U.S. v. Sanchez

• Citation: 908 F.2d 1443
• Decision Date: 17 July 1990
• Docket Number: Nos. 89-50427,89-50428 and 89-50433,s. 89-50427
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sixto Humberto SANCHEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Reyes Acebes BARAJAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard T. TERRONES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1443

908 F.2d 1443

UNITED STATES of America, Plaintiff-Appellee, v. Sixto Humberto SANCHEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Reyes Acebes BARAJAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard T. TERRONES, Defendant-Appellant.

Nos. 89-50427, 89-50428 and 89-50433.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1990.

Decided July 17, 1990.

William R. Burgener, San Diego, Cal., for defendant-appellant, Sixto Humberto Sanchez.

Susan Cardine, San Diego, Cal., for defendant-appellant, Reyes Acebes Barajas.

Ronald Vincent Lolordo, San Diego, Cal., for defendant-appellant, Richard T. Terrones.

Laura J. Birkmeyer, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

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

Before ALARCON, BRUNETTI and O'SCANNLAIN, Circuit Judges.

ALARCON, Circuit Judge:

Reyes Acebes Barajas, Sixto Humberto Sanchez, and Richard Trinidad Terrones appeal from the district court's imposition of sentence. Each defendant was found guilty after a jury trial of importation of a controlled substance in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 952 and 960, conspiracy to import a controlled substance in violation of 21 U.S.C. Secs. 952, 960, and 963, possession of a controlled substance with intent to distribute in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1), and conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846.

PERTINENT FACTS

At 6:00 p.m. on December 15, 1989, acting on information in the United States Customs Treasury Enforcement Communication System, border agents at the San Ysidro Port of Entry directed three pickup trucks attempting to cross the border from Mexico into the United States to secondary inspection. The trucks, one driven by each appellant, were traveling minutes apart. Sanchez and Terrones crossed first, in pickup trucks outfitted with camper shells, and Barajas followed in a pickup truck with an open bed. After an inspection, the agents discovered secret compartments that had been built into the fronts of the two camper shells. In the truck driven by Sanchez, the agents found approximately 147 kilograms of 100 percent pure cocaine. In the truck driven by Terrones, the agents found 129 kilograms of 85 percent pure cocaine.

Barajas, Sanchez, and Terrones were each indicted for importation of a controlled substance, conspiracy to import a controlled substance, possession of a controlled substance with intent to distribute, and conspiracy to import a controlled substance with intent to distribute. Following a jury trial, Barajas, Sanchez, and Terrones were each convicted of all charges. Sanchez and Terrones each received a prison sentence of 210 months. The district court expressly found that Sanchez and Terrones were not minor participants in the offense and had not accepted responsibility for their conduct. The district court concluded that Barajas played a managerial role in the offense. Barajas received a sentence of 293 months in prison. Each appellant timely appealed.

I. Due Process Challenge to the Prosecutor's Role under the Guidelines

Barajas contends that the Sentencing Guidelines violate the due process clause of the fifth amendment by effecting a de facto transfer of sentencing authority from the district court to the prosecutor. Barajas argues that "[t]his newly acquired power of the prosecutor's results from 1) the prosecutor's unbridled discretion to choose from among many crimes when charging a defendant, and 2) the fact that, once the charges are fixed, the Sentencing Guidelines foreclose any discretion on the part of the judge in fashioning a sentence." Appellant Barajas' Opening Brief at 7. Barajas specifically attacks the prosecution's decision to seek an enhancement for his managerial role in the offense, pursuant to United States Sentencing Commission, Guidelines Manual (U.S.S.G.) Sec. 3B1.1 (1989). "Whether application of the Guidelines violates fifth amendment guarantees of due process is a question of law and is reviewed de novo." United States v. Brady, 895 F.2d 538, 539 (9th Cir.1990).

Barajas' first challenge concerns a feature of the prosecution's role that is neither novel under the Sentencing Guidelines nor a violation of an accused's due process rights. As the Supreme Court stated in Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), " '[s]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.' " Id. at 607, 105 S.Ct. at 1530 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978)); see also United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir.1986) ("Charging decisions are generally within the prosecutor's exclusive domain."); United States v. Miller, 722 F.2d 562, 565 (9th Cir.1983) ("[S]eparation of powers requires that the judiciary remain independent of executive affairs.... Charging decisions are generally within the prosecutor's exclusive domain."). As long as the decision to prosecute is not " ' "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification," ' " the prosecutor's charging discretion remains unfettered. Wayte v. United States, 470 U.S. at 608, 105 S.Ct. at 1531 (quoting Bordenkircher v. Hayes, 434 U.S. at 364, 98 S.Ct. at 668 (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962))). Barajas makes no allegation of selective prosecution in this case.

Barajas offers United States v. Roberts, 726 F.Supp. 1359 (D.D.C.1989), to support his argument that the sentencing court's role has become largely ministerial under the Sentencing Guidelines. In Roberts, the district court observed that under the Guidelines "what is new and what is revolutionizing the criminal justice system is that, unlike in the past, when the prosecutor now selects the charge, his decision is generally tantamount also to a decision as to the sentence." Id. at 1366 (footnotes omitted). The district court in Roberts also commented that due process protections were vitiated in sentencing under the Guidelines because "first, the prosecution almost invariably has a choice among a considerable number of statutes and guideline provisions for proceeding against a defendant accused of criminal activity; and second, the mandatory sentencing laws and We are unpersuaded by the district court's reasoning in Roberts. We have recently held that the Sentencing Guidelines' limitation of the sentencing court's discretion does not violate a defendant's procedural due process rights. United States v. Brady, 895 F.2d 538, 541-43 (9th Cir.1990). In Brady, we recognized that

                the guidelines have brought about such relative inflexibility with respect to sentencing that, once the charges are fixed, the judicial contribution is ... largely ministerial."    Id. at 1363, 1368 ("It is not necessary, however, to rest the resolution of the cases before the Court on so broad a ruling....").  Barajas contends that the Sentencing Guidelines constrict the sentencing court's discretion and violate due process by permitting the prosecutor to seek an enhancement under U.S.S.G. Sec. 3B1.1
                

"Procedurally, the only difference between the sentencing process under the guidelines and the prior indeterminate sentencing system is the reduction of the sentencing court's discretion.... The guidelines define explicitly the means by which a court should determine a sentence, and require a sentencing court to justify any departure. See 18 U.S.C. Sec. 3553(c). A defendant 'has the right to appear, to offer evidence, and to challenge the Government's evidence.' "

Id. at 542 (quoting United States v. Thomas, 884 F.2d 540, 544 (10th Cir.1989)) (quoting United States v. Vizcaino, 870 F.2d 52, 56 (2d Cir.1989)). "In short, 'the Sentencing Guidelines provide--if nothing else--satisfactory procedural safeguards to satisfy the demands of the due process clause.' " Id. (quoting United States v. Vizcaino, 870 F.2d at 56).

These procedural safeguards are set forth in 18 U.S.C. Secs. 3552 and 3553 and Fed.R.Crim.P. 32. We have summarized those procedures as follows:

18 U.S.C. Sec. 3552(d) mandates that the defendant receive a copy of his or her presentence report a minimum of ten days in advance of sentencing. Prior to imposition of sentence, the court must permit the government and the defendant to submit materials addressing the accuracy of the presentence report. 18 U.S.C. Sec. 3553(d). Fed.R.Crim.P. 32(a)(1) also requires that the court provide the defendant with notice of the probation officer's determination of "the sentencing classifications and sentencing guideline range believed to be applicable." Rule 32(a)(1) guarantees that the defendant have the opportunity to comment upon these conclusions, as well as any facts contained in the presentence reports.

United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir.1989). In addition, the sentencing court must provide a defendant with notice of an intended upward departure and afford his counsel an opportunity to comment. Id. Because a defendant is accorded an adequate opportunity to assist the district court in arriving at its sentencing decision, the Sentencing Guidelines are procedurally sufficient to survive due process scrutiny under the balancing test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). United States v. Brady, 895 F.2d at 542-43.

The Sentencing Guidelines' procedural safeguards are not nullified by section 3B1.1. Section 3B1.1 requires the sentencing court to assess a defendant's role in the offense and impose an enhancement...