U.S. v. Guevara, DEFENDANT-APPELLANT

• Decision Date: 17 November 2000
• Docket Number: DEFENDANT-APPELLANT,Docket No. 00-1133
• Citation: 277 F.3d 111
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE v. JORGE GUEVARA, AKA "SANTA," Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 111

277 F.3d 111 (2nd Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE v. JORGE GUEVARA, AKA "SANTA," DEFENDANT-APPELLANT

Docket No. 00-1133

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: November 17, 2000

Decided December 18, 2001

Defendant-Appellant appeals from the judgment of conviction and sentence entered in the United States District Court for the Southern District of New York (Martin, J.), challenging (1) his sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) the sufficiency of the evidence to support the district court's finding of drug quantity; (3) the district court's evidentiary rulings; and (4) the effectiveness of his trial counsel.

Affirmed in part, and in part vacated and remanded for resentencing.

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Timothy J. Coleman, Assistant United States Attorney, New York, NY (Mary Jo

White, United States Attorney for the Southern District of New York, Christine H. Chung, Assistant United States Attorney, on the brief), for Appellee.

Richard D. Willstatter, Green & Willstatter, White Plains, New York, for Defendant-Appellant.

Before: Jacobs, Calabresi, Circuit Judges, Rakoff, District Judge.^*

Jacobs, Circuit Judge

Jorge Guevara appeals from the judgment of conviction and sentence entered in the United States District Court for the Southern District of New York (Martin, J.) after a jury trial. Guevara challenges his conviction on the following grounds: (1) under Apprendi v. New Jersey, 530 U.S. 466 (2000), his due process and Sixth Amendment rights were violated when he was sentenced to a mandatory minimum 240 month term of imprisonment under 21 U.S.C. § 841(b)(1)(A) on the basis of a judge's preponderance finding that more than one kilogram of heroin was involved in the conspiracy rather than by a jury determination of drug quantity beyond a reasonable doubt; (2) Apprendi aside, there was insufficient evidence to support the district judge's determination that the conspiracy involved more than one kilogram of heroin; (3) the district court abused its discretion and denied Guevara the right to present a defense by refusing to receive in evidence certain tape recordings and transcripts that are allegedly exculpatory; and (4) Guevara was denied his Sixth Amendment right to effective assistance of counsel when his lawyer stipulated to the accuracy of certain English language transcripts before Guevara had listened to the Spanish language audiotapes.

For the reasons set forth herein, we conclude that Guevara's sentence of 240 months violated Apprendi. Applying plain error review pursuant to Fed. R. Crim. P. 52(b), we conclude that the district court committed error that was plain, that affected Guevara's substantial rights, and that seriously affected the fairness and the public reputation of judicial proceedings.

As to the other grounds of appeal, we conclude that (1) the evidence was sufficient to support a finding that more than one kilogram of heroin was involved in the offense; (2) the district court exercised proper discretion in excluding certain evidence; and (3) Guevara's counsel was not constitutionally ineffective.

Accordingly, we vacate the sentence and remand for resentencing consistent with this opinion.

I.

Jorge Guevara was convicted by the jury of conspiring to distribute heroin in violation of 21 U.S.C. §§ 846 and 841. The indictment handed down against Guevara charged him with conspiring with others to "distribute and possess with intent to distribute a controlled substance, to wit, one kilogram and more of mixtures and substances containing a detectable amount of heroin," in violation of Title 21, United States Code, Section 846. Indictment 99CR445. At trial, however, the court instructed the jury, consistent with the law of this Circuit at the time of trial, that "[t]he amount of narcotics alleged to have been distributed or possessed with intent to distribute is not an essential element of the criminal objective. You need only find that the co-conspirators agreed to distribute, or possess with intent to distribute, any quantity of narcotics." Charge to Jury, Trial Transcript at 291 (emphasis added); see United States v. Thomas, 204 F.3d 381, 383-84 (2d Cir.), vacated and remanded for reconsideration, 531 U.S. 1062 (2000). Guevara did not object to the jury instruction at trial and the jury returned a guilty verdict.

The Pre-Sentence Investigation Report ("PSR") prepared by the United States Probation Office in advance of the sentencing hearing recommended--pursuant to the United States Sentencing Guidelines ("Guidelines")--a Criminal History Category of IV (taking into account Guevara's prior felony drug conviction) and a base offense level of 32 (premised on the recommended finding that his "criminal activity involved the distribution of 2,253 grams of heroin"). PSR ¶ 23 (citing U.S. Sentencing Guidelines ("U.S.S.G.") § 2D1.1(c)(4)). Guevara objected to the PSR on a number grounds that did not include those later raised under Apprendi. In adopting the PSR's recommendations, the district judge concluded that there was sufficient evidence at trial to establish that Guevara knew the conspiracy involved at least one kilogram of heroin.

Guevara's Criminal History Category and base offense level resulted in a Sentencing Guideline range ("Guideline range") of 168 to 210 months. The court adopted no departure from that range in either direction. However, the district court

- ruled that because of its finding that the conspiracy involved more than one kilogram of heroin (and that Guevara was a prior drug felon), Guevara was subject to the mandatory minimum sentence of 240 months under 21 U.S.C. § 841(b)(1)(A)(i);¹

- ruled that the 240 month mandatory minimum trumped the top of the applicable Guideline range (210 months), see U.S.S.G. § 5G1.1(b) ("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence."); and accordingly

- sentenced Guevara to 240 months in prison.

Guevara filed a timely notice of appeal, challenging both his conviction and sentence. The principal question presented in this appeal is whether, under the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), Guevara's due process and Sixth Amendment rights were violated when--based on the judge's finding by a preponderance of the evidence, rather than a jury determination, that more than one kilogram of heroin was involved in the conspiracy--Guevara was sentenced to a mandatory minimum term of imprisonment under 21 U.S.C. § 841(b)(1)(A) that exceeds the highest term of imprisonment to which he would have been sentenced under the Sentencing Guidelines alone, notwithstanding that the sentence did not exceed the 360 month statutory maximum under 21 U.S.C. § 841(b)(1)(C).

II.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the defendant was convicted under a New Jersey statute making it a second-degree offense to possess a firearm for an unlawful purpose, see N.J. Stat. Ann § 2C:39-4a (West 1995), punishable by a maximum sentence of ten years. The state moved to enhance Apprendi's sentence under New Jersey's "hate crime" statute, which authorized a sentence of ten to twenty years if the trial judge found, by a preponderance of the evidence, that Apprendi "acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." Apprendi, 530 U.S at 469 (quoting N.J.S.A. § 2C:44-3(e)). Having duly found that Apprendi had acted with a biased motive, the trial judge sentenced Apprendi to a term of twelve years.

Apprendi argued that his sentence exceeded by two years the punishment authorized for the crime of which he had been convicted. The Supreme Court held that the sentencing enhancement based on the judge's finding of bias was unconstitutional because:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in [Jones v. United States, 526 U.S. 227 (1999)]: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."

Apprendi, 530 U.S. at 490 (quoting Jones, 526 U.S. at 252-53 (1999)).

In United States v. Thomas, No. 98-1051 (2d Cir. Dec. 12, 2001) (en banc), we joined a majority of circuits to conclude that Apprendi applies to the federal narcotics statute, 21 U.S.C. § 841 (2000), which specifies escalating penalties based on drug quantity. Thus, in reverse alphabetical order of subsections:

- Section 841(b)(1)(C), applicable to drug trafficking offenses under § 841(a) involving an indeterminate quantity of drugs, mandates no minimum sentence and authorizes a sentence ranging up to 240 months, or up to 360 months for prior drug felons;

- Section 841(b)(1)(B), applicable to drug trafficking offenses under § 841(a) involving (inter alia) at least 100 grams of heroin, mandates a minimum term of 60 months (or 120 months for prior drug felons) and authorizes a sentence ranging up to 480 months (or life for prior drug felons); and

- Section 841(b)(1)(A), applicable to drug trafficking offenses under § 841(a) involving (inter alia) at least one kilogram of heroin, mandates a minimum term of 120 months (or 240 months for prior drug felons), and authorizes a sentence of up to life.

Therefore, under Apprendi, "if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an...