U.S. v. Sanchez
| Decision Date | 29 February 2008 |
| Docket Number | Docket No. 05-3812(L).,Docket No. 05-4717(CON).,Docket No. 05-3819(CON).,Docket No. 05-3824(CON). |
| Citation | 517 F.3d 651 |
| Parties | UNITED STATES of America, Appellee, v. Alfonso SANCHEZ, Daryl Fox, Troy Keys, and Raymond Fox, aka Knoc, aka Nack, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Stacey Richman, Bronx, NY, (Law Office of Murray Richman, Bronx, NY, on the brief), for Defendant-Appellant Troy Keys.
Linda George, Hackensack, NJ, for Defendant-Appellant Raymond Fox.
Before: KEARSE, STRAUB, and POOLER, Circuit Judges.
Defendants Alfonso Sanchez, Daryl Fox (or "Daryl"), Troy Keys, and Raymond Fox (or "Raymond") appeal from judgments entered in the United States District Court for the Southern District of New York, Miriam Goldman Cedarbaum, Judge, following their pleas of guilty to conspiracy to distribute and possess with intent to distribute narcotics, in violation of 21 U.S.C. § 846, and distribution of and possession with intent to distribute narcotics, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). Sanchez was sentenced principally to 188 months' imprisonment; Daryl Fox was sentenced principally to 135 months' imprisonment; and Keys was sentenced principally to 235 months' imprisonment; each of those prison terms was to be followed by a five-year term of supervised release. Raymond Fox, against whom the government had filed a prior-felony information pursuant to 21 U.S.C. § 851 giving notice that he was subject to the enhanced penalties set forth in 21 U.S.C. § 841(b)(1)(A), was sentenced principally to 240 months' imprisonment, to be followed by a 10-year term of supervised release. On appeal, Sanchez and Keys challenge the prison terms imposed on them, contending principally that the district court erred in believing that it lacked authority under 28 U.S.C. § 994(h) to impose shorter terms. Raymond Fox challenges the constitutionality of 21 U.S.C. § 851. Daryl Fox's attorney has moved to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that Daryl has no nonfrivolous issues for appeal. For the reasons that follow, we affirm as to Raymond Fox; we dismiss the appeal of Daryl Fox, with instruction for the clerical correction of the judgment entered against him; and we remand for clarification, and for such further proceedings as may be necessary, with respect to the sentences imposed on Sanchez and Keys.
The events leading to the present prosecution, which followed a lengthy investigation by the Drug Enforcement Administration ("DEA") into narcotics trafficking in the New York area, are not in dispute.
On November 5, 2003, DEA agents raided an apartment used by defendants in their narcotics distribution business. As some of the agents approached the door of the apartment, others observed bags being thrown out of a window in the apartment and observed several people — including Sanchez, Daryl Fox, and Raymond Fox— exiting through the window. In the bags thrown through the window, the agents found approximately $60,000 in cash, 1,860 grams of cocaine, and 478 grams of cocaine base in a form commonly known as crack ("crack").
Defendants and others were subsequently arrested. The pertinent superseding indictment charged defendants in two counts: (a) conspiracy to distribute and possess with intent to distribute more than five kilograms of a substance containing cocaine and more than 50 grams of a substance containing crack, in violation of 21 U.S.C. § 846 (count one); and (b) distribution of and possession with intent to distribute those quantities of substances containing cocaine and crack, respectively, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) (count two). Under the pertinent provisions of § 841(b)(1)(A), the penalty for each of the above charges included imprisonment for a maximum of life or a minimum of 10 years, or, as to a defendant who committed such a crime after a prior conviction of a drug trafficking felony, imprisonment for a maximum of life or a minimum of 20 years. See 21 U.S.C. § 841(b)(1)(A) (); id. § 846 (). Pursuant to 21 U.S.C. § 851(a)(1), the government filed an information against Raymond Fox (the "§ 851 Information") alleging that his record included prior convictions for drug trafficking felonies.
In the summer of 2004, Keys, Daryl Fox, and Raymond Fox pleaded guilty to counts one and two of the superseding indictment. Sanchez pleaded guilty to both of those counts insofar as they charged offenses with respect to cocaine but denied his involvement with crack; the district court accepted his plea as thus limited.
Daryl Fox entered his plea of guilty pursuant to a plea agreement. The agreement stated the understanding that, under the Sentencing Guidelines ("Guidelines"), Daryl's criminal history category ("CHC") was III; the parties stipulated that his total offense level would be 31. Accordingly, subject to a final determination by the district court, the parties agreed that Daryl's range of imprisonment would be 135-168 months. Daryl agreed, inter alia, not to appeal any sentence imposing a prison term within or below that range. The prison term eventually imposed on Daryl was 135 months.
A presentence report ("PSR") was prepared on each of the defendants. The PSRs on Sanchez, Keys, and Raymond Fox, all of whom were in their early 30s at the time of the present offenses, reported that each of them had previously been convicted of at least two drug trafficking felonies or violent felonies, and that each was thus a career offender within the meaning of Guidelines § 4B1.1 (the "career-offender guideline"). Subsection (a) of that guideline states that
[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Guidelines § 4B1.1(a). Subsection (b) of that guideline provides that the CHC of a career offender is VI. See id. § 4B1.1(b). Career-offender status may also increase the defendant's offense level. Before any adjustment for acceptance of responsibility, the offense level of a career offender whose offense subjects him to a maximum prison term of life is at least 37. See id.
None of the defendants disputed the accuracy of the PSRs' descriptions of their respective criminal records. The PSR for Sanchez and the PSRs for Keys and Raymond as ultimately amended found that the total offense level for each, taking into account a three-step decrease for acceptance of responsibility, was 34. Given an offense level of 34 and a CHC of VI, the Guidelines-recommended range of imprisonment for each of these three defendants was 262-327 months. The PSR for Raymond noted that, by reason of the § 851 Information filed against him, he was subject to a 20-year statutory minimum prison term.
Defendants were sentenced during the summer of 2005. In January 2005, the Supreme Court had decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), holding that the Guidelines are not mandatory but advisory. Each defendant urged the district court to impose a prison term below the range recommended for him under the advisory Guidelines. A separate sentencing hearing was held for each defendant.
To the extent pertinent to his appeal, Keys's principal contention at sentencing was that career-offender status substantially over represented the seriousness of his criminal history. His record consisted of two prior felony convictions: a 1990 New York State conviction for criminal possession of a controlled substance in the third degree, for which he was sentenced to serve 1-3 years in prison and served approximately six months; and a 1991 New York State conviction for attempted criminal possession of a controlled substance in the fifth degree, for which he was sentenced to 1½-3 years in prison and served the minimum. Keys pointed out that his prior offenses were committed when he was a very young man and that he had never served more than 18 months in jail — substantially less than the 10-year minimum sentence he was facing for the charges in the instant case. Keys's attorney argued that Keys, who had steady legitimate employment and a positive recommendation from one of his former employers, was not the type of person to whom career-offender status was intended to be applied and urged the court not to sentence him to 262-327 months' imprisonment as recommended by the PSR, but rather "to sentence him to the mandatory minimum" of 120 months (Keys Sentencing Transcript, June 28, 2005 ("Keys S.Tr."), at 8; see also id. at 21-23).
The district court stated that "because of the career offender statute it will certainly have to be more than th[e mandatory minimum]" (id. at 14), referring to 28 U.S.C. § 994(h),...
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