U.S. v. Laetividal-Gonzalez

• Decision Date: 27 August 1991
• Docket Number: 89-3574 and 90-3235,D,Nos. 89-3499,89-3546,89-3565,LAETIVIDAL-GONZALEZ,ROSARES-MARTINE,s. 89-3499
• Citation: U.S. v. Laetividal-Gonzalez, 939 F.2d 1455 (11th Cir. 1991)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Enrique, a/k/a "Ki Ki"; and Gonzalo Ocampo, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Shirley BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Luis Felipe GONZALEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Luis Miguelefendant-Appellant. Gonzalo OCAMPO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1455

939 F.2d 1455

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Enrique LAETIVIDAL-GONZALEZ, a/k/a "Ki Ki"; and Gonzalo Ocampo, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Shirley BROWN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Luis Felipe GONZALEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Luis Miguel ROSARES-MARTINEZ, Defendant-Appellant.

Gonzalo OCAMPO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 89-3499, 89-3546, 89-3565, 89-3574 and 90-3235.

United States Court of Appeals Eleventh Circuit.

Aug. 27, 1991.

Joseph M. Diaz, Diaz & Athan, P.A., Tampa, Fla., for defendants-appellants.

Eric M. Cohen, Eric M. Cohen, P.A., Coral Gables, Fla., for Ocampo.

Florence W. Foster, Robert A. Foster, Jr., Tampa, Fla., for Shirley Brown.

Carlos A. Pazos, Tampa, Fla., for Luis Felipe Gonzalez.

Jeffrey Downing, Tamra Phipps, Gregory W. Kehoe, Asst. U.S. Attys., Tampa, Fla., for U.S.

Appeals from the United States District Court for the Middle District of Florida.

Before JOHNSON and COX, Circuit Judges, and ENGEL ^*, Senior Circuit Judge.

ENGEL, Senior Circuit Judge:

The five appellants in this case were convicted or pled guilty to criminal conspiracy charges arising from their participation in a cocaine importation scheme from April through August, 1987. They raise several challenges to their convictions and sentences in this direct appeal, while defendant Ocampo's appeal of his conviction has been combined with his appeal of the denial of his Motion to Vacate Sentence under 28 U.S.C. Sec. 2255. We find that the sentences of all five appellants were improperly calculated, and remand their cases for resentencing as discussed below. All other grounds of appeal raised by the appellants are denied.

The U.S. Customs Service, using undercover agents, infiltrated a drug ring based in central and southern Florida in 1987. The conspirators planned to bring large shipments of cocaine to the United States from Colombia. Luis Gonzalez arranged sea and air transportation for the drugs, and unwittingly negotiated with undercover agents, telling them he would bring 2,800 kilograms of cocaine from Colombia to Florida. Luis Rosales-Martinez invested approximately $40,000 in the smuggling venture, and bribed Colombian Narcotics Police to ensure the security of the departing drug shipment. ¹ Shirley Brown invested $5,000 in the cocaine scheme. Daniel Laetividal-Gonzalez inspected the airstrip where the plane bearing the drugs was to land in Florida, and agreed to drive a van carrying the drugs from the Inverness, Florida airstrip to Miami. Gonzalo Ocampo represented the seller of 1,200 kilograms of cocaine, and discussed with Gonzalez and others the arrangements for the drug shipment. The government's undercover investigation lasted several months, and the conspirators were arrested shortly before the drugs were to leave Colombia.

A grand jury indicted the defendants in April 1988 on conspiracy charges. Defendants Luis Gonzalez and Luis Rosales-Martinez each pled guilty to one count of conspiracy to import cocaine, a violation of 21 U.S.C. Secs. 952(a) and 963. Defendant Shirley Brown entered a conditional plea to the same charge, reserving her right to challenge the denial of her motion to suppress audio and video recordings made by the U.S. Customs Service during the investigation. The remaining defendants, Gonzalo Ocampo and Daniel Laetividal-Gonzalez, were tried before a jury and were found guilty of conspiracy to import cocaine (21 U.S.C. Secs. 952(a) and 963), and conspiracy to possess with intent to distribute cocaine (21 U.S.C. Secs. 841(a) and 846).

Judge Castagna sentenced Laetividal-Gonzalez on June 15, 1989 to twelve years imprisonment without parole. On the same date, Ocampo received a fifteen-year sentence without parole. On June 20, 1989, Shirley Brown received a five-year sentence without parole. On July 6, 1989, Rosales-Martinez was sentenced to fifteen years imprisonment without parole. Finally on July 7, 1989, Gonzalez received an eighteen-year sentence with no parole. All are now incarcerated. Each appellant is represented by separate counsel, and we address each appeal individually as indicated below.

DANIEL LAETIVIDAL-GONZALEZ

Defendant Laetividal-Gonzalez was convicted by a jury on two related conspiracy charges. A review of the transcript from his June 15, 1989 sentencing hearing indicates that the district judge believed that a mandatory minimum sentence applied to the charges, and that no possibility of parole existed. The government concedes that these were incorrect interpretations of the applicable law, and that the district judge erroneously sentenced Laetividal-Gonzalez as a result.

This court has ruled that under the law as it existed at the time relevant to the defendants in this case, minimum mandatory sentences were required for substantive drug trafficking offenses, but not for drug conspiracy counts such as those at issue here. See United States v. Giltner, 889 F.2d 1004, 1009 (11th Cir.1989); United States v. Rush, 874 F.2d 1513, 1514 (11th Cir.1989). While convictions for the importation of more than five kilograms and the possession with the intent to distribute more than five kilograms of cocaine carried mandatory minimum prison sentences in 1987, conspiracy convictions for those same activities did not. This disparity was eliminated in 1988, when 21 U.S.C. Secs. 846 and 963 were amended to clearly require the same mandatory minimum penalties without parole for both conspirators and substantive offenders. Giltner and Rush indicate, however, that these amendments do not apply to sentences imposed for criminal activity conducted prior to November 18, 1988, the effective date of the statutory amendments. Here, the defendants' illegal activity took place in 1987, and no mandatory minimum sentences applied to their conspiracy convictions.

In addition, the government now concedes that the district court erroneously sentenced the defendants to prison terms without possibility of parole. Under 18 U.S.C. Sec. 4205(b) (1982), when imposing a term of imprisonment exceeding one year, a district court may:

(1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may be released on parole at such time as the [U.S. Parole] Commission may determine.

Though 18 U.S.C. Sec. 4205 was repealed by Pub.L. 98-473, Title II, Sec. 218(a)(5), Oct. 12, 1984, 98 Stat. 2027, this change in the law did not take effect until November 1, 1987. The old section 4205 remains in effect for ten years, and applies to individuals who committed federal offenses prior to November 1, 1987. In this case, the conspiracy took place between April and August of 1987, so section 4205's parole provision applies to the five defendants.

While the decision whether or not to grant parole to an eligible defendant rests with the U.S. Parole Commission under 18 U.S.C. Sec. 4206 (a statute which, like section 4205, has been repealed but remains effective for persons sentenced for illegal activities committed before November 1, 1987), the district court cannot limit the parole eligibility of the defendants in this case once they have served one-third of their sentences.

Under the current version of 21 U.S.C. Sec. 960, persons convicted for the crimes at issue here are ineligible for parole during the terms of their imprisonment. However, this language was inserted in the statute through Pub.L. 99-570, Title I, Sec. 1302, Oct. 27, 1986, 100 Stat. 3207, 3207-17. Again, the effective date of this "no parole" provision was November 1, 1987, which post-dated the criminal activities for which the defendants were sentenced here. A defendant is to be sentenced according to the law in effect on the date of the offense. United States v. Burgess, 858 F.2d 1512, 1513 (11th Cir.1988). Because the district court sentenced Laetividal-Gonzalez and all of the other conspirators under the mistaken belief that non-paroleable sentences were required or permissible, the cases must all be remanded for resentencing on the issue of the possibility of parole.

The SENTENCE imposed on Laetividal-Gonzalez is VACATED, and the case REMANDED for resentencing in a manner not inconsistent with this opinion.

SHIRLEY BROWN

For the above-stated reasons, Shirley Brown is entitled to resentencing on the question of paroleability. See 18 U.S.C. Sec. 4205 (1982).

However on the question of a mandatory minimum sentence, a review of the record from Brown's June 20, 1989 sentencing hearing indicates that the district judge properly understood that no mandatory minimum sentence applied to her conspiracy conviction. No correction to Brown's sentence on this question is thus warranted.

Shirley Brown's role in the conspiracy was limited to her investment of $5,000 in the drug smuggling venture. Rick Dressler, an undercover confidential informant working for the U.S. Customs Service and the Florida Department of Law Enforcement, rented desk space in Brown's Tampa, Florida real estate office from April through August 1987. Shirley Brown consented to this arrangement, though she was unaware that Dressler was a confidential informant. According to the government, at the time Dressler rented the office space, Shirley Brown was under suspicion for possible money laundering as a result of prior conversations with an undercover Internal Revenue Service agent. The evidence indicates that at the time Dressler rented the office space, Shirley Brown was not involved in the drug importation conspiracy however.

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