U.S. v. Ortega

• Decision Date: 30 August 1996
• Docket Number: 747,D,Nos. 746,s. 746
• Citation: 94 F.3d 764
• Parties: UNITED STATES of America, Appellee, v. Jose ORTEGA, Jesus Mancinas, Defendants-Appellants. ockets 95-1366, 95-1369.
• Court: U.S. Court of Appeals — Second Circuit

Page 764

94 F.3d 764

UNITED STATES of America, Appellee, v. Jose ORTEGA, Jesus Mancinas, Defendants-Appellants.

Nos. 746, 747, Dockets 95-1366, 95-1369.

United States Court of Appeals Second Circuit.

Argued Dec. 22, 1995.

Decided Aug. 30, 1996.

Barry E. Griffith, Rutland, Vermont (Griffith & Lundeen, P.C., of counsel), for Defendant-Appellant Jose Ortega.

Bradley S. Stetler, Burlington, Vermont (Stetler & Allen, of counsel), for Defendant-Appellant Jesus Mancinas.

David V. Kirby, Chief, Criminal Division, Office of United States Attorney, Rutland, Vermont (Charles R. Tetzlaff, United States Attorney, Gary G. Shattuck, Assistant United States Attorney, of counsel), for Appellee.

Before KEARSE, MAHONEY, and PARKER, Circuit Judges.

MAHONEY, Circuit Judge:

Defendants-appellants Jose Ortega and Jesus Mancinas appeal from judgments entered June 19, 1995 in the United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, that convicted them, following guilty pleas, of conspiring to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). Ortega and Mancinas challenge the district court's calculation of their sentences pursuant to the United States Sentencing Guidelines (the "Guidelines"). Specifically, they contend that the district court (1) erroneously assessed a two-point enhancement of their base offense levels for possession of a firearm, and (2) incorrectly calculated their criminal history categories by considering prior misdemeanor convictions obtained in violation of their Sixth Amendment right to counsel.

Because the district court failed to make findings sufficient to support the firearm adjustments and incorrectly calculated Mancinas' criminal history category, we vacate defendants-appellants' sentences and remand for resentencing.

Background

On July 27, 1994, defendants-appellants were indicted for their involvement, while residing together in the Brattleboro, Vermont area, in a marijuana distribution conspiracy. The indictment charged Mancinas and Ortega with one count of conspiring to possess with intent to distribute and to distribute marijuana between May 1992 and September 1993, as well as with substantive counts of marijuana distribution and possession. Mancinas and Ortega entered guilty pleas to the conspiracy count, and appeared together before the district court for sentencing on June 19, 1995.

In calculating defendants-appellants' offense levels under the Guidelines, the district court determined that the amount of marijuana attributable to the conspiracy was between forty and sixty kilograms, and accordingly set defendants-appellants' base offense levels at twenty. See USSG § 2D1.1(c)(10). Applying section 2D1.1(b)(1) of the Guidelines, which instructs the court to "increase by 2 levels" a defendant's offense level "[i]f a dangerous weapon (including a firearm) was possessed," the district court assessed each defendant-appellant a two-level upward adjustment in his respective offense level.

The weapon upon which the increase was predicated was a sawed-off shotgun that had been seized on March 16, 1992, during a lawful search by Vermont police officers of an apartment shared by Ortega, Mancinas, Michael Therrien, Jamie Guardado, and two other individuals. The search had been authorized following the arrest, earlier that day, of Therrien and Guardado for possession of marijuana in violation of Vermont law. Approximately one week after the shotgun was seized, Mancinas informed Vermont police officers that the weapon belonged to him.

Following other adjustments not relevant to this appeal, the district court set Ortega's offense level at 22 and Mancinas' offense level at 19. The court then proceeded to determine their criminal history categories.

In calculating Ortega's criminal history category, the district court assessed one criminal history point for a 1992 conviction for unlawful mischief, a misdemeanor under Vermont law. Ortega had pled guilty to the offense at a state court proceeding at which he had requested and had been denied the assistance of counsel. The state court imposed a 3-6 month suspended sentence, placed Ortega on probation, and ordered him to pay restitution, a $250 fine, and a $10 surcharge. A Vermont state court subsequently vacated all obligations associated with the suspended sentence and the probation, and Ortega never served any time in prison as a result of the conviction. The additional criminal history point, which was added to one other criminal history point for a total of two points, increased Ortega's criminal history category from category I to category II, thereby increasing his sentencing range (based on his offense level of 22) from 41-51 months to 46-57 months. See USSG ch. 5, pt. A (Sentencing Table).

In calculating Mancinas' criminal history category, the district court assessed one criminal history point for a 1992 conviction for disorderly conduct, a misdemeanor under Vermont law. Mancinas had pled guilty to the offense in a state court proceeding at which he had requested and had been denied the assistance of counsel. The state court imposed a 0-60 day suspended sentence and placed Mancinas on probation. Seven months later, Mancinas was convicted of driving while intoxicated ("DWI") in violation of Vermont law. Because the DWI conviction violated the terms of Mancinas' probation, the state court, following a hearing at which Mancinas was represented by counsel, revoked Mancinas' probation and ordered him to serve thirty days of the previously suspended sentence. The additional criminal history point for the disorderly conduct conviction, which was added to six other criminal history points for a total of seven points, increased Mancinas' criminal history category from category III to category IV, thereby increasing his sentencing range (based on his offense level of 19) from 37-46 months to 46-57 months. See id.

The district court sentenced both Mancinas and Ortega to forty-six months imprisonment, to be followed by a three-year term of supervised release. Defendants-appellants, who are currently serving their sentences, appealed.

Discussion

A. The Firearm Adjustments.

Mancinas and Ortega argue that the district court should not have enhanced their respective offense levels pursuant to section 2D1.1(b)(1) of the Guidelines because Mancinas' possession of the firearm occurred on and before March 16, 1992, prior to the May 1992 onset of the conspiracy for which defendants-appellants were convicted. Ortega further argues that he should not be held responsible for his coconspirator's possession of the firearm.

"The applicability of a specific offense characteristic, such as section 2D1.1(b)(1), depends on whether the conduct at issue is 'relevant' to the offense of conviction." United States v. Pellegrini, 929 F.2d 55, 56 (2d Cir.1991) (per curiam) (quoting USSG § 1B1.3). The Guidelines define relevant conduct as consisting of, inter alia:

(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,

that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense[.]

USSG § 1B1.3(a)(1). Additionally, with respect to offenses "for which [the Guidelines] would require grouping of multiple counts," including the drug offenses in this case, see USSG § 3D1.2(d), relevant conduct includes "all acts and omissions described [in section 1B1.3(a)(1) ] that were part of the same course of conduct or common scheme or plan as the offense of conviction." USSG § 1B1.3(a)(2); see also Pellegrini, 929 F.2d at 56; United States v. Kim, 896 F.2d 678, 682 (2d Cir.1990).

The government bears the burden of proving that specified conduct is relevant to the offense of conviction. See United States v. Vazzano, 906 F.2d 879, 883 (2d Cir.1990); see also United States v. Butler, 970 F.2d 1017, 1026 (2d Cir.) ("In the context of sentencing, if the government seeks increased punishment, it has the burden of proving that the circumstances warrant such an increase. See, e.g., United States v. Font-Ramirez, 944 F.2d 42, 49 (1st Cir.1991) (burden on government to prove sufficient facts for enhancements for, e.g., ... possession of firearms), cert. denied, [502 U.S. 1065, 112 S.Ct. 954, 117 L.Ed.2d 122] (1992)."), cert. denied, 506 U.S. 980, 113 S.Ct. 480, 121 L.Ed.2d 386 (1992). In the case of the section 2D1.1(b)(1) enhancement, "[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." USSG § 2D1.1, comment. (n.3).

For the weapons enhancement to apply to Mancinas, there was no requirement that the gun possession had to be linked to the charged conspiracy that commenced in May 1992 as long as "the weapon was possessed in connection with drug activity that was part of the same course of conduct or common scheme as the offense of conviction" within the meaning of section 1B1.3(a)(2). United States v. Quintero, 937 F.2d 95, 97 (2d Cir.1991). As we explained in Quintero, which involved a defendant who pled guilty to an act of cocaine distribution on May 16, 1989:

Since, with respect to drug offenses, "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction" are relevant conduct, [USSG] § 1B1.3(a)(2), the gun possessed on June 14[, 1989] may result in a weapons adjustment if the gun was possessed in connection with drug...