U.S. v. Vazquez

Decision Date09 October 2001
Docket NumberNo. 99-3845,99-3845
Citation2001 WL 1188250,271 F.3d 93
CourtU.S. Court of Appeals — Third Circuit

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271 F.3d 93 (3rd Cir. 2001)
No. 99-3845
Originally Argued December 15, 2000
Argued En Banc May 23, 2001
October 9, 2001

On Appeal from the United States District Court for the Middle District of Pennsylvania District Judge: Sylvia H. Rambo (D.C. Crim. No. 98-00086-01)

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Copyrighted Material Omitted

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Martin C. Carlson, United States Attorney, Christy H. Fawcett, Assistant United States Attorney, Office of United States Attorney, Federal Building 228 Walnut Street P.O. Box 11754 Harrisburg, Pennsylvania 17108, Michael R. Dreeban (argued), Deputy Solicitor General, U.S. Department of Justice, Nina Goodman, Michael A. Rotker, Criminal Division, U.S. Department of Justice, 601 D Street N.W., room 6206 Washington, D.C. 20530, Attorneys for Appellee

Peter Goldberger (argued), Pamela A. Wilk, James H. Feldman, Jr., 50 Rittenhouse Place Ardmore, Pennsylvania 19003-2276, Attorneys for Appellant

Shelley Stark, Federal Public Defender, Lisa B. Freeland (argued), Assistant Federal Public Defender, 415 Convention Tower 960 Penn Avenue Pittsburgh, Pennsylvania 15222, Attorneys for Amicus Curiae Leroy Campbell

Lisa Kemler, 108 N. Alfred Street Alexandria, Virginia 22315, Attorney for Amicus Curiae National Association of Criminal Defense Lawyers

Mary Price, General Counsel, 1612 K Street N.W., suite 1400 Washington, D.C. 20006, Attorney for Amicus Curiae Families Against Mandatory Minimums Foundation

Clayton A. Sweeney, Jr., 1528 Walnut Street, suite 815 Philadelphia, Pennsylvania 19102-3604, Attorney for Amici Curiae, National Association of Criminal, Defense Lawyers, Pennsylvania, Association of Criminal Defense Lawyers and Families Against Mandatory Minimums Foundation

Before: Becker, Chief Judge, Sloviter, Mansmann, Scirica, Nygaard, Alito, Roth, McKEE, Rendell, Barry, Ambro, Fuentes, and Garth, Circuit Judges.

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Fuentes, Circuit Judge.

This appeal requires us to apply the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), to a drug conspiracy sentence. At sentencing, the trial court, adhering to established law and custom, itself decided the issue of drug quantity under a preponderance of the evidence standard. Based largely on this finding, the court sentenced appellant, Alex Vazquez, to a prison term of 292 months (24 years and 4 months), which exceeded, by over 4 years, the statutory maximum authorized by the jury's factual findings. Subsequently, the Supreme Court held in Apprendi that a criminal defendant's constitutional rights are violated when his prescribed statutory maximum penalties are increased by any fact, other than a prior conviction, that a jury does not find beyond a reasonable doubt. Id. at 490. Vazquez now challenges his sentence contending that, because the court did not submit the issue of drug quantity to the jury for determination, he must be resentenced in accordance with the default 20-year statutory maximum sentence that applies to cocaine offenses of unspecified drug quantity.

Vazquez did not contest the drug quantity evidence at any stage of the proceedings. As a result, our review is for plain error. We conclude that Vazquez's sentence violated Apprendi, and therefore, the failure to submit drug quantity to the jury, and the imposition of a prison term in excess of 20 years, was erroneous. Nonetheless, because we remain confident that a rational jury would have found, beyond a reasonable doubt, the drug quantities that the judge found, we conclude that Vazquez is not entitled to plain error relief and we will therefore affirm his sentence.1


The relevant facts are largely undisputed. On February 27, 1998, after a lengthy investigation, law enforcement authorities seized a quantity of powder cocaine and crack cocaine from a rooming house in Columbia, Pennsylvania. Vazquez's fingerprint was on one of the bags in which the cocaine had been stored.

The next day, officers executed a search warrant at Vazquez's residence. There, police seized a digital scale from Vazquez's bedroom, a key to the front door of the rooming house, and a stolen firearm. Thereafter, state law enforcement authorities and agents from the Federal Bureau of Investigation ("FBI") interviewed a number of Vazquez's drug customers, including James Freeland, Brian Holmes, and Wayne Rice. All three gave statements implicating Vazquez and Francisco Algarin in a drug dealing operation. Algarin was identified as a "runner" for the organization.

On June 9, 1998, a grand jury for the Middle District of Pennsylvania issued an indictment charging Vazquez with conspiracy to possess and distribute "more than 5 kilos of cocaine" in violation of 21 U.S.C. SS 846 and 841, several related counts of obstruction of justice (including one under 18 U.S.C. S 1503), and two counts of witness tampering. The indictment specifically charged a drug conspiracy involving

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"cocaine." Although it did not reference cocaine base or crack cocaine, it listed the following overt act: "stor[ing] approximately 859 grams of `crack' cocaine (cocaine base) and approximately 992 grams of cocaine powder in Room #2, 647 Union Street, Columbia, PA."

The trial evidence, which included testimony based on a forensic lab analysis, established that police seized 991 grams of powder cocaine and 859 grams of crack cocaine from the Columbia rooming house.2 According to the testimony, Vazquez had given the drugs to his co-conspirator, Algarin, for storage at the rooming house, and Vazquez's fingerprint was found on one of the bags in which the cocaine was stored. Also, a key to the front door of the rooming house was found on Vazquez's person. Vazquez raised no objection to the testimony respecting drug quantity, and he presented no affirmative evidence at any time challenging the Government's evidence of drug quantity. Additionally, neither the Government nor Vazquez requested an instruction requiring the jury to find the quantity of drugs involved in his conspiracy offense, and the court gave no such instruction. The District Court's instructions concerning the drug conspiracy only required the jury to find that Vazquez conspired "to possess and distribute cocaine." Following deliberations, the jury convicted Vazquez of conspiracy to possess and distribute cocaine, as well as obstruction of justice. However, the jury acquitted Vazquez of a conspiracy to obstruct justice charge. In addition, the jury was unable to reach verdicts on the two witness tampering counts; the District Court declared a hung jury as to those counts.

At the sentencing hearing, the District Court adopted the factual findings and sentencing recommendations in the presentence report. The court determined, without objection and under a preponderance of the evidence standard, that, based on the trial evidence and the presentence report, Vazquez had been involved with 992 grams of powder cocaine and 859 grams of crack cocaine. The court therefore assigned Vazquez a base offense level of 36 in accordance with U.S.S.G. S 2D1.1's Drug Quantity Table. The District Court then applied two separate 2-level upward adjustments, the first for being an organizer/leader under U.S.S.G. S 3B1.1(c), and the second for attempted obstruction of justice under U.S.S.G. S 3C1.1. An adjusted offense level of 40 and a criminal history category of I resulted in a sentencing range of 292 to 365 months. The District Court ultimately sentenced Vazquez at the bottom of that range, the guideline minimum of 292 months, for the drug conspiracy, and to a concurrent term of 120 months for the obstruction of justice charge. The court also imposed a 5-year supervised release term on the drug conspiracy count and a concurrent 3-year supervised release term on the obstruction of justice charge. With regard to the drug conspiracy, the judgment of conviction stated that Vazquez was sentenced for a conspiracy in violation of 21 U.S.C. S 846, with the object of distributing more than 5 kilograms of cocaine in violation of 21 U.S.C. S 841(b)(1)(A).3

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We begin by explaining why Apprendi was violated in Vazquez's case. Thereafter, because Vazquez did not contest the evidence of drug quantity before the District Court, we will analyze the parties' contentions under the plain error standard.


Vazquez was indicted and tried for conspiracy to possess and distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. SS 846 and 841. To explain the relationship between Apprendi and S 841, we will briefly review the Apprendi decision, and we will then detail how Apprendi was violated in this case.

In Apprendi, the defendant had fired several shots into the home of an African-American family that had recently moved into a New Jersey neighborhood. 530 U.S. at 469. After his arrest, he reportedly stated that he did not know the occupants personally but did not want African-Americans in his neighborhood. Id. at 469. He later, however, denied making such a statement. Id. at 469, 471. He pled guilty in state court to two counts of second-degree possession of a firearm for an unlawful purpose, each of which carried a sentencing range of 5 to 10 years. Id. at 469-70. Subsequently, the prosecutor filed a motion to enhance the defendant's sentence pursuant to New Jersey's hate crime statute, which authorized an increased punishment for first-degree offenses based upon a trial judge's finding, by a preponderance of the evidence, that the defendant had committed the crime with a purpose to intimidate a person or group because of race. Id. at 470, 491-92 (discussing N.J. Stat. Ann. S 2C:44-3(e) (West Supp. 2000)). After a contested evidentiary hearing, the trial court found, by a preponderance of the evidence, that the shooting was racially motivated and imposed a 12-year sentence on one of the second-degree counts. Id. at 471.


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