U.S. v. Saavedra

• Citation: 148 F.3d 1311
• Decision Date: 06 August 1998
• Docket Number: No. 96-4808,96-4808
• Parties: 11 Fla. L. Weekly Fed. C 1696 UNITED STATES of America, Plaintiff-Appellee, v. Cristino SAAVEDRA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1311

148 F.3d 1311

11 Fla. L. Weekly Fed. C 1696

UNITED STATES of America, Plaintiff-Appellee, v. Cristino SAAVEDRA, Defendant-Appellant.

No. 96-4808.

United States Court of Appeals,

Eleventh Circuit.

Aug. 6, 1998.

Ana M. Jhones, Ft. Lauderdale, FL, for Defendant-Appellant.

Donald F. Chase, Dawn Bowen, Suzan Hill Ponzoli, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and BARKETT, Circuit Judges, and GODBOLD, Senior Circuit Judge.

DUBINA, Circuit Judge:

The defendant, Cristino Saavedra ("Saavedra"), appeals his 87-month sentence for conspiracy to distribute crack cocaine, which was imposed by the district court upon resentencing. For the reasons that follow, we vacate Saavedra's sentence and remand for resentencing.

I. History of the Case

Saavedra's codefendants agreed to sell ten kilograms of cocaine to a confidential informant. Saavedra and a codefendant delivered 2.03 kilograms of cocaine to an undercover government agent in a parking lot which is located within 500 feet of Miami Springs Elementary School.

Rather than charging Saavedra and his codefendants with violating 21 U.S.C. § 860, which prohibits drug activity near schools, the United States ("United States" or "government") obtained a two-count indictment charging them with conspiracy to possess cocaine with intent to distribute and with possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1). The United States subsequently filed a notice, entitled "Government's Notice Requesting Imposition of Enhanced Sentence," which stated that due to the fact that the indicted offenses transpired near a school, the United States would seek a higher sentence than the maximum punishment for possession with intent to distribute pursuant to 21 U.S.C. § 860.

Saavedra pled guilty to count one of the indictment charging a drug conspiracy. At his change of plea hearing, Saavedra's attorney informed the court that there was a dispute as to the amount of cocaine attributable to Saavedra and that he was contesting the government's position on the sentencing enhancement for violating 21 U.S.C. § 860. The court indicated that both of these disputes were sentencing issues, ascertained that Saavedra understood that the court would resolve them at the sentencing hearing, and accepted Saavedra's guilty plea.

Pursuant to his first appeal, Saavedra's initial sentence was vacated, and the case was remanded for resentencing. United States v. Saavedra, 37 F.3d 635 (11th Cir.1994) (per curiam). ¹ Upon resentencing, the district court found that Saavedra was responsible for 2.03 kilograms of cocaine and determined that his base offense level was 29, under United States Sentencing Commission, Guidelines Manual ("U.S.S.G."), § 2D1.2(a) (Nov. 1995). ² The court then adjusted the offense level downward by two levels for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). With a criminal history category of III, Saavedra's guideline range was 87 to 108 months, and the court imposed a sentence of 87 months.

II. Law and Analysis

We review de novo the district court's application of the Sentencing Guidelines to a given set of facts. See United States v. Reese, 67 F.3d 902, 908 (11th Cir.1995); United States v. Scroggins, 880 F.2d 1204, 1206 n. 5 (11th Cir.1989).

In this appeal, Saavedra argues that § 2D1.1 rather than § 2D1.2 applies to his conviction for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1). ³ Section 2D1.1 establishes the base offense levels for drug offenses, including 21 U.S.C. §§ 846 and 841(a)(1). Section 2D1.2 establishes the base offense levels for violations of 21 U.S.C. § 860. The Government contends that § 2D1.2 provides the correct basis for Saavedra's sentence because his actual conduct involved drug trafficking near an elementary school.

A. Sentencing Methodology Under the Sentencing Guidelines

Resolving the question posed by this appeal requires an understanding of the structure of the Sentencing Guidelines. Under the guidelines, a court arrives at the appropriate offense level by employing a two-step process: first determining which offense guideline section covers the offense of conviction, U.S.S.G. §§ 1B1.1(a), 1B1.2(a), next selecting the proper base offense level from among those contained in that guideline. U.S.S.G. § 1B1.1(b), 1B1.2(b); see also United States v. Castellanos, 904 F.2d 1490, 1493 (11th Cir.1990). Because it is the only link between the defendant's offense of conviction and his or her sentence, the offense guideline section is the foundation of the sentence.

Once the court has determined the correct offense guideline section, the court considers the appropriate guideline range within that section based on the defendant's actual conduct, including conduct which did not comprise an element of the offense of conviction. U.S.S.G. §§ 1B1.2(b), 1B1.3. Where appropriate, the sentencing court may consider the defendant's relevant conduct if that conduct is established by a preponderance of the evidence, rather than the proof beyond a reasonable doubt needed to establish elements of the criminal offense. See United States v. Averi, 922 F.2d 765, 766 (11th Cir.1991). Because it channels the remainder of the sentencing process, selection of the correct offense guideline section is critically important. The issue raised by this appeal is whether, at step one, the district court selected the correct offense guideline. We conclude that the court erred in basing Saavedra's sentence on § 2D1.2, rather than on § 2D1.1.

1. Identifying the Offense of Conviction

In order to correctly determine the applicable offense guideline, a sentencing court must identify "the offense guideline section in Chapter Two (Offense Conduct) most applicable to the offense of conviction." U.S.S.G. § 1B1.2(a). The offense of conviction is defined as "the offense conduct charged in the count of the indictment ... of which the defendant was convicted." Id. Here, the indictment is a study in brevity. The count to which Saavedra pled guilty merely charges that Saavedra and his codefendants conspired to distribute controlled substances from July 10 to July 12, 1991, in Miami Springs, Florida, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment does not refer to 21 U.S.C. § 860. It does not mention the proximity of Miami Springs Elementary School to the drug activity, and it does not even give the specific location of the drug activity from which such proximity could be learned or inferred. Therefore, it follows that Saavedra's offense of conviction is § 841(a), rather than § 860, and it was error for the district court to base Saavedra's sentence on an offense guideline applicable to violations of § 860. United States v. Jackson, 117 F.3d 533, 535 (11th Cir.1997) (holding that it was error to sentence defendant under offense guideline section applicable to violations of civil rights where indictment did not charge a civil rights violation or give any indication that a civil rights violation was implicated).

The general rule that the offense of conviction is the offense conduct charged in the indictment has a limited exception:

Where a stipulation that is set forth in a written plea agreement or made between the parties on the record during a plea proceeding specifically establishes facts that prove a more serious offense or offenses than the offense or offenses of conviction, the court is to apply the guideline most applicable to the more serious offense....

U.S.S.G. § 1B1.2 comment. (n.1) (explaining application of 1B1.2(a)); see also Braxton v. United States, 500 U.S. 344, 346, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991); United States v. Day, 943 F.2d 1306 (11th Cir.1991). The United States argues that this exception applies to this case, and that its application justifies sentencing Saavedra for sanctioned behavior beyond the offense charged in the indictment. It is true that at the sentencing stage and thereafter, Saavedra conceded that his drug activities took place within the requisite proximity to a school to satisfy a conviction under 21 U.S.C. § 860. However, he never made the sort of formal stipulation that would support sentencing him for a violation of § 860. Saavedra's oral plea agreement did not contain a stipulation that his drug activity took place near a school. If a written plea agreement was ever filed in this case, it is not part of the record in this appeal, and therefore, we have no written stipulation. Summarizing the evidence supporting Saavedra's guilty plea, the United States made no mention of the location of Saavedra's drug activity or of Miami Springs Elementary School. Only Saavedra's attorney mentioned § 860, and she did so in order to formalize Saavedra's objection to the proposed § 860 sentencing "enhancement."

2. Ascertaining the Applicable Offense Guideline

Having identified § 841(a)(1) as the offense of conviction, we turn, as the guidelines direct, to the Statutory Index (Appendix A of the Sentencing Guidelines) to assist us in determining the applicable offense guideline section from Chapter Two. U.S.S.G. § 1B1.1(a). The introduction to the Statutory Index explains that "[t]his index specifies the guideline section or sections ordinarily applicable to the statute of conviction." The Statutory Index lists only § 2D1.1 for violations of § 841(a) and only § 2D1.2 for violations of § 860. ⁴ The United States urges us to sidestep the Statutory Index in this case, arguing that it merely lists examples of guidelines to apply to various criminal statutes. This characterization significantly understates the authority of the Statutory Index. The preamble to the Statutory Index indicates that in "atypical" cases, the listed guideline provision might not apply to a statutory offense matched with it in the Index, in which case ...