supervised release. On this appeal, defendant does not dispute the underlying conviction, but instead claims that the district court deprived him of due process. Specifically, defendant contends that in order for the additional crack to be factored as "relevant conduct" under Section 1B1.3 of the Sentencing Guidelines, due process mandates that defendant's intention to distribute be established beyond a reasonable doubt.

For the reasons stated below, we affirm the judgment of the district court.

BACKGROUND

On August 31, 1988, at approximately 2:20 p.m., Ricky Guerra was standing in

Page 249

front of 201 West 42nd Street, when he was approached by an undercover police officer who indicated interest in purchasing crack. In response, Guerra removed two vials of crack from his mouth, and sold them for twenty dollars to the officer. Ten minutes later, Guerra was arrested at the same location. At the time of his arrest, he had two additional vials of crack in his mouth, and was wearing an electronic beeper. Guerra was charged with two separate crimes. Count One charged him with distributing two vials of crack in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(C). Count Two charged him with possessing with intent to distribute the additional two vials in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(C).

Subsequently, Guerra entered into a plea agreement with the government. In exchange for his guilty plea to Count One, the second count was dismissed. The guilty plea was accepted by Judge Haight on December 16, 1988, and a pre-sentence report was prepared pursuant to the Sentencing Guidelines. In calculating Guerra's base offense level, the probation officer included the weight of the two vials of crack sold to the undercover officer as well as those found in Guerra's mouth at the time of his arrest, resulting in a base level of 14, see Guidelines Sec. 2D1.1(a)(3). In addition, the probation officer recommended a two-level reduction in recognition of Guerra's acceptance of responsibility, see id. Sec. 3E.1.1(a). As a consequence of his six prior convictions and the fact that this offense was committed less than two years after his release from imprisonment for his last conviction, Guerra received a criminal history category of IV, see id. Sec. 4A1.1. Accordingly, Guerra's sentencing range called for a term of imprisonment from 21 to 27 months.

In a letter dated March 20, 1989, the defendant objected to the pre-sentence report, inter alia, on the ground that factoring the additional two vials of crack into the base offense level amounted to sentencing him for a separate crime that had not been proved beyond a reasonable doubt. He suggested that the appropriate sentencing range, absent the two additional vials, was 15 to 21 months of imprisonment. Immediately before sentencing, a hearing was held before Judge Haight. At the hearing, the defendant did not dispute the facts concerning the initial sale of crack or his subsequent arrest. He maintained, however, that the additional two vials of crack were intended for personal use, not for sale. Since the facts were not controverted, Judge Haight observed: "The reasonable inference to which I am inescapably led is that the two vials in the mouth at the time of arrest were intended for the same sort of distribution that had occurred from the mouth with respect to the other two vials some ten minutes earlier." Sentencing Transcript at 3. Rejecting the defendant's position, Judge Haight held that the government had met its burden of proving Guerra's intent to distribute by a preponderance of the evidence.

Judge Haight further held that the additional two vials were correctly...

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71 practice notes
  • U.S. v. Sanchez, Nos. 89-1600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...is satisfied if the facts relied on in Guidelines sentencings are proven by a preponderance of the evidence. See United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989); United States v. McDowell, 888 F.2d 285, 291 (3rd Cir.1989); United States v. Urrego-Linares, 879 F.2d 1234, 1238 (4th C......
  • U.S. v. Galloway, No. 90-3034
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 17, 1992
    ...U.S. ----, 112 S.Ct. 203, 116 L.Ed.2d 163 (1991); United States v. Ebbole, 917 F.2d 1495, 1498-99 (7th Cir.1990); United States v. Guerra, 888 F.2d 247, 249-50 (2d Cir.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990); United States v. Wright, 873 F.2d 437, 441-42 (......
  • U.S. v. Concepcion, Nos. 1660
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 25, 1993
    ...v. Cousineau, 929 F.2d 64, 67 (2d Cir.1991); United States v. Shoulberg, 895 F.2d 882, 886-87 (2d Cir.1990); United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989) (preponderance standard applicable to calculation of offense level based on defendant's possession of uncharged narcotics), c......
  • U.S. v. Kikumura, No. 89-5129
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 5, 1990
    ...v. Wilson, 900 F.2d 1350, 1354 (9th Cir.1990); United States v. Frederick, 897 F.2d 490, 493 (10th Cir.1990); United States v. Guerra, 888 F.2d 247, 250-51 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990); United States v. Ehret, 885 F.2d 441, 444 (8th Cir.......
  • Request a trial to view additional results
71 cases
  • U.S. v. Sanchez, Nos. 89-1600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...is satisfied if the facts relied on in Guidelines sentencings are proven by a preponderance of the evidence. See United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989); United States v. McDowell, 888 F.2d 285, 291 (3rd Cir.1989); United States v. Urrego-Linares, 879 F.2d 1234, 1238 (4th C......
  • U.S. v. Galloway, No. 90-3034
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 17, 1992
    ...U.S. ----, 112 S.Ct. 203, 116 L.Ed.2d 163 (1991); United States v. Ebbole, 917 F.2d 1495, 1498-99 (7th Cir.1990); United States v. Guerra, 888 F.2d 247, 249-50 (2d Cir.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990); United States v. Wright, 873 F.2d 437, 441-42 (......
  • U.S. v. Concepcion, Nos. 1660
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 25, 1993
    ...v. Cousineau, 929 F.2d 64, 67 (2d Cir.1991); United States v. Shoulberg, 895 F.2d 882, 886-87 (2d Cir.1990); United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989) (preponderance standard applicable to calculation of offense level based on defendant's possession of uncharged narcotics), c......
  • U.S. v. Kikumura, No. 89-5129
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 5, 1990
    ...v. Wilson, 900 F.2d 1350, 1354 (9th Cir.1990); United States v. Frederick, 897 F.2d 490, 493 (10th Cir.1990); United States v. Guerra, 888 F.2d 247, 250-51 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990); United States v. Ehret, 885 F.2d 441, 444 (8th Cir.......
  • Request a trial to view additional results

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