U.S. v. Rodriguez-Gonzalez
| Decision Date | 27 March 1990 |
| Docket Number | Nos. 714,D,RODRIGUEZ-GONZALEZ and R,861,s. 714 |
| Citation | 899 F.2d 177 |
| Parties | UNITED STATES of America, Appellee, v. Ramoneuben Vargas-Santanas, Defendants-Appellants. ockets 89-1346, 89-1348. |
| Court | U.S. Court of Appeals — Second Circuit |
David A. Lewis, New York City, The Legal Aid Soc., Federal Defender Services Unit, for defendant-appellant Rodriguez-Gonzalez.
Donald Du Boulay, New York City, for defendant-appellant Vargas-Santanas.
David B. Fein, New York City, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., S.D.N.Y., David E. Brodsky, Asst. U.S. Atty., of counsel), for appellee.
Before FEINBERG, CARDAMONE and MINER, Circuit Judges.
Defendants Ramon Rodriguez-Gonzalez and Reuben Vargas-Santanas appeal from sentences imposed in the United States District Court for the Southern District of New York, after a jury trial before Judge Pierre N. Leval. Appellants were both convicted of various narcotics offenses, specifically violations of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(B), 841(b)(1)(C) and 846. In addition, Rodriguez-Gonzalez was acquitted of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). The district court sentenced Rodriguez-Gonzalez to concurrent terms of 110 months on all counts and supervised release for four years thereafter on the substantive counts, and Vargas-Santanas to concurrent terms of 115 months and supervised release for five years on all counts.
Because appellants' underlying acts occurred after November 1, 1987, the Federal Sentencing Guidelines apply. Appellants raise a number of issues in their appeals, the most significant concerning whether the Double Jeopardy and Due Process Clauses of the Fifth Amendment prohibited the enhancement of Rodriguez-Gonzalez' sentence on the basis of conduct for which he had been acquitted.
For reasons given below, we affirm the judgments of the district court.
The government introduced evidence at trial from which a jury could find that appellants operated a narcotics business out of Vargas-Santanas' apartment on the Upper West Side of Manhattan, and that they sold cocaine to, among others, Jim Joy, a confidential informant working for the Drug Enforcement Administration (DEA). The evidence principally concerned two drug transactions. The first occurred on November 1, 1988, when Jim Joy arranged, through a person named "Papo," to meet individuals from whom he could purchase a kilogram of cocaine. That day, Papo brought Joy to the apartment of Vargas-Santanas, for whom Papo worked as a runner, bringing cocaine customers in exchange for cocaine or money. During this transaction, Vargas-Santanas told Joy that in addition to the cocaine that he would sell to him that day, he could sell Joy a kilogram of cocaine at a later time. Vargas-Santanas sold Joy 101 grams of cocaine, less than an eighth of a kilogram, but he showed Joy what Vargas-Santanas said was a kilogram, which he could not break apart because he had "somebody coming over for it." Vargas-Santanas and Joy negotiated over the price for the 101 grams, and throughout the negotiations and sale, Rodriguez-Gonzalez stood by. Joy told Vargas-Santanas that he would be in touch with him again through Papo, and as Papo and Joy left the apartment, Vargas-Santanas gave Papo a $50 bill and a small packet of cocaine. Later that night, Papo returned to the apartment on several occasions with other cocaine customers for Vargas-Santanas and Rodriguez-Gonzalez.
On the next day, Joy arranged through Papo to buy a kilogram of cocaine from Vargas-Santanas. Joy and Papo were let into the apartment by Rodriguez-Gonzalez, who was alone and told them that Vargas-Santanas would return soon. After a few minutes, Rodriguez-Gonzalez placed a telephone call and told Joy and Papo that Vargas-Santanas was on his way. While they waited, three or four people came in and out of the apartment, and Rodriguez-Gonzalez made at least two cocaine sales. When Vargas-Santanas arrived at the apartment, he placed a telephone call and told Joy to come back to the apartment in about 40 minutes for the kilogram. When Joy returned to the apartment, he was once again let in by Rodriguez-Gonzalez, and while Joy waited, Rodriguez-Gonzalez made two telephone calls and then said that Vargas-Santanas would be there shortly. When Vargas-Santanas returned with the kilogram, Joy sent Papo out to get the money, and Vargas-Santanas stated that he would return with the cocaine when Rodriguez-Gonzalez informed him that the money had arrived. Vargas-Santanas then left the apartment again.
Shortly thereafter, DEA Special Agents, responding to a signal from Joy, knocked on the door and identified themselves as police officers. Rodriguez-Gonzalez, who heard the knock and announcement, ran back to the kitchen and threw a bag containing cocaine and a triple-beam scale out the window. The agents, after receiving no response, forcibly entered the apartment and apprehended Rodriguez-Gonzalez as he was running from the kitchen toward the living room. In performing a security sweep of the apartment, DEA Agents found in the living room a loaded .357 magnum revolver on top of stereo equipment. Agents also found narcotics paraphernalia and drug records in the living room, and, in the interior courtyard of the building, below the kitchen window, the bag which contained the scale and almost 500 grams of cocaine. Vargas-Santanas was arrested several days later.
At trial, Rodriguez-Gonzalez and Vargas-Santanas called no witnesses and did not testify.
At his sentencing proceeding in June 1989, Rodriguez-Gonzalez objected to the computation of his total offense level under the Guidelines, contained in the presentence investigation report prepared by the Probation Department. His base offense level came to 26, based on a total of 1580.6 grams of cocaine. United States Sentencing Commission, Guidelines Manual, Sec. 2D1.1(c) (Nov. 1989) (hereinafter U.S.S.G.). The Probation Department added two levels to the base offense level for the specific offense characteristic that a firearm "was possessed during commission of the offense," U.S.S.G. Sec. 2D1.1(b)(1), and added two more levels for Rodriguez-Gonzalez' attempt to destroy or conceal material evidence, U.S.S.G. Sec. 3C1.1. Accordingly, the total offense level was 30, which resulted in a Guidelines range of 97-121 months. After hearing argument, the district court determined that the Probation Department correctly calculated Rodriguez-Gonzalez' Guidelines range and imposed concurrent terms of 110 months on each count, to be followed by four years of supervised release.
Vargas-Santanas was sentenced a week later. Vargas-Santanas' base offense level was also calculated at 26, based on a total of 1580.6 grams of cocaine. U.S.S.G. Sec. 2D1.1(c). Two levels were added to his base offense level, as with Rodriguez-Gonzalez, for the possession of a firearm during commission of the offense, Sec. 2D1.1(b)(1), and two more levels for being an organizer, leader, manager or supervisor in the criminal activity, U.S.S.G. Sec. 3B1.1(c). Accordingly, the total offense level was 30, which produced a Guidelines range of 97-121 months. After hearing oral argument, the district court accepted the calculations of the Probation Department and imposed concurrent terms of 115 months on each count, to be followed by five years of supervised release.
1. Double Jeopardy--Rodriguez-Gonzalez asserts that the district court improperly enhanced his Guidelines sentence on the basis of alleged conduct for which he was acquitted, i.e., using a firearm in connection with a drug offense in violation of 18 U.S.C. Sec. 924(c), and that this enhancement violated the Double Jeopardy and Due Process Clauses of the Fifth Amendment. As a threshold matter, we must address the government's contention that Rodriguez-Gonzalez failed to raise his constitutional claims in the district court, and therefore waived his right to appellate review on these issues. The government maintains that Rodriguez-Gonzalez' only objection below was to the "appropriateness" of the two-point enhancement and not to its constitutionality, and that both the government's response to Rodriguez-Gonzalez' objection and the district court's resolution of the issue also dealt only with appropriateness and not constitutionality.
We disagree. An objection is adequate which fairly alerts the court and opposing counsel to the nature of the claim. See United States v. Check, 582 F.2d 668, 676 & n. 22 (2d Cir.1978); cf. Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir.1982) (in banc). At the sentencing proceeding, appellant stated that "when the jury acquits a defendant on circumstances that are practically the same as the basis for the increase in the guideline range included in the guideline statement," it was not appropriate for a court "after the jury has acquitted him on that count, to add two points to the basis of his sentence." Although appellant failed to couch his objection in the specific terms "double jeopardy," the nature of his argument fairly alerted both the court and the prosecutor to his constitutional claim, since one of the distinct abuses that the guarantee against double jeopardy protects against is a second prosecution for the same offense after acquittal. United States v. Halper, --- U.S. ----, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). Moreover, in pointing to the acquittal, Rodriguez-Gonzalez did not say that he was relying on collateral estoppel. Finally, the responses of the court and the government indicate that they were cognizant of the nature of appellant's claim. One of the arguments advanced by the prosecutor and accepted by the court--that the count under 18 U.S.C. Sec. 924(c) charged different conduct than Guideline Sec. 2D1.1(b)(1)--spoke to the...
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