U.S. v. Mansoori

• Decision Date: 13 March 2007
• Docket Number: No. 04-1974.,No. 04-2653.,No. 05-3440.,No. 04-1950.,04-1950.,04-1974.,04-2653.,05-3440.
• Citation: 480 F.3d 514
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mohammad MANSOORI, Mark Cox, Kenneth Choice, and Terry Young, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

480 F.3d 514

UNITED STATES of America, Plaintiff-Appellee, v. Mohammad MANSOORI, Mark Cox, Kenneth Choice, and Terry Young, Defendants-Appellants.

No. 04-1950.

No. 04-1974.

No. 04-2653.

No. 05-3440.

United States Court of Appeals, Seventh Circuit.

Submitted July 10, 2006.^*

Decided March 13, 2007.

Daniel D. Rubinstein (submitted), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Donna A. Hickstein-Foley, Foley & Foley, Chicago, IL, John A. Meyer, Chicago, IL, J. Clifford Greene, Jr., Chicago, IL, Michael B. Cohen, Chicago, IL, for Defendants-Appellants.

Before BAUER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

In 2002, we affirmed the convictions of defendants-appellants Mohammad Mansoori, Mark Cox, Kenneth Choice, and Terry Young (collectively, the "defendants") in this narcotics conspiracy case, but we vacated their sentences and remanded the case to the district court in order to correct certain sentencing errors we had identified. United States v. Mansoori, 304 F.3d 635 (7th Cir.2002) ("Mansoori I"). On remand, the district court corrected those errors but left in place the life sentences that all of the defendants had originally received on their conspiracy convictions.

The defendants' current appeals are aimed at their life sentences. Mansoori, Cox, and Choice contend that because we vacated their sentences in Mansoori I, they were (and are) entitled to de novo re-sentencing rather than re-sentencing confined to the particular errors we found in the prior appeal. De novo re-sentencing likely would benefit the defendants, because if the district court were to start the sentencing process over from scratch, it would have to comply with the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Mansoori I, we determined that the imposition of life sentences on the defendants' conspiracy convictions amounted to Apprendi error, because the jury had not made a finding as to the amount of narcotics involved in the conspiracy that would authorize a prison term of life. 304 F.3d at 657. However, believing that none of the defendants had made an Apprendi-like argument below, we reviewed the Apprendi challenge for plain error only. Id. We concluded that the Apprendi error did not warrant relief under that standard, reasoning that a properly instructed jury surely would have found the drug quantity necessary to support the life sentences. Id. at 658. Consequently, we did not find the defendants entitled to re-sentencing on their convictions for narcotics conspiracy. If, however, the defendants were now to be re-sentenced de novo, as if the original sentencing had never occurred, the district court would be bound by Apprendi, and in the absence of a jury finding as to the relevant drug quantity, the lengthiest prison term that the court could impose on the conspiracy charge would be twenty years. See Mansoori I, 304 F.3d at 659 (discussing the erroneous life sentences imposed as to Young and Choice on the distribution charge set forth in Count Two); 21 U.S.C. § 841(b)(1)(C).

Alternatively, Mansoori, Cox, and Choice contend that their sentences are inconsistent with the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the district court treated the Sentencing Guidelines as binding when it re-sentenced them. They ask us to grant them limited remands under United States v. Paladino, 401 F.3d 471 (7th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 106, 163 L.Ed.2d 118 (2005), and cert. denied, ___ U.S. ___, 126 S.Ct. 1343, 164 L.Ed.2d 57 (2006), so that the district court may consider whether it would have imposed the same sentences on them knowing that the Guidelines are no longer binding but merely advisory.

Like his co-defendants, Young attacks his life sentence on the basis of Apprendi, but his reasoning is different. Young contends that because he, in contrast to the other defendants, preserved an Apprendi argument at his original sentencing, we erred in subjecting his Apprendi challenge to limited, plain error review. Young urges us to correct the mistake, vacate his life sentence on the conspiracy charge, and remand for de novo re-sentencing subject to a maximum prison term of twenty years on that charge.

For the reasons that follow, we conclude that Mansoori, Cox, and Choice are not entitled to de novo re-sentencing. They are, however, entitled to Paladino remands. We further conclude that Young is not entitled to de novo re-sentencing either, notwithstanding his contention that he preserved his Apprendi challenge. Assuming that he timely raised an Apprendi argument in the district court, the error was harmless for the same essential reason we found it not to constitute plain error in Mansoori I. A Paladino remand is unnecessary in Young's case, as the district court stated on the record that it would not sentence Young any differently treating the Sentencing Guidelines as advisory in accord with Booker.

I.

A jury convicted all four defendants of conspiring to distribute narcotics, in violation of 21 U.S.C. § 846, and the district court ordered them to serve life terms for that offense. In addition, Young and Choice were convicted of possessing cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and were ordered to serve concurrent life terms on that charge; Young was convicted of one count of money laundering, in violation of 18 U.S.C. § 1956, and was ordered to serve a concurrent term of twenty years on that charge; and Mansoori was convicted of 11 counts of engaging in monetary transactions involving property derived from criminal activity, in violation of 18 U.S.C. § 1957, as to which the district court imposed consecutive terms of ten years, to be served concurrently with his life term on the conspiracy charge.

On appeal, we affirmed the defendants' convictions but concluded that re-sentencing was necessary in order to correct certain errors. Specifically, we concluded that Young and Choice were subject to a maximum prison term of 20 years rather than life on the distribution charge, 304 F.3d at 658-59; that Young and Mansoori were subject to special assessments of $50 rather than $100 on their convictions for monetary offenses, id. at 659; that as to Young, the district court had the authority to consider a downward departure based on his purportedly diminished mental capacity, id. at 672-676; and that the district court erred in ordering the defendants to pay community restitution, id. at 677.

As we have mentioned, among the arguments on which we did not grant relief in Mansoori I was the defendants' joint argument that their life sentences on the conspiracy charge were imposed in violation of their Sixth Amendment right to a jury trial as explained in Apprendi. Believing that none of the defendants had raised this issue in the district court, we reviewed the Apprendi argument for plain error only. Id. at 657. We agreed that the imposition of a life term constituted an obvious error in retrospect. The statute under which the defendants were charged with conspiracy provides for a prison sentence of up to life so long as the offense involved five or more kilograms of cocaine or one or more kilograms of heroin. 21 U.S.C. § 841(b)(1)(A)(i) and (ii). However, in the absence of a proven drug amount, the default maximum prison term is twenty years. § 841(b)(1)(C). In this case, the conspiracy charge set forth in Count One of the indictment did not allege, and the jury was not asked to find, that the amount of drugs involved in the conspiracy met or exceeded the statutory threshold for a life term. The jury's guilty verdict therefore did not support a sentence in excess of twenty years. Id. at 657. Nonetheless, we concluded that the error did not implicate the integrity and fairness of the judicial process so as to warrant relief under the plain error standard. Id. at 657-58. Having reviewed the trial record, we found that the evidence indicating the conspiracy involved the statutorily required amount of narcotics was so overwhelming as to leave no doubt that a properly instructed jury would have found that threshold satisfied. Id. at 658.¹

Young filed a petition for rehearing. With respect to the Apprendi issue, Young noted that in contrast to the other defendants, his counsel had, in fact made a Sixth Amendment argument at sentencing that anticipated the Apprendi decision. Consequently, Young maintained, his Apprendi challenge was not subject to limited, plain error review, and because the court had already found that an Apprendi error had occurred, he was entitled to relief in the form of de novo re-sentencing. In its answer to Young's petition, submitted at our request, the government did not contest Young's assertion that he had timely raised a Sixth Amendment argument in the district court and was therefore entitled to relief under Apprendi. Rather, the government contended that the point was moot because this court had vacated each of the defendant's sentences and remanded for re-sentencing in light of the other errors the court had identified. Consequently, the government reasoned, Young as well as the other defendants were to be re-sentenced on the conspiracy charge and any Apprendi error would be taken care of in re-sentencing.

We denied Young's petition for rehearing without comment. The Supreme Court subsequently denied the petition for a writ of certiorari filed by Mansoori, Cox, and Young. Cox v. United States, 538 U.S. 967, 123 S.Ct. 1761, 155 L.Ed.2d 522 (2003).

On remand, the government performed an about-face and contended that because this court had not vacated Young's sentence as a whole and had not directed that Young be re-sentenced on the conspiracy conviction, Young was not entitled to de novo re-resentencing. See R. 808, 810, 839. After entertaining the parties' memoranda as to the...