U.S. v. Velasco-Heredia

• Citation: 319 F.3d 1080
• Decision Date: 21 January 2003
• Docket Number: No. 00-50107.,00-50107.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturo Daniel VELASCO-HEREDIA, aka Arturo Velasco-Heredia, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

319 F.3d 1080

UNITED STATES of America, Plaintiff-Appellee, v. Arturo Daniel VELASCO-HEREDIA, aka Arturo Velasco-Heredia, Defendant-Appellant.

No. 00-50107.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 10, 2001.

Filed January 21, 2003.

Debra Ann DiIorio, DiIorio and Hall, APC, San Diego, CA, for defendant-appellant.

Roger W. Haines, Jr., United States Attorney's Office, San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding, D.C. No. CR-99-01932-03-IEG.

Before TROTT, THOMAS, and BERZON, Circuit Judges.

ORDER

Further action on the petition for rehearing was deferred until the final disposition of U.S. v. Buckland, No. 99-30285 was entered. With the filing of the new opinion in this case the petition for rehearing is rendered MOOT.

OPINION

TROTT, Circuit Judge.

This case requires us to assess the effect of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as refined by Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), on the prosecution of a federal drug case conducted during the embryonic stages of the sentencing revolution occasioned by Apprendi. Specifically, we must decide whether the district judge erred after a bench trial by employing over objection the preponderance of evidence standard of proof to determine the amount of marijuana attributable for sentencing purposes to Defendant-Appellant Arturo Velasco-Heredia ("Velasco-Heredia"), and, if the judge did err, whether the error was harmless beyond a reasonable doubt.

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and for the reasons explained below, we affirm Velasco-Heredia's conviction but reverse his sentence.

I Background

A. Factual History

During the last few weeks of May 1999, the United States Customs Service ("Customs") conducted surveillance of a suspected marijuana "stash house" at 614 Alice Street in San Diego, California. One of the vehicles spotted at the 614 Alice Street home was a Mitsubishi pickup truck registered to Velasco-Heredia. On June 4, 1999, Customs inspectors intercepted Velasco-Heredia driving this pickup from Mexico into the United States at the San Ysidro, California Port of Entry. The inspectors searched the pickup truck and found a large amount of marijuana hidden inside. Nevertheless, they did not alert Velasco-Heredia to their find, and let him enter the United States in order to follow him. Velasco-Heredia soon realized, however, that he was being tailed, and he undertook evasive maneuvers in an attempt to lose his pursuers, at which point the Customs agents stopped and arrested him. They recovered 17.59 kilograms of marijuana from the pickup.

Around the same time, other Customs agents approached the suspected marijuana stash house at 614 Alice Street in San Diego where they had seen Velasco-Heredia's truck. Two people, Jesus Hermosillo ("Hermosillo") and Arcelia Castro ("Castro"), were present. Hermosillo claimed to own the house and consented to searches of it and of an adjoining storage shed. Agents found various items of evidence suggesting marijuana use and distribution, the most important to this case being 66.1 pounds of "marijuana wrappings."

Hermosillo and Castro waived their Miranda rights and answered agents' questions. Both admitted that a drug smuggling and distribution operation existed, that the 614 Alice Street stash house was a drop-off point for the drugs, and that a man named Javier Gomez-Sandoval ("Gomez-Sandoval") directed the operation. Further, both Hermosillo and Castro implicated Velasco-Heredia in the smuggling operation. Hermosillo explained that "Velasco has delivered most of the marijuana," and Castro stated that she had seen Velasco-Heredia and his Mitsubishi truck at the stash house on at least four occasions during the past month.

Customs agents also stopped a man walking away from the stash house. The agents identified him as Javier Gomez-Sandoval, the man Hermosillo and Castro had fingered as the ringleader of the drug operation.

B. Procedural History

All four persons — Gomez-Sandoval, Hermosillo, Castro, and Velasco-Heredia — were arrested and charged in a four count indictment with conspiracy and substantive marijuana violations. Gomez-Sandoval was released on bond, failed to appear, and remains a fugitive. Castro pleaded guilty to misprision of a felony and was sentenced to fifteen months in prison. Hermosillo pleaded guilty to Count Three of the indictment, which charged conspiracy, and was sentenced to sixty months in prison.

Velasco-Heredia initially pleaded guilty to Count Three, the conspiracy count. All parties understood that in consideration of his plea, the remaining counts would be dismissed. During the guilty plea colloquy, however, defense counsel and the prosecutor disagreed about the amount of drugs attributable to Velasco-Heredia as a co-conspirator. According to the defense, Velasco-Heredia was responsible for only the 17.59 kilograms of marijuana found in his truck when he was arrested. According to the government, however, Velasco-Heredia was responsible for more than 285 kilograms of marijuana. The government's number was calculated on the basis of: (1) the 66.1 pounds of marijuana wrappings recovered from the stash house, which would have enclosed approximately 269 kilograms of marijuana, and (2) the 17.59 kilograms of marijuana that had been found in Velasco-Heredia's pickup truck. Adding these amounts together, the government asserted that Velasco-Heredia was responsible for over 285 kilograms of marijuana. The severity of Velasco-Heredia's sentence, of course, would depend on whether the court would accept the greater or the lesser amount.

The district judge informed Velasco-Heredia that he could plead guilty to conspiracy to distribute marijuana, and that she would determine the amount of marijuana attributable to him during the sentencing phase. With this understanding, he entered his plea.

Soon thereafter, the United States Supreme Court decided Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the Court said in a footnote that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 243 n. 6, 119 S.Ct. 1215. Armed with the Jones footnote, counsel for Velasco-Heredia went back to the district court and argued that the government must prove the quantity of drugs attributable to him beyond a reasonable doubt, not merely by a preponderance of evidence. Judge Gonzalez disagreed with Velasco-Heredia that Jones, which was not a controlled substance case, required her to find the amount of drugs beyond a reasonable doubt, but in an admirable display of caution, she allowed Velasco-Heredia to withdraw his guilty plea in order to preserve his argument for appeal.

Velasco-Heredia then waived for all purposes his right to a trial by jury, and the parties proceeded with a bench trial to be decided based upon stipulated facts. In the written stipulation, which the government signed, Velasco-Heredia admitted he had agreed with another person to pick up 17.59 kilograms of marijuana in Mexico, drive the drugs into the United States, and leave them at an unspecified location to be retrieved by another person. The stipulation did not address any additional amount of marijuana. After the stipulation was presented, Velasco-Heredia made a motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29 ("Rule 29"), claiming that the government failed to prove the quantity of drugs for which he was responsible. See FED. R. CRIM. P. 29. Judge Gonzalez denied the Rule 29 motion, concluding that quantity of drugs is "not an element of the offense of conspiracy, that the elements are the agreement and knowingly participating in the agreement and knowing the object of the agreement or conspiracy." She concluded that the government had proved these elements of conspiracy as charged in Count Three of the indictment — which did not specify a quantity of drugs — beyond a reasonable doubt. Accordingly, Judge Gonzalez found Velasco-Heredia guilty of one count of conspiring to distribute an unspecified quantity of marijuana in violation of 21 U.S.C. §§ 841(a) and 846.¹ We note that the only evidence in the record of an amount of marijuana supporting the conviction was 17.59 kilograms.

The court then moved to sentencing. Because Velasco-Heredia had been convicted of conspiracy, the court determined his sentence pursuant to 21 U.S.C. § 846 as though he had been convicted of "the offense, the commission of which was the object of ... the conspiracy." During sentencing, Judge Gonzalez, employed the preponderance of evidence standard and found, based on information submitted to her, that Velasco-Heredia was responsible for 285 kilograms of marijuana. Because this finding made Velasco-Heredia responsible for between 100 kg and 1000 kg of marijuana, the court concluded that he was subject to the increased penalty provisions of 21 U.S.C. § 841(b)(1)(B)(vii), i.e., five to forty years, including the statutory minimums of five years in prison and four years of supervised release. Judge Gonzalez acknowledged in her reasoning that her calculations under the United States Sentencing Guidelines produced a sentencing range from thirty-seven to forty-six months. However, because the high end of that guideline range (forty-six months) was below the statutory minimum of sixty months prescribed by 21 U.S.C. § 841(b)(1)(B), she determined that the statutory minimum for that section trumped the Guidelines. See U.S.S.G. § 5G1.1(b) ("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence...