U.S. v. Longoria

• Decision Date: 12 July 2002
• Docket Number: No. 00-50405.,No. 00-50406.,00-50405.,00-50406.
• Citation: 298 F.3d 367
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel LONGORIA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Juan Adrian Gonzalez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

298 F.3d 367

UNITED STATES of America, Plaintiff-Appellee, v. Miguel LONGORIA, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Juan Adrian Gonzalez, Defendant-Appellant.

No. 00-50405.

No. 00-50406.

United States Court of Appeals, Fifth Circuit.

July 12, 2002.

Ellen A. Lockwood, San Antonio, TX, for U.S. in 00-50405.

Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, Michael R. Dreeben (argued), Nina Swift Goodman, U.S. Dept. of Justice, Washington, DC, for U.S. in both cases.

Henry Joseph Bemporad (argued), San Antonio, TX, for Longoria.

Peter Goldberger, Law Office of Peter Goldberger, Admore, PA, for Nat. Ass'n of Criminal Defense Lawyers and Families Against Mandatory Minimums Foundation, Amicus Curiae.

Angela S. Raba, Angela J. Moore, San Antonio, TX, for U.S. in 00-50406.

John Aloysius Convery (argued), Harsdorff & Convery, San Antonio, TX, for Gonzalez.

Appeals from the United States District Court for the Western District of Texas.

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held: "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." Id. at 490, 120 S.Ct. 2348. In the wake of Apprendi, this court and all our sister circuits have unanimously agreed that drug quantities triggering increased penalties under 21 U.S.C. § 841 are facts that must be submitted to a jury and charged in an indictment under the Apprendi rule. See United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir.2000). One issue on which post-Apprendi decisions have espoused differing views, however, is the proper appellate treatment of sentences based on a district court's finding of a drug quantity that was not alleged in the indictment. In particular, courts have disagreed as to (1) whether the error is "jurisdictional," and (2) whether, where such a sentence is challenged for the first time on appeal and the appellate court is therefore applying a plain-error standard, it is appropriate to consider the nature of the evidence supporting the uncharged drug quantity in determining whether to correct the sentence, or, as this court has held, to consider only the difference between the defendant's sentence and the statutory maximum applicable to § 841 offenses involving an unspecified drug quantity. It was primarily in light of these two questions that we decided to rehear en banc two companion cases involving Apprendi sentencing challenges based on the absence of drug quantity from the indictment. In United States v. Longoria, 259 F.3d 363, vacated and reh'g en banc granted, 262 F.3d 455 (5th Cir.2001), and United States v. Gonzalez, 259 F.3d 355, vacated and reh'g en banc granted, 262 F.3d 455 (5th Cir.2001), the panels determined that the imposition of sentences exceeding the statutory maximum for offenses involving unspecified drug quantities was a "jurisdictional" error. Longoria, 259 F.3d at 365; Gonzalez, 259 F.3d at 359-61, 360 n. 3. Both panels further held, without considering the evidence of drug quantity, that it was proper to remand for resentencing within the applicable statutory maximum notwithstanding the defendants' failures to object in the district court. See Longoria, 259 F.3d at 365; Gonzalez, 259 F.3d at 359-61. We consolidated the two cases for purposes of our rehearing en banc.

Shortly before oral argument was scheduled to take place, the Supreme Court granted the government's petition for certiorari to the Fourth Circuit in United States v. Cotton, 261 F.3d 397 (4th Cir. 2001), cert. granted, ___ U.S. ___, 122 S.Ct. 803, 151 L.Ed.2d 689 (2002), a case that presented the principal questions motivating our decision to rehear Gonzalez and Longoria en banc; namely, in cases involving an indictment that does not allege a drug quantity, (1) whether the imposition of a sentence that exceeds the statutory maximum prescribed for offenses involving an indeterminate drug quantity is a "jurisdictional" error, and (2) whether it is proper to consider evidence of drug quantity in determining whether correction of such a sentence is appropriate under plain-error analysis. We proceeded with oral argument, but, concluding that the Supreme Court's forthcoming opinion would undoubtedly provide much-needed clarification of the issues raised by Gonzalez and Longoria, we deferred our en banc decision pending issuance of that opinion. On May 20, 2002, the Court issued United States v. Cotton, ___ U.S. ___, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), reversing the Fourth Circuit panel's decision to vacate the defendants' sentences. Id. at 1787. As explained below, in light of Cotton, we must affirm the sentences of Juan Adrian Gonzalez and Miguel Longoria.

I. BACKGROUND

Gonzalez and Longoria were charged in a single indictment as co-conspirators who agreed to "possess with intent to distribute a quantity of MARIJUANA." The indictment did not allege a particular quantity of marijuana. Both Gonzalez and Longoria pled guilty to the charge pursuant to plea agreements. Each agreement stated that the defendant (1) had knowingly and intentionally conspired to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846, and (2) was subject to imprisonment for a minimum of five years and a maximum of forty years and to a mandatory term of supervised release of at least four years. Under the agreements, Longoria and Gonzalez waived "the right to appeal any sentence imposed within the maximum provided in the statute of conviction, whether on direct appeal to the Fifth Circuit or in a collateral proceeding." The factual basis submitted in support of the plea agreements stated that Gonzalez, Longoria, and others "agreed to deliver approximately 500 pounds of marijuana to DEA agents," and that "[t]he delivery was actually made on March 13, 1999 and the weight of marijuana seized was approximately 593 pounds."

The district court adopted the presentence reports' findings attributing 777.01 grams of marijuana to Gonzalez and Longoria, and sentenced Gonzalez to seventy-eight months' imprisonment, Longoria to sixty-nine months' imprisonment, and both defendants to five years of supervised release.¹ Both defendants appealed.

Longoria appealed his sentence to this court under 18 U.S.C. § 3742, arguing that his sentence was illegal because it exceeded the applicable statutory maximum.² He maintained that this appeal was not precluded by the plea agreement because he had waived his right to appeal his sentence only if it was within the statutory maximum. Specifically, Longoria contended that because he was indicted for a § 841 offense involving an unspecified quantity of marijuana, the applicable statutory maximum penalty was that prescribed in § 841(b)(1)(D).³ Pointing to § 841(b)(1)(D)'s maximum penalty of five years' imprisonment and three years of supervised release, Longoria argued that resentencing was required because the district court was without statutory authority to impose his sentence of sixty-nine months' imprisonment and five years of supervised release. Acknowledging that he failed to raise this sentencing challenge in the district court, Longoria maintained that plain-error review was not applicable because his sentence exceeded the district court's statutory authority, and, in the alternative, that he was entitled to resentencing under plain-error review because such a sentence affects the fairness, integrity, and public reputation of judicial proceedings.

The Longoria panel did not address Longoria's claim that he did not waive the right to appeal a sentence that exceeded the statutory maximum. Rather, noting that a defendant does not waive jurisdictional defects by pleading guilty, the panel vacated Longoria's sentence and remanded for resentencing because the district court did not have "jurisdiction to sentence Longoria under any provision other than § 841(b)(1)(D)." Longoria, 259 F.3d at 365.

Gonzalez appealed his conviction as well as his sentence, but, unlike Longoria, Gonzalez did not invoke Apprendi in challenging his sentence.⁴ Rather, the government called Longoria's Apprendi argument to the panel's attention and pointed out that Gonzalez's sentence may be erroneous because the indictment did not allege a quantity of marijuana. See Gonzalez, 259 F.3d at 359.

Applying plain-error review, the Gonzalez panel determined that the four prongs of the plain-error standard were present in the case, i.e., there was "(1) an error; (2) that is clear or plain; (3) that affects the defendant's substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. at 359 (quoting United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.2000)). The panel determined that Gonzalez's sentence was "plainly erroneous" because it "obviously exceeds" the applicable § 841(b)(1)(D) maximum. Id. The panel also concluded "that the additional 18 months' imprisonment and 2 years' supervised release affects Gonzalez's substantial rights." Id. Finally, the panel determined that it was appropriate to exercise its discretion to correct the error, noting that "[w]e have elsewhere corrected sentences that exceeded the statutory maximum by an even smaller margin than the margin of difference presented in this case." Id. at 360-61 (citing United States v. Vasquez-Zamora, 253 F.3d 211, 214 (5th Cir.2001)). The panel stated that further justification for correcting the error was provided by the fact that correction would require only resentencing, and not a new trial. Id. at 361.

In a footnote, the panel asserted that the "unstated" premise...