U.S. v. Santiago

• Decision Date: 01 August 2000
• Docket Number: DEFENDANT-APPELLANT,Docket No. 98-1674
• Citation: 268 F.3d 151
• Court: U.S. Court of Appeals — Second Circuit
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. RAMON E. SANTIAGO, AKA "YOYO",

Page 151

268 F.3d 151 (2nd Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. RAMON E. SANTIAGO, AKA "YOYO", DEFENDANT-APPELLANT.

Docket No. 98-1674

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: May 18, 2001

Decided October 15, 2001

Appeal from a judgment of the United States District Court for the District of Connecticut (Alan H. Nevas, Judge) convicting defendant after a guilty plea of one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) and sentencing defendant to fifteen years' imprisonment under 18 U.S.C. § 924(e). We hold that the predicate facts for sentence enhancement under § 924(e) - namely, three prior violent felony or serious drug offense convictions committed on occasions different from one another - are not elements of an aggravated offense which must be charged in the indictment under Apprendi v. New Jersey, 530 U.S. 466 (2000). Affirmed.

Edward S. Zas, The Legal Aid Society, Federal Defender Division Appeals Bureau, New York, Ny, for defendant-appellant.

Robert M. Appleton, Assistant United States Attorney, Bridgeport, Ct, for Stephen C. Robinson, United States Attorney for the District of Connecticut, for appellee.

Before: Feinberg, Leval, and Sotomayor, Circuit Judges.

Sotomayor, Circuit Judge.

Defendant-appellant Ramon Santiago appeals from a judgment of the United States District Court for the District of Connecticut (Alan H. Nevas, Judge) convicting him of one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).¹ Having found defendant to have three serious prior convictions, each arising from offenses committed on different occasions, the district judge sentenced defendant principally to fifteen years' imprisonment pursuant to 18 U.S.C. § 924(e).² Defendant argues on appeal that, under the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the predicate facts supporting sentencing enhancement under § 924(e) must be considered elements of a separate, aggravated offense and must be charged in the indictment and found by a jury beyond a reasonable doubt. Because the indictment in this case failed to charge these facts, defendant argues that we must vacate and remand for resentencing. We disagree and affirm the judgment of the district court.

BACKGROUND

Defendant was a member of the Latin Kings, a Connecticut-based criminal organization engaged in narcotics trafficking. On January 20, 1997, a Bridgeport police officer saw defendant running and firing a handgun four or five times. He called for back-up assistance, and the police later apprehended defendant and recovered a semi-automatic firearm nearby. Officers also recovered two.25-caliber shells near where defendant had fired the gun. Witnesses claim that they saw defendant begin firing the gun as a narcotics transaction turned violent. During his plea allocution, defendant admitted that he was a previously convicted felon and had, on this occasion, been in possession of a firearm.

On June 15, 1998, defendant agreed to plead guilty "to count One of the indictment, which count charges him with the unlawful possession of a firearm, in violation of Title 18 U.S.C. §§ 922(g) and 924(e)"³ and entered a plea of guilty the same day. At the sentencing hearing on October 27, 1998, the district court sentenced defendant to § 924(e)'s mandatory minimum term of imprisonment of fifteen years. Had defendant not been found to have had three prior convictions committed on separate occasions under § 924(e), the maximum prison term permitted under § 922(g) would have been ten years.⁴ See 18 U.S.C. § 924(a)(2).

On appeal, defendant claims that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the statutory requirement of "three previous convictions... for a violent felony or a serious drug offense, or both, committed on occasions different from one another," 18 U.S.C. § 924(e)(1), is not a sentencing factor which may be determined by a judge, but rather is an element of a separate, greater offense which must be charged in an indictment and found by a jury beyond a reasonable doubt. Defendant argues that the exception left open in Apprendi for the "fact of a prior conviction" as under the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), does not cover the separate requirement under § 924(e) that convictions be "committed on occasions different from one another." Moreover, defendant claims that even if so, Almendarez-Torres itself has been "fatally undermined" by Apprendi and is no longer good law. Defendant maintains that because the indictment did not allege that defendant had been convicted of three qualifying crimes "committed on occasions different from one another," his fifteen-year prison sentence exceeds the statutory maximum for the crime charged and must be vacated. We disagree.

DISCUSSION

In 1998, the Supreme Court held in Almendarez-Torres that 8 U.S.C. § 1326(b)(2), which enhances the penalty for the illegal return of an alien to the United States if his or her initial removal was subsequent to an aggravated felony conviction, does not describe a separate crime, such that the fact of the prior felony conviction must be charged in an indictment and proven to a jury beyond a reasonable doubt; rather, it describes a penalty provision authorizing a court to increase the sentence for a recidivist.⁵ Almendarez-Torres, 523 U.S. at 228-35. Moreover, the Court said, Congress violated no constitutional constraints in defining recidivism as a sentencing factor rather than as an element of a separate crime. Id. at 247.

In United States v. Baldwin, 186 F.3d 99 (2d Cir. 1999), this Court applied Almendarez-Torres to the statute at issue in the instant appeal, holding that the requirement of three prior felony convictions under 18 U.S.C. § 924(e) is a sentencing factor to be considered by the judge, not a separate element or offense requiring a jury determination. We explained that "[w]hatever considerations may distinguish the class of offense elements, on the one hand, from the class of sentencing factors, on the other, it is clear that the factor at issue in this case -recidivism - is relevant only to sentencing." Id. at 101. We concluded that Congress enacted Section 924(e) as "a mechanism for sentence enhancement, rather than as a provision defining a free-standing offense," and we saw no constitutional impediment to Congress so defining the crime. Id. We are bound by Baldwin unless it has been called into question by an intervening Supreme Court decision or by one of this Court sitting in banc. See BankBoston, N.A. v. Sokolowski, 205 F.3d 532, 534-35 (2d Cir. 2000) (stating that "[t]his Court is bound by a decision of a prior panel unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court en banc") (internal quotation marks omitted).

Defendant contends that Apprendi is just such an intervening case, in which the Supreme Court held that, as a matter of constitutional due process, "[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 a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Defendant claims that because the indictment did not specifically identify three prior convictions committed on different occasions, the district court erred when it increased his sentence, pursuant to Section 924(e), above the ten-year statutory maximum prescribed in § 924(a)(2). As already noted, however, Apprendi explicitly carved out an exception for "the fact of a prior conviction." Id. By so doing, the Supreme Court did not need to reach the question of whether to overrule Almendarez-Torres. See id. at 489-90. As we have previously commented, see United States v. Latorre-Benavides, 241 F.3d 262, 263-64 (2d Cir. 2001), Almendarez-Torres remains good law, at least for now,⁶ and Baldwin, which relied on Almendarez-Torres, will remain so until the Supreme Court rules otherwise. We thus continue to be bound by and hereby reaffirm Baldwin, which held that under Section 924(e) the fact of prior convictions is not a separate element of the crime but "is relevant only to sentencing." Baldwin, 186 F.3d at 101.

Defendant also claims that Apprendi's recidivism exception does not encompass the issue of whether prior convictions arose from offenses "committed on occasions different from one another" - arguing that even if Almendarez-Torres and Baldwin are still good law, they are not on point here, because even if Apprendi permits judges to determine the fact of prior convictions, it reserves the "different occasions" issue for a jury. While we agree that Baldwin does not completely dispose of this argument, we disagree with defendant's proposed rule.⁷

First, we are not persuaded by the defendant's contention that the separateness of the prior convictions can be distinguished from the mere fact of their existence because the former is often "controversial" while the latter is not. While the Almendarez-Torres exception to the Apprendi rule - that judges may find "the fact of a prior conviction" for sentencing purposes - typically involves a relatively uncontested record, this is by no means always the case. The determination of "the fact of a prior conviction" implicitly entails many subsidiary findings, not the least of which is that the defendant being sentenced is the same defendant who previously was convicted of those prior offenses, a fact that could be quite controversial indeed. Determination of this question would not necessarily come with the "procedural safeguards" noted in Apprendi. See Apprendi, 530 U.S. at 488. Thus, the separateness of the convictions is not a fact which is different in kind from the types of facts already left to the sentencing judge by Almendarez-Torres and Apprendi - only, at most, one which is somewhat more likely...