U.S. v. Guerrero, 158
| Decision Date | 12 December 1988 |
| Docket Number | D,No. 158,158 |
| Citation | 863 F.2d 245 |
| Parties | UNITED STATES of America, Appellee, v. Nelson GUERRERO, Defendant-Appellant, Cesar Rivera and Anthony Medina, Defendants. ocket 88-1198. |
| Court | U.S. Court of Appeals — Second Circuit |
Richard Ware Levitt, New York City, for defendant-appellant.
David C. James, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., Kevin O'Regan, Asst. U.S. Atty., on the brief), for appellee.
Before FEINBERG, Chief Judge, NEWMAN and GARTH, * Circuit Judges.
This appeal presents two issues concerning the application of the Sentencing Guidelines. One, likely to recur in the future, is whether a sentencing judge may depart upward from a guideline range because of the amount of narcotics involved, notwithstanding the fact that the United States Sentencing Commission has established a hierarchy of guideline ranges scaled in relation to narcotic quantities. A preliminary issue, pertinent only to offenses committed during the interval between November 1, 1987, and January 15, 1988, is whether the appropriate guideline range for a narcotics offense is to be determined solely by the quantity of narcotics handled on the day of the offense or may be determined by the amount of narcotics involved in the defendant's overall scheme. These issues arise on an appeal by Nelson Guerrero from a judgment of the District Court for the Eastern District of New York (Jack B. Weinstein, Judge) convicting him, upon his guilty plea, of distributing heroin, in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(C) (1982 & Supp. IV 1986). Guerrero's sentence includes a prison term of sixty-three months. We conclude that the sentence is valid and therefore affirm.
The indictment charged Guerrero, Cesar Rivera, and others with conspiracy (count 1) and the substantive offense (count 2) of distributing more than 100 grams of heroin on December 11, 1987, and Guerrero alone with distributing an unspecified quantity of a Schedule I narcotic drug on December 4, 1988 (count 3). Pursuant to a plea agreement, Guerrero pled guilty to count 3, and the Government dismissed counts 1 and 2 as to him. At his plea allocution, Guerrero acknowledged that he had obtained a small sample of heroin from Rivera and that on December 4 he had given it to a person he believed was interested in purchasing narcotics. The "purchaser" was in fact a Government informant.
The plea agreement included no agreement as to the ultimate sentence to be imposed, see Fed.R.Crim.P. 11(e)(1)(C), but the prosecutor did agree that the defendant "should receive two points off for remorse and two points off for minimum participation in the deal." Plea Transcript at 13. This was a reference to a reduction from the base offense level of two levels for "acceptance of personal responsibility," pursuant to section 3E1.1(a) of the Guidelines, and two further levels for being "a minor participant" in the "criminal activity," pursuant to section 3B1.2 of the Guidelines. See United States Sentencing Commission, Sentencing Guidelines and Policy Statements (1987) (hereafter "Sentencing Guidelines").
Prior to sentencing, the prosecutor and defense counsel entered into a stipulation of facts to obviate the need for a Fatico hearing to establish circumstances pertinent to sentencing. See United States v. Fatico, 579 F.2d 707 (2d Cir.1978). The stipulation disclosed that Guerrero had held a series of conversations with the informant in which arrangements were made to have Guerrero introduce the informant to a potential supplier of heroin and to have the informant pick up from Guerrero a sample of heroin furnished by the supplier. Guerrero also acknowledged that he knew the informant intended to buy an additional quantity of heroin from the supplier. Finally, Guerrero admitted that he introduced Rivera to the informant on December 9 and remained present during a conversation in which the informant and Rivera negotiated a sale of heroin. The sale, made on December 11, involved 698 grams of heroin.
At sentencing, the defendant maintained that the appropriate base offense level was 12, which is the level prescribed for narcotics offenses involving less than five grams of heroin. Sentencing Guidelines Sec. 2D1.1 Drug Quantity Table. The defendant then urged a two-level discount for acceptance of responsibility, yielding a final offense level of 10. Maintaining his position that he had been convicted only of the isolated sale of the three gram sample and not the dismissed charges concerning the sale by Rivera and others of more than 100 grams, Guerrero did not urge the District Judge to enforce the prosecutor's agreement to make a further two-level reduction for being a minor participant in a criminal activity. For an offense level of 10, the guideline range for Criminal History Category I, which concededly applied to Guerrero, is six to twelve months.
The prosecution, supported by the probation officer, contended that the base offense level should be determined from the quantity involved in the overall scheme in which Guerrero was a participant. That level, they urged, was 28, the level specified for narcotics offenses involving between 400 and 699 grams of heroin. 1 The prosecutor then subtracted two levels for acceptance of responsibility and two more levels for being a minor participant, yielding a final offense level of 24. The guideline range for that offense level and Criminal History Category I is fifty-one to sixty-three months.
Judge Weinstein accepted the defendant's contention that the appropriate offense level was 10 (six to twelve months), but elected to depart upward because of the defendant's involvement in the total scheme, of which the sample distribution was a part:
I am departing upward because in this district a person who does what this defendant does is critical to the drug industry. He had repeated contacts in connection with the prospective sale of very large amounts. He knew that his role was that of assisting in selling very large amounts. He was not just a small street seller. He was a critical link in this process.
Sentencing Transcript at 10-11. The Judge then initially selected a sentence of sixty-five months and a fine of $200,000. Upon defense counsel's objection that this was two months more than the sentence Rivera had received, Judge Weinstein reduced the sentence to sixty-three months. After further argument concerning the fine, Judge Weinstein concluded that the amount of the fine should be reduced to $55,000. He explained that he believed the defendant was worth "at least" that amount, Sentencing Transcript at 14, and he also concluded, as explained in a subsequent written memorandum, that it was "highly probable that all of [Guerrero's] assets resulted from the drug trade." Memorandum of May 25, 1988, at 3. The sentence also included a five-year term of supervised release and a $50 assessment.
The dispute concerning the applicable guideline range requires interpretation of sections 1B1.2 and 1B1.3 of the Sentencing Guidelines as they existed prior to amendment on January 15, 1988. As issued by the Commission on April 13, 1987, applicable to offenses committed after November 1, 1987, section 1B1.2 provided:
(a) The court shall apply the guideline in Chapter Two (Offense Conduct) most applicable to the offense of conviction. Provided, however, in the case of conviction by a plea of guilty or nolo contendere containing a stipulation that specifically establishes a more serious offense than the offense of conviction, the court shall apply the guideline in such chapter most applicable to the stipulated offense.
(b) The court shall determine any applicable specific offense characteristic, victim-related adjustment, or departure from the guidelines attributable to offense conduct, according to the principles in Sec. 1B1.3 (Relevant Conduct).
Section 1B1.3, prior to amendment on January 15, 1988, provided that "all conduct ... relevant to the offense of conviction shall be taken into account" in determining "the seriousness of the offense conduct" and further provided that conduct ... relevant to the offense of conviction means: acts or omissions ... aided and abetted by the defendant ... that (1) are part of the same course of conduct, or a common scheme or plan, as the offense of conviction....
The Government contends that the District Judge should have selected the base offense level applicable to the totality of the conduct in which Guerrero participated, not simply his distribution of a small sample of heroin on December 4, 1988. This contention implicates the major controversy that occupied much of the attention of the Sentencing Commission during its consideration of the initial set of guidelines: whether a guideline should be selected according to a defendant's so-called "real offense"--what he did--or only according to the so-called "charge offense"--the offense for which he was convicted. As the Commission acknowledges, it initially sought to develop a " 'real offense system,' " then "experimented with a 'modified real offense system' " in its September 1986 preliminary draft and finally "moved closer to a 'charge offense' system" in its January 1987 Revised Draft and in the April 1987 version, which became effective on November 1, 1987. See Sentencing Guidelines ch. 1, pt. A, Sec. 4(a), at p. 1.5. But, as the Commission also acknowledges, "The system [reflected in the November 1, 1987, Guidelines] is not, however, pure; it has a number of real elements." Id.
The Government's first argument in support of the "real offense" guideline range is based on the proviso in section 1B1.2(a). This proviso requires application of the guideline applicable to the "stipulated offense" where a plea of guilty contains a stipulation "that specifically establishes a more serious offense than the...
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