U.S. v. Martinez

• Decision Date: 08 March 1993
• Docket Number: No. 618,D,618
• Citation: 987 F.2d 920
• Parties: UNITED STATES of America, Appellee, v. Luis A. MARTINEZ, Defendant, Alexis Miranda Ortiz, also known as Alexis Pacheco, Defendant-Appellant. ocket 92-1461.
• Court: U.S. Court of Appeals — Second Circuit

Page 920

987 F.2d 920

UNITED STATES of America, Appellee, v. Luis A. MARTINEZ, Defendant Alexis Miranda Ortiz, also known as Alexis Pacheco Defendant-Appellant.

No. 618, Docket 92-1461.

United States Court of Appeals Second Circuit.

Argued Dec. 17, 1992.

Decided March 8, 1993.

Kenneth D. Wasserman, New York City, for defendant-appellant.

Orin S. Snyder, Paul G. Gardephe, Asst. U.S. Attys., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., S.D.N.Y., of counsel), for appellee.

Abraham L. Clott, New York City (The Legal Aid Society, New York City, of counsel), filed a brief amicus curiae on behalf of the defendant-appellant.

Before: PIERCE, CARDAMONE, and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Alexis Miranda-Ortiz ("Ortiz") appeals from a judgment of the United States District Court for the Southern District of New York (Mukasey, J.) imposing a minimum ten-year sentence pursuant to 21 U.S.C. § 841(b)(1)(A) (1988) following Ortiz's conviction for conspiracy to distribute over five kilograms of cocaine in violation of 21 U.S.C. § 846 (1988). In an earlier appeal, this Court affirmed Ortiz's conviction but vacated the original sentence and remanded for resentencing. See United States v. Miranda-Ortiz, 926 F.2d 172 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 347, 116 L.Ed.2d 287 (1991) ("Ortiz I "). On appeal, Ortiz argues that he should not be held accountable for the amount of cocaine distributed in the conspiracy prior to his participation in it, because he had no reasonable knowledge of the amount that had been sold.

For the reasons set forth below, the judgment is vacated and the case remanded for proceedings consistent with this opinion.

BACKGROUND

Ortiz met co-defendant Luis Martinez in a restaurant in late 1987. The two men used cocaine together, and Ortiz told Martinez that if Martinez should ever need drugs he should call Ortiz. The two men exchanged beeper numbers. A year later, they inadvertently met again at a movie theater, and Ortiz again mentioned that Martinez should call Ortiz if Martinez needed drugs. As with the first meeting, the two exchanged beeper numbers and this time also traded telephone numbers. During these meetings, they did not discuss drugs with any degree of specificity as to amounts.

Martinez had been supplying George Zlotkiewicz with cocaine since 1985, two years before Martinez met Ortiz. By November 29, 1988, Martinez had sold Zlotkiewicz cocaine four or five times, each sale involving approximately one kilogram. Martinez had obtained all of this cocaine from a single supplier, Sergio Gil. There is nothing in the record to indicate that Ortiz knew specifically about these transactions.

On November 28, 1988, Zlotkiewicz asked Martinez to sell him another kilogram of cocaine. Unbeknown to Martinez, Zlotkiewicz at this time was a government informant, the result of a plea bargain stemming from his October 1988 arrest for selling cocaine. Martinez agreed to supply Zlotkiewicz, and said that he would call Gil, his source. When Gil was unable to supply the kilogram of cocaine, Martinez called Ortiz.

Martinez and Ortiz met the next day. Martinez asked Ortiz if he could supply a kilogram of cocaine that day, explaining When the two attempted to deliver the cocaine, they were arrested. They were both indicted originally in December 1988 for one count of possession with intent to distribute over 500 grams of cocaine, and one count of conspiracy to distribute over 500 grams of cocaine. A superseding indictment was filed in July 1989, realleging the distribution count and charging that the conspiracy had begun in 1985 with the sales by Martinez to Zlotkiewicz. The superseding indictment also specified that the object of the conspiracy was distribution of more than five kilograms of cocaine. It added as overt acts the sales by Martinez to Zlotkiewicz from 1985 to 1988.

                that his regular source was unable to supply it.   Ortiz asked if the buyer was reliable, and Martinez responded that he had known Zlotkiewicz for four years and that Zlotkiewicz was trustworthy.   Ortiz agreed to obtain the cocaine
                

Martinez pleaded guilty to the distribution count and agreed to cooperate with the government. Ortiz proceeded to a jury trial in the United States District Court for the Southern District of New York (Mukasey, J.), and was convicted on all counts. The district court sentenced Ortiz to two concurrent terms of 151 months' imprisonment, finding that his offense level under the United States Sentencing Guidelines ("Guidelines") should be calculated on the basis of the conspiracy's distribution of five or more kilograms of cocaine. Ortiz appealed to this Court. Ortiz I, 926 F.2d 172. On appeal, he made various challenges to both the jury verdict and his sentence. We affirmed the conviction, finding that the jury had sufficient evidence to convict him of the conspiracy even though he was not involved in the sales by Martinez to Zlotkiewicz. Id. at 176. Primarily, we found that a reasonable jury could infer that Ortiz knew there was a conspiracy from the exchange of beeper numbers and the fact that Martinez regularly supplied Zlotkiewicz. Id.

We did, however, vacate the sentence and remand to the district court. Id. at 178-79. In doing so, we concluded that the fact that Ortiz joined the conspiracy did not make him culpable at sentencing for all the acts of the conspiracy. Id. We stated:

[W]hen a late-comer has been convicted of a broad-ranging narcotics conspiracy, his "relevant conduct" may not be the same as the relevant conduct of those who were members of the conspiracy at all stages. The late-entering coconspirator should be sentenced on the basis of the full quantity of narcotics distributed by other members of the conspiracy only if, when he joined the conspiracy, he could reasonably foresee the distributions of future amounts, or knew or reasonably should have known what the past quantities were.

Id. at 178. The district court had not made findings that Ortiz "knew or reasonably should have known that Martinez's prior sales to Zlotkiewicz had totaled four or more kilograms." Id. We remanded for resentencing and a determination of whether Ortiz reasonably should have known about the amounts Martinez had sold, noting that the present record would not have supported such a finding. Id.

On remand, the government brought to the district court's attention 21 U.S.C. § 841(b)(1)(A), which requires a minimum 10-year sentence for convictions of conspiracy "involving" more than 5 kilograms of cocaine. The district court imposed this 10-year minimum, since it is higher than what Ortiz would have received under the Guidelines. See U.S.S.G. § 5G1.1(b); United States v. Larotonda, 927 F.2d 697, 698 (2d Cir.1991) (per curiam ) (statutory minimums take precedence over Guideline sentences). Ortiz now appeals the resentencing, arguing that: (1) the district court should have followed the law of the case and imposed the sentence under the Guidelines; and (2) even under § 841(b), the government should have to prove that he knew or reasonably should have known the amounts of Martinez's prior sales.

DISCUSSION

I. The Law of the Case

As a preliminary matter, we address Ortiz's contention that the district court failed to follow the law of the case by Had the district court sentenced Ortiz under the Guidelines, then the law of the case would certainly have bound the district court to this Court's opinion in the first appeal. The statutory minimum under 21 U.S.C. § 841, however, had never been brought before this Court or the district court. This was because the original sentence of the district court was higher than the statutory minimum, rendering the minimum irrelevant to consideration. Therefore, the district court was correct in considering the applicability of § 846, since it only became an issue because of this Court's ruling in the first appeal.

                sentencing him under § 841(b) instead of making the findings under the Guidelines as ordered by this Court.   As a general rule, "where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again."  Zdanok v. Glidden Co., Durkee Famous Foods Div., 327 F.2d 944, 953 (2d Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964).   However, the doctrine "is, at best, a discretionary doctrine which 'does not constitute a limitation on the court's power but merely expresses the general practice of refusing to reopen what has been decided.' "  United States v. Birney, 686 F.2d 102, 107 (2d Cir.1982) (quoting Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134-36 (2d Cir.), cert. denied, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82 (1956))
                

II. The Reasonable Knowledge Requirement of § 841(b)

Ortiz next contends that he should not be sentenced to the statutory minimum under 21 U.S.C. § 841(b) for conspiracy to distribute over five kilograms of cocaine. He argues that he could not have reasonably known that Martinez had sold that amount of cocaine prior to their transaction. Because reasonable knowledge of relevant conduct is considered under the Guidelines, Ortiz contends that it should also be considered for the statutory minimum. The government responds that Ortiz's reasonable foreseeability as to the amounts of Martinez's transactions is not required under § 841(b) as it is under the Guidelines.

The government directs this Court's attention to the cases where we have found that the statutory minimums of § 841(b) apply regardless of the defendant's specific knowledge of the amounts in possession. See United States v. Pineda, 847 F.2d 64, 65 (2d Cir.1988) (per curiam ); United States v. Collado-Gomez, 834 F.2d 280, 281 (2d Cir.1987) (per curiam), cert. denied, 485 U.S. 969, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988). Other circuit courts are in accord. See, e.g., United States v. Pinto, 905 F.2d 47, 50 (4th Cir.1990); ...