U.S. v. Penaranda

Decision Date12 July 2004
Docket NumberDocket No. 03-1055(L).,Docket No. 03-1062(L).
Citation375 F.3d 238
PartiesUNITED STATES of America, Appellee, v. Hector PENARANDA, also known as "El Viejo," Defendant-Appellant. United States of America, Appellee, v. Luis Rojas, also known as El Gordo, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Monica R. Jacobson, Alvy & Jacobson, New York, NY, for Defendant-Appellant Hector Penaranda.

Edward D. Wilford, New York, NY, for Defendant-Appellant Luis Rojas.

Helen Cantwell and Joshua A. Levine, Assistant United States Attorneys for the Southern District of New York, New York, NY, for Appellee the United States of America.

Before: WALKER, Chief Judge, JACOBS, CALABRESI, CABRANES, STRAUB, POOLER, SACK, SOTOMAYOR, KATZMANN, PARKER, RAGGI, WESLEY, and HALL, Circuit Judges.

CERTIFICATE OF QUESTIONS TO THE SUPREME COURT OF THE UNITED STATES

JOHN M. WALKER, JR., Chief Judge:

We ordered the pending appeals to be heard in banc, limited to the issue of the validity of the defendants' sentences in light of the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).1 We have done so because the active judges of this court are unanimously of the view that we should certify to the United States Supreme Court, pursuant to 28 U.S.C. § 1254(2), questions relating to that issue. In the most general sense, our question is whether the Blakely decision applies to the federal Sentencing Guidelines. However, recognizing that the Supreme Court has cautioned against questions of "objectionable generality" and prefers "a definite and clean-cut question of law," United States v. Mayer, 235 U.S. 55, 66, 35 S.Ct. 16, 59 L.Ed. 129 (1914), we will present three precise questions to the Court: (1) a broad but "clean-cut question of law" regarding Blakely's applicability to judicial fact-finding that results in an upward adjustment under the federal Sentencing Guidelines; and (2) two narrower formulations of that question pertaining specifically to the facts of these cases. Before framing our questions, we set forth the pertinent circumstances of the pending cases and the considerations that have impelled us to invoke the certification procedure.

I. Circumstances of the Cases
A. Hector Penaranda

The first case involves a sentence imposed following a jury verdict in the United States District Court for the Southern District of New York (Robert W. Sweet, Judge). Defendant-appellant Hector Penaranda was charged with and convicted of one count of conspiracy to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. In response to special questions on the verdict form, the jury specified that the conspiracy involved five kilograms or more of a substance containing cocaine and one kilogram or more of a substance containing heroin.

At sentencing, the district judge found by a preponderance of the evidence presented at trial that the conspiracy in fact involved at least twenty kilograms of cocaine and at least 1,200 grams of heroin. This meant that, under the Guidelines, Penaranda's crime warranted a base offense level of 34.2 No adjustments to that base level were made, and Penaranda's relatively clean record placed him in Criminal History Category I. The corresponding Guidelines range, then, was 151 to 188 months.

At the time of sentencing, defense counsel objected to the district judge's calculations; he maintained that the proper base offense level was 32, not 34, because the judge's findings concerning drug quantities were based on a cooperating co-conspirator's uncorroborated allegations and were not verified by the jury's verdict. Defense counsel argued that the court should consider only those quantities specifically determined by the jury—five kilograms of cocaine and one kilogram of heroin—in calculating Penaranda's sentence. The court disagreed, concluded that the base offense level of 34 was appropriate, and sentenced Penaranda to 151 months' imprisonment. On appeal, Penaranda argues that his sentence violates Blakely because "the sentencing court determined that [he] was responsible for a larger amount of drugs than that determined beyond a reasonable doubt by the jury."3 Letter from Monica R. Jacobson, Esq., pursuant to Fed. R.App. P. 28(j), to Roseann MacKechnie, Clerk of the Court (July 8, 2004).

B. Luis Rojas

The second case pending before us also originates in the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge), but it involves a sentence imposed following a guilty plea. Defendant-appellant Luis Rojas pled guilty, without a plea agreement, to an indictment charging him with one count of conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. During the course of his plea colloquy, Rojas waived his Sixth Amendment right to a jury trial, indicated that he understood that the district judge could "impose sentence just as if a jury had brought in a verdict of guilty" against him, and admitted to having conspired to distribute "five kilograms or more" of cocaine.

After his plea, but before sentencing, Rojas argued that, under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), he could not be sentenced to more than twenty years' imprisonment (the statutory maximum for drug crimes involving indeterminate quantities of narcotics, see 21 U.S.C. § 841(b)(1)(C)) because he had not allocuted to a determinate quantity of drugs and no jury had found that he was responsible for a determinate quantity.4 The Government responded that Apprendi was not implicated because the indictment recited that the conspiracy involved five kilograms or more of cocaine, Rojas had admitted as much, and the admitted quantity was sufficiently specific to sustain a conviction for a determinate quantity of drugs under 21 U.S.C. § 841(b)(1)(A). The district court agreed with the Government and proceeded to conduct a sentencing hearing.

Following the hearing, the district judge first determined, based on his own findings of fact, that the conspiracy involved 2,900 kilograms of cocaine. Under the Guidelines, this yielded a base offense level of 38. See U.S.S.G. §§ 2D1.1(a), (c). The court then applied (again, based on its own fact-finding) a three-level managerial role enhancement under U.S.S.G. § 3B1.1(b), a two-level enhancement for firearm possession under U.S.S.G. § 2D1.1(b)(1), and a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). This resulted in a total offense level of 40. Finally, the court concluded that Rojas's prior criminal activity placed him within Criminal History Category II. The applicable Guidelines range, then, was 324 to 405 months' imprisonment. The court sentenced Rojas within that range, to 360 months' imprisonment.

On appeal, Rojas argues that "the district court usurped the jury function and violated [his] Sixth Amendment rights." Specifically, he maintains that "issues of fact that can result in an increase in the sentence a defendant receives must be decided by a jury by proof beyond a reasonable doubt."

II. Considerations Affecting Certification
A. The Certification Procedure

Section 1254(2) (formerly section 1254(3)) of Title 28 provides:

Cases in the courts of appeal may be reviewed by the Supreme Court by the following methods:

. . .

(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

The Supreme Court has instructed that certification is reserved for "the rare instances ... when [it] may be advisable in the proper administration and expedition of judicial business." Wisniewski v. United States, 353 U.S. 901, 902, 77 S.Ct. 633, 1 L.Ed.2d 658 (1957) (per curiam). We have heeded that admonition and used the procedure sparingly. The last time was twenty-three years ago. See Iran Nat'l Airlines Corp. v. Marschalk Co., 453 U.S. 919, 101 S.Ct. 3154, 69 L.Ed.2d 1002 (1981).

B. The Relevant Legal Context

Since November 1, 1987, when the Sentencing Guidelines first became effective, district judges have been resolving disputed issues of fact to determine both the applicable sentencing range and the appropriateness of departures above or below the applicable range. Fourteen months after the Guidelines system went into effect, the Supreme Court upheld its constitutionality against delegation and separation-of-powers challenges. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Thereafter, the Court clarified that judicial fact-finding under the Guidelines could extend even to acquitted conduct "so long as that conduct has been proved by a preponderance of the evidence." United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam). Of course, fact-finding by district judges in connection with sentencing was a regular practice before the Guidelines. See, e.g., United States v. Fatico, 603 F.2d 1053, 1055-56 (2d Cir.1979). Indeed, such fact-finding comports with 18 U.S.C. § 3661, which states that "`[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.'" Watts, 519 U.S. at 158, 117 S.Ct. 633 (Scalia, J., concurring) (alteration in original) (quoting § 3661 in observing that "[i]n my view, neither the [Sentencing] Commission nor the courts have authority to decree that information which would otherwise justify enhancement of sentence or upward departure from the Guidelines may not be considered for that purpose. . . if...

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