U.S. v. Holguin

• Decision Date: 15 February 1989
• Docket Number: No. 86-2710,86-2710
• Citation: 868 F.2d 201
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gustavo HOLGUIN, Defendant-Appellant. . Rehearing Granted and
• Court: U.S. Court of Appeals — Seventh Circuit

Page 201

868 F.2d 201

UNITED STATES of America, Plaintiff-Appellee, v. Gustavo HOLGUIN, Defendant-Appellant.

No. 86-2710.

United States Court of Appeals, Seventh Circuit.

Rehearing Granted and

Decided Feb. 15, 1989.

Ken DelValle, Chicago, Ill., Susan Philbrick, Oak Lawn, Ill., Joshua Sach, Nicholas A. DeJohn, Nicholas A. DeJohn Assoc., Ltd., Chicago, Ill., for defendant-appellant.

Helene B. Greenwald, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, COFFEY, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

This matter is before the court on the government's petition for rehearing. ¹ For the reasons set forth in this opinion we grant the petition for rehearing and affirm Mr. Holguin's conviction under the continuing criminal enterprise statute. We also find no merit to his contentions concerning the sentencing proceeding, an issue we found unnecessary to reach in our original opinion. In all other respects, our original opinion, reported at 860 F.2d 801, is reinstated.

I.

In our original opinion, we determined that there was insufficient evidence to permit a jury to find that Mr. Holguin had supervised two of the seven persons who the government had contended were under his supervision. On the authority of Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957), and United States v. Holzer, 840 F.2d 1343, 1352 (7th Cir.1988), we further held that Mr. Holguin's conviction could not stand. We also ordered that he be resentenced.

In its petition for rehearing, the government submits that Yates and Holzer do not apply to sufficiency of evidence claims such as those presented here. In its view, Yates and Holzer "are part of a long line of well-established authority holding that when a count in an indictment specifies more than one ground upon which a conviction on that count may be based, and one of those specific grounds is unconstitutional or otherwise legally deficient, then a general verdict of guilty on that count must be reversed if the reviewing court is unable to tell whether the jury relied on the impermissible ground in reaching its verdict." Petition for Rehearing at 2. By contrast, submits the government, this case is not a situation where the jury's general verdict may have been based on a ground that is unconstitutional or otherwise legally deficient. Rather, it is a case where the jury's verdict may have been based on insufficient evidence as to a matter that the government was not required to prove--the identity of the five or more persons organized by the defendant. ² In short, the government submits that, even if there was insufficient evidence that two people allegedly controlled by the defendant actually were controlled by him, there still was sufficient evidence that five persons were controlled by the defendant. We are obliged to view the evidence in the light most favorable to the government. When the evidence is reviewed in that light, it is clear that there was sufficient evidence to establish that five people were controlled by the defendant.

We believe that there is merit to this submission. The government can, as it claims, find general support for its position in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). ³ Relying on Turner, the Ninth Circuit has held in several cases that Yates does not apply to insufficiency of evidence claims. See, e.g., United States v. Halbert, 640 F.2d 1000, 1008 (9th Cir.1981); United States v. Phillips, 606 F.2d 884, 886 n. 1 (9th Cir.1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980); United States v. Jessee, 605 F.2d 430, 431 (9th Cir.1979); United States v. Outpost Dev. Co., 552 F.2d 868, 869-70 (9th Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 503, 54 L.Ed.2d 450 (1977). While the cases in this circuit are not as clear, this court has expressed general agreement with the position of the Ninth Circuit. See United States v. Soteras, 770 F.2d 641, 646 (7th Cir.1985); see also United States v. Reicin, 497 F.2d 563, 569 (7th Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974). There is also passing comment on the matter in United States v. Keplinger, 776 F.2d 678, 687 (7th Cir.1985), cert. denied, 476 U.S. 1183, 106 S.Ct. 2919, 91 L.Ed.2d 548 (1986). ⁴

We believe that these cases must control the outcome here. ⁵ On this appeal, we must view the evidence in the light most favorable to the government. There was sufficient evidence for the jury to conclude that the defendant carried on his illegal activities in concert with five or more persons. That determination ends our inquiry.

II.

Having affirmed Mr. Holguin's conviction, we now must address his challenges to the sentencing proceeding. In our earlier opinion, we found it unnecessary to reach this issue. Mr. Holguin contends that the district court committed two errors in sentencing him. First, he submits, the court denied defense counsel adequate time to review the government's presentence report and rebut the government's version of the facts. Second, he asserts that the court relied on two impermissible criteria in sentencing him: (1) consideration of his national origin, and (2) the fact, allegedly unsupported by the record, that he was on bail from a state court criminal proceeding at the time he committed the offenses for which he was being sentenced.

A. Adequate Time to Review the Presentence Report

Mr. Holguin's first contention is that defense counsel "was first permitted to view a pre-sentence report which included the prosecutor's version of the facts on the morning of October 10, 1986 several minutes prior to sentencing." Holguin's Br. at 103. He contends that the government's version of the facts contained "materially false" factual statements that "screamed for rebuttal." ⁶ However, his motion for a continuance was denied. As a result, he contends, the district court deprived him of due process of law. The government contends that defense counsel viewed the government's version of the facts on the night before sentencing. The government also submits that the court, in denying the motion for continuance, noted that Mr. Holguin's counsel had an opportunity to view the government's version even sooner than that.

The record supports the contentions of the government. Mr. Holguin's counsel admitted on the morning of the sentencing hearing that he "first got to see the Government's version of the facts in this case last night." Tr. of Oct. 10, 1986 at 10. In addition, although the government was "rather late" in formulating its version of the facts, the district court, in denying Mr. Holguin's motion for a continuance, explained that defense counsel "could have seen it sooner than last night." Id. Indeed, the court noted that the government's version was dated October 2, 1986--eight days prior to the sentencing hearing. We also note that, during the proceedings, the court specifically asked the defendant if he had seen the report and had an opportunity to discuss it with counsel. Tr. of Oct. 10, 1986 at 63. The defendant answered in the affirmative.

At the time it ruled on this matter, the district court had presided over this trial for many days and was thoroughly familiar with the record. Therefore, it was in a unique position to assess the merits of counsel's request for additional time. We find nothing in the record that would justify our disagreement with its ruling.

B. Improper Considerations in Sentencing

Mr. Holguin next argues that the district court relied on impermissible criteria in sentencing him. Mr. Holguin specifically addresses two such impermissible criteria: (1) reliance on his national origin--Colombian, and (2) reliance on the government's allegation that he was on bail from a state court prosecution when the offenses for which he was being sentenced were committed.

1.

We must reject Mr. Holguin's contention that the district court improperly considered his nationality as a factor in sentencing. Our review of the sentencing hearing transcript clearly indicates that no objection was made at the sentencing hearing when the government referred to Mr. Holguin as "a Colombian." Tr. of Oct. 10, 1986 at 49. Such a failure to raise an issue before the district court results in a waiver of that issue on appeal. United States v. Peak, 856 F.2d 825, 830 (7th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 499, 102 L.Ed.2d 535 (1988); United States v. Carter, 720 F.2d 941, 945 (7th Cir.1983); see also United States v. Turner, 864 F.2d 1394, 1399 (7th Cir.1989) (per curiam). ⁷

2.

Mr. Holguin's final contention is that nothing in the record substantiates the district court's reliance on the government's allegation that he was on bail for a drug offense in state court while the offenses at issue in this case were being committed. The government contends that the information is contained in the presentence report and that Mr. Holguin did not object to it at the sentencing hearing. Our review of the transcript reveals that Mr. Holguin did not object to the government's allegation when it was made, see Tr. of Oct. 10, 1986 at 48, and thus, this issue is also waived on appeal.

Conclusion

The government's petition for rehearing is granted, and Mr. Holguin's conviction under the continuing criminal enterprise statute is affirmed. We reject Mr. Holguin's challenges to the sentencing proceedings and affirm his sentence. Our original opinion is reinstated in all other respects.

1 By notice dated December 8, 1988, this court ordered counsel for the appellant to file a response to the government's petition for rehearing by December 22, 1988. Nothing was filed by that date. Two weeks after the deadline, counsel filed a motion for extension of time to file an answer. Counsel's motion consisted of three sentences which merely stated that he needed an extension of time, that he did not see the December 8, 1988 notice until ...