U.S. v. Hernandez

• Decision Date: 18 September 1978
• Docket Number: No. 77-5536,77-5536
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pete HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 188

580 F.2d 188

UNITED STATES of America, Plaintiff-Appellee, v. Pete HERNANDEZ, Defendant-Appellant.

No. 77-5536.

United States Court of Appeals, Fifth Circuit.

Sept. 18, 1978.

Joseph G. Garza, Corpus Christi, Tex., for defendant-appellant.

J. A. Canales, U.S. Atty., Anna E. Stool, George A. Kelt, Jr., Asst. U.S. Attys., Houston, Tex., Robert A. Berg, Asst. U.S. Atty., Corpus Christi, Tex., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before HILL and RUBIN, Circuit Judges, and HIGGINBOTHAM, ^* District Judge.

ALVIN B. RUBIN, Circuit Judge:

Pete Hernandez was convicted of possession of heroin with intent to distribute it and of its distribution, both in a single transaction and in violation of a single statute, 21 U.S.C. § 841(a)(1). He was sentenced to separate consecutive sentences of incarceration for ten years and special parole for two years on each count. He appeals on several grounds, principally asserting that he committed but one wrong and that he should, therefore, be sentenced only once. Bound by prior decisions of this court, we affirm his conviction and sentences.

I.

Two undercover agents, Maas and Pitts, working for the Drug Enforcement Administration, met with the defendant and his confederate, Pepe Acosta Hernandez, in an effort to buy heroin. The meeting occurred late one night in Corpus Christi, Texas, in a place called the New Orleans Room Lounge. The Hernandezes discussed the possible sale of a kilo of heroin to Maas, and agreed to provide a sample, one ounce for $1000. The two went away together in a black Cadillac, while the agents waited in the lounge.

When the two prospective sellers returned, Pepe Hernandez handed Maas a small tinfoil parcel containing a brown powder that appeared to the agent to be heroin as a sample of the product. Maas complained that the price was too high. Pepe said, "Well, let me see if I can do something." He asked the appellant, Pete, to step away from the table. The two moved away, spoke together, then returned to the table where the agents were seated. Pepe said, "It's going to have to be $1000 this time." Maas agreed to the price. About 11:30 p. m., Pepe left again, but Pete remained with the agents. The defendant said he had sold a pound of heroin that day, then engaged in shop talk about the varying prices of heroin, about the market in Chicago (whence Maas pretended to have come), and other matters.

Some time after midnight, Pepe returned, bent over the table, talked to Pete a moment, and then said to the agent, "I've got your ounce package. Do you want it here?" Maas and Pepe agreed to delivery in the men's room. Pepe and the agent went to the men's room; Pepe took a package out of his sock; the agent inspected it, and paid the $1000. Thereafter, they returned to the table and discussed future transactions. Pete said he could supply what the agents needed, gave them a phone number, and wrote his name and phone number on a bar napkin. Thereafter, the two pairs parted.

II.

Recital of the evidence in detail, if viewed in the light most favorable to the prosecution, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, disposes of the argument that the evidence was insufficient to convict Pete of possession.

. . . (P)roof of actual possession is not necessary to sustain a conviction for violation of the statutes involved; constructive possession is sufficient. Such possession need not be exclusive, but may be shared with others. Moreover, it may be proven by circumstantial as well as by direct evidence . . . By the same token, mere presence in the area where the narcotic is discovered or mere association with the person who does control the drug or the property where it is located, is insufficient to support a finding of possession.

(Citations omitted.) United States v. Stephenson, 5 Cir. 1973, 474 F.2d 1353, 1355.

III.

There is more substance to the argument that consecutive sentences were improper because the possession and distribution of heroin were both shown by the same acts. As discussed below, three circuits have proscribed separate sentences under these circumstances; ¹ we are bound, however, by the law of this circuit to a contrary result.

Decisions of this circuit have permitted consecutive sentences to stand under circumstances legally indistinguishable from those presented in this case. In United States v. Costello, 5 Cir. 1973, 483 F.2d 1366, Costello received LSD from a third party for delivery to undercover agents and, five minutes later, completed the sale of LSD to the agents. We there said:

This circuit has long adhered to the so-called "different evidence" test. United States v. Young, 482 F.2d 993 (5th Cir. 1973). Possession proscribed by § 844(a), which was complete when Costello received the drugs from the third party, and distribution in violation of § 841(a)(1), which occurred with transfer to the agents, are separate offenses under this standard, and conviction of both offenses in the instant case was proper.

483 F.2d at 1368. In United States v. Horsley, 5 Cir. 1975, 519 F.2d 1264, Cert. denied, 1976, 424 U.S. 944, 96 S.Ct. 1413, 47 L.Ed.2d 350, we cited Costello with approval in holding there was no merger of the possession and distribution counts in a narcotics prosecution under 21 U.S.C. § 841(a)(1).

Other circuits have accepted the argument that the "different evidence" test, referred to in Costello determines the propriety only of separate convictions, and not of separate sentences. ² Such a result, though superficially anomalous, might properly give effect to Congress's intentions in designing a particular statutory scheme. See Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370. It would be sophistic, however, to attempt thus to limit Costello and Horsley. In Costello, the consecutive sentences problem was directly raised, 483 F.2d at 1367, though not expressly discussed. Although Horsley also does not mention the sentencing issue expressly, we must bear in mind that panels of this circuit would ordinarily not discuss the separate convictions problem at all absent an enhancement of the penalty for one conviction, because of the operation of the concurrent sentences doctrine. United States v. Ashley, 5 Cir. 1978, 569 F.2d 975, 984; Mishan v. United States, 5 Cir. 1965, 345 F.2d 790, 791.

Were this panel to consider the consecutive sentences problem afresh, we would incline toward the views of the Fourth, Sixth, and Tenth Circuits, all of which would proscribe consecutive sentences in a case such as this. United States v. Curry, 4 Cir. 1975, 512 F.2d 1299, 1306, Cert. denied, 1975, 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed.2d 50; United States v. Atkinson, 4 Cir. 1975, 512 F.2d 1235; United States v. Stevens, 6 Cir. 1975, 521 F.2d 334; United States v. Olivas, 10 Cir. 1977, 558 F.2d 1366, Cert. denied, 1977, 434 U.S. 866, 98 S.Ct. 203, 54 L.Ed.2d 142. In reaching their common conclusion, these circuits all relied on the Supreme Court's decision in Prince v. United States, supra. The Supreme Court there held that the crime of entering a bank with intent to commit a felony does not merge with the crime of subsequently consummated robbery; however, based on the legislative history of the governing statute, 18 U.S.C. § 2113, the Court found that, "when Congress made either robbery or an entry for that purpose a crime it intended that the maximum punishment for robbery should remain at 20 years." 352 U.S. at 329, 77 S.Ct. at 407, 1 L.Ed.2d at 374. Consecutive...