U.S. v. Sanchez, s. 00-13347

• Decision Date: 26 February 2001
• Docket Number: Docket No. 98-00049-CR-HLM-4-5,Docket No. 98-00049-CR-06-HLM,Nos. 00-13347,N,s. 00-13347
• Citation: 242 F.3d 1294
• Parties: (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. IGNASIO MALDENALDO SANCHEZ, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANTIAGO GILBERTO SANCHEZ, Defendant-Appellant. o. 00-13447 Non-Argument Calendar D.C.D.C
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1294

242 F.3d 1294 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. IGNASIO MALDENALDO SANCHEZ, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANTIAGO GILBERTO SANCHEZ, Defendant-Appellant.

Nos. 00-13347, No. 00-13447

Non-Argument Calendar

D.C. Docket No. 98-00049-CR-06-HLM

D.C. Docket No. 98-00049-CR-HLM-4-5

UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT

Feb. 26, 2001

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Northern District of Georgia

Before BIRCH, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Appellants Ignasio Sanchez and Santiago Sanchez pled guilty to and were convicted of one count of conspiracy to distribute and possess with intent to distribute methamphetamine and amphetamine, in violation of 21 U.S.C. 841, 846. Ignasio Sanchez appeals his 87-month sentence and Santiago Sanchez appeals his 108-month sentence.

Both Appellants assert that, in light of the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact that increases the penalty for an offense beyond the prescribed statutory maximum must be charged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. More specifically, appellants aver that by extension of Apprendi principles to this case, because their original indictment failed to allege the drug quantity in their offense, the judgment against them should be vacated.

The appellants also argue that the district court erred in enhancing their sentence under U.S.S.G. 2D1.1 for possession of a firearm in connection with a drug transaction. They contend that the government witness' testimony at their sentencing hearing did not connect any weapons to the drug conspiracy. Further, the appellants assert that, in light of Apprendi, the firearm enhancement must be proved beyond a reasonable doubt.

In addition, Ignasio Sanchez contends, for the first time on appeal, that his plea was unintelligent and involuntary because the drug quantity was not alleged in the indictment. He asserts that he should receive proper and adequate notice via a superseding indictment and be allowed to plead anew.

Santiago Sanchez likewise asserts, for the first time on appeal, that his plea is defective and void for lack of proper notice because the drug quantity was not alleged in the indictment.

Because both appellants raise substantially the same issues on appeal, we address their claims simultaneously.¹

BACKGROUND

A federal grand jury returned a single-count indictment against Ignasio, co-defendant Santiago, and four other co-defendants, charging them with conspiracy to distribute and possession with intent to distribute methamphetamine and amphetamine, in violation of 21 U.S.C. 841, 846. The quantity of methamphetamine and amphetamine involved in the offense was not alleged in the indictment. Ignasio filed a motion to dismiss the indictment for failing to include the drug quantity, that was subsequently denied by the district court. In a written plea agreement, Ignasio pled guilty to the single count of the indictment while reserving the right to appeal the district court's order denying Ignasio's motion to dismiss the indictment. Santiago pled guilty without a plea agreement and later adopted Ignasio's motion to dismiss. At the plea hearing, the district court advised both Ignasio and Santiago that their sentences would be based on the amount of drugs for which they were held responsible at sentencing.

Ignasio, Santiago and the government submitted written objections to the findings in the pre-sentence investigation reports (PSI). All parties objected to the quantity of the distributed drugs. Ignasio and Santiago also objected to the PSI's recommendation that the offense level should be increased two levels for possessing a firearm during the offense of conviction. At sentencing, appellants advised the district court that they agreed to be held accountable for two pounds of methamphetamine (which converts to a marijuana equivalency of 1,815.84 kilograms of marijuana) and twelve pounds of amphetamine (which converts to a marijuana equivalency of 1,087.2 kilograms of marijuana), totaling a marijuana equivalency of 2,903.04 kilograms. The district court then found them both accountable for a marijuana equivalency of 2,903.04 kilograms.

With regard to the PSI recommendation for a two-level firearm enhancement, the government presented the testimony of Kenneth Green. Green described various drug transactions he had with Ignasio and Santiago where Green delivered guns as partial payments for the drugs he received from them. Green also testified that, following his arrest, he took law enforcement authorities to a storage center where Green had stored four or five rifles and shotguns. After hearing Green's testimony, the district court found Green to be credible and determined that both appellants offense levels would be increased two levels for possessing a firearm during the charged drug offense. The court then granted Ignasio a two-level "role in the offense" reduction and a three-level downward adjustment for acceptance of responsibility. The court sentenced Ignasio to 87 months' imprisonment. Santiago received a 108-month sentence.

DISCUSSION

I.

Ignasio and Santiago Sanchez assert that in light of Apprendi, the district court erred in denying their motions to dismiss the indictment for failure to allege the drug quantity.² The applicability of Apprendi is a pure question of law that this Court reviews de novo. See United States v. Shepard, 235 F.3d 1295, 1296 (11th Cir. 2000).

In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proven beyond a reasonable doubt." Apprendi,120 S.Ct. at 2362-63. The indictment in this case charged appellants with violating 21 U.S.C. 846 by knowingly and intentionally conspiring to possess with intent to distribute an unspecified amount of methamphetamine and amphetamine. The offenses set out in 846, are punished under 841(b), which prescribes different maximum sentences depending on the type and quantity of the controlled substance involved. See 21 U.S.C. 846, 841(a), (b). For methamphetamine and amphetamine, 841(b)(1)(C) provides for a maximum sentence of twenty years, regardless of the quantity involved in the offense. See 21 U.S.C. 841(b)(1)(C). Section 841(b)(1)(B) provides for a sentence of not less than five years and not more than forty years, where at least five (5) grams of pure methamphetamine or at least 50 grams of a mixture containing a detectable amount of methamphetamine is involved. See 21 U.S.C. 841(b)(1)(B)(viii). Section 841(b)(1)(A) provides for a sentence of imprisonment ranging from not less than ten years to not more than life, where at least 50 grams of pure methamphetamine or at least 500 grams of a mixture containing methamphetamine is involved. See 21 U.S.C. 841(b)(1)(A)(viii).

We have held that, "drug quantity in sections 841(b)(1)(A) and 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt." United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000). Recently, we found, however, that although the defendant's indictment failed to allege drug quantity, there was no prejudice because the defendant was sentenced below the twenty-year maximum provided by 841(b)(1)(C). See Shepard, 235 F.3d at 1297. In the instant case, Ignasio was sentenced to 87 months, or 7 and 1/4 years, on the single-count conspiracy indictment. Santiago received a sentence of 108 months or 9 years. Given this Court's holding in Shepard, and because neither Sanchez was sentenced to more than the statutory maximum of twenty years as set forth in 841(b)(1)(C), they suffered no prejudice under Apprendi. Thus, the district court's error, if any, was harmless. See Fed.R.Crim.P. 52(a).

II.

Both appellants claim, for the first time on appeal, that their pleas were unintelligent and involuntary because the drug quantity was not alleged in the indictment. They contend that, had the district court notified them of the attributable amounts of controlled substances and the resulting sentencing ranges, they may have proceeded to trial. The Sanchez appellants aver that they should receive proper and adequate notice via a superseding indictment and be allowed to plead anew. The government responds that neither appellants' substantial rights were affected because neither challenged the government's factual basis for the plea. In his reply brief, Ignasio asserts that it is not clear whether the absence of drug quantity in the indictment results in a voluntary and knowing plea.

A court accepting a plea of guilty must comply with Federal Rule of Criminal Procedure 11, and in particular, address three "core concerns" by ensuring that: (1) the guilty plea is voluntary, (2) the defendant understands the nature of the charges, and (3) the defendant understands the consequences of his plea. See United States v. Bell, 776 F.2d 965, 968 (11th Cir. 1985)(per curiam). "Variance from the requirements of Rule 11 should be disregarded unless substantial rights are affected." United States v. McCarty, 99 F.3d 383, 386 (11th Cir. 1996)(per curiam) (citing Fed.R.Crim.P. 11(h)). Furthermore, when a defendant fails to object to the district court's noncompliance with Rule 11, this Court reviews the issue for plain error only. See United States v. Humphrey, 164 F.3d 585, 587 (11th Cir. 1999). Plain error is that which is obvious and prejudicial, affecting substantial rights of the defendant. See United States v. Ramsdale, 61 F.3d 825, 832 (11th Cir. 1995)(citation omitted).

As stated above, in light of Apprendi, drug quantity is an element of the offense that must be charged in the indictment. See Rogers, 228 F.3d at 1324. Here, the plea colloquy was technically...