U.S. v. Zillgitt

• Decision Date: 04 April 2002
• Docket Number: Docket No. 00-1421.
• Citation: 286 F.3d 128
• Parties: UNITED STATES of America, Appellee, v. James ZILLGITT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

286 F.3d 128

UNITED STATES of America, Appellee, v. James ZILLGITT, Defendant-Appellant.

Docket No. 00-1421.

United States Court of Appeals, Second Circuit.

Argued November 6, 2001.

Decided April 4, 2002.

COPYRIGHT MATERIAL OMITTED

David G. Secular, Assistant Federal Public Defender, Syracuse, NY (Alexander Bunin, Federal Public Defender, Syracuse NY, on the brief), for Defendant-Appellant.

Barbara D. Cottrell, Assistant United States Attorney, Albany, NY (Joseph A. Pavone, United States Attorney for the Northern District of New York, Syracuse, NY, on the brief), for Appellee.

Before: MINER, McLAUGHLIN, and STRAUB, Circuit Judges.

MINER, Circuit Judge.

Defendant-appellant James Zillgitt appeals from a judgment entered in the United States District Court for the Northern District of New York (Scullin, J.), following a jury trial, convicting him of one count of conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Pursuant to the United States Sentencing Guidelines (the "Guidelines"), the district court set Zillgitt's base offense level at 28 as a result of its finding by a preponderance of the evidence that the drug conspiracy involved a total of 3.25 kilograms of cocaine. This base offense level, coupled with Zillgitt's Criminal History Category III, yielded a sentencing range of 97 to 121 months' imprisonment. The district court sentenced Zillgitt to 109 months' imprisonment.

Zillgitt argues on appeal that his sentence is unconstitutional on two grounds. First, he claims that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that "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." Id. at 490, 120 S.Ct. 2348. Zillgitt contends that because neither the type nor the quantity of the controlled substances charged in Count One of the indictment were submitted to the jury and proved beyond a reasonable doubt, his sentence is unconstitutional under Apprendi.¹

Second, Zillgitt argues that his sentence is unconstitutional under United States v. Barnes, 158 F.3d 662 (2d Cir.1998), in which we held that where a jury returns a general guilty verdict on a single count of conspiracy involving multiple controlled substances, the district court must sentence the defendant as if convicted of a conspiracy involving only the substance that carries the lowest statutory sentencing range. Zillgitt contends, following Barnes, that the district court was required to sentence him under 21 U.S.C. § 841(b)(1)(D), the penalty provision applicable to a conspiracy to distribute an indeterminate amount of marijuana, which carries a maximum term of imprisonment of five years, or sixty months. We agree that Zillgitt's sentence was unconstitutional under Barnes and the cases upon which Barnes relied.

Because Zillgitt did not raise these arguments either at trial or at sentencing, we review his claims for plain error. See Fed.R.Civ.P. 52(b); United States v. Guevara, 277 F.3d 111, 123 (2d Cir.2001); United States v. Thomas, 274 F.3d 655, 666 (2d Cir.2001) (en banc). Applying plain error review, we hold that the district court committed error, that the error was plain, that the error affected Zillgitt's substantial rights, and that the error seriously affected the fairness and the public reputation of the judicial proceedings.

For the reasons that follow, we withhold judgment on Zillgitt's conviction for thirty days. If the government consents to a resentencing under 21 U.S.C. § 841(b)(1)(D), the statutory provision applicable here to a marijuana-only conspiracy, we will affirm the conviction. If the government does not consent, we will vacate the conviction and remand for a new trial. Should the government elect to retry Zillgitt, any sentence imposed for the crimes charged under Count One of the original indictment will be reduced by the amount of time he has already served. Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).

BACKGROUND

On December 10, 1993, Zillgitt was charged in a ten-count indictment with various violations of 21 U.S.C. Count One charged conspiracy to possess with intent to distribute and to distribute a quantity of cocaine, a Schedule II controlled substance, and a quantity of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The government alleged that the conspiracy started on approximately January 1, 1988, and continued through the time of the indictment. Counts Two, Four, and Six charged Zillgitt with possession with intent to distribute a quantity of cocaine on three separate dates, in violation of 21 U.S.C. § 841(a)(1). Counts Three, Five, and Seven charged distribution of a quantity of cocaine on three separate dates, in violation of 21 U.S.C. § 841(a)(1). Counts Eight and Nine charged, respectively, possession with intent to distribute, and distribution of, a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2. Count Ten, a forfeiture count, charged that Zillgitt and his co-defendants derived proceeds obtained directly or indirectly as a result of their criminal activity in the amount of approximately $100,000, in violation of 21 U.S.C. § 853.

Following trial, the jury returned a general guilty verdict on October 6, 1994 against Zillgitt on Count One, the conspiracy count, and acquitted him on the eight substantive counts. Zillgitt failed at trial to object to the jury charge, or to request a special verdict requiring the jury to determine the type or quantity of controlled substance underlying the conspiracy charge. He likewise failed to raise at sentencing the arguments he now advances on appeal.

At Zillgitt's January 26, 1995 sentencing, the trial court found, by a preponderance of the evidence, that he had conspired to distribute a total of 3.25 kilograms of cocaine. This finding, together with Zillgitt's Criminal History Category III, resulted in a base offense level of 28, which corresponded to a sentencing range of between 97 and 121 months' imprisonment. Zillgitt was sentenced to 109 months in prison. The court also ordered that Zillgitt, jointly and severally with his co-defendants, pay $276,000 pursuant to the forfeiture count. On May 3, 2000, Zillgitt filed a notice of appeal.²

Zillgitt subsequently filed a motion for bail pending appeal. On July 28, 2000, the district court denied Zillgitt's motion. In order to succeed on his motion Zillgitt was required to establish that: (1) he was not likely to flee or pose a danger to the community; (2) his appeal was not for the purpose of delay; (3) his appeal raised a substantial question of law or fact likely to result in: (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence less than the total of the time already served plus the expected duration of the appeal process; and (4) there were "exceptional circumstances" warranting release. 18 U.S.C. §§ 3142(f)(1), 3143(b), 3145(c).

In support of his motion, Zillgitt for the first time argued that under both our decision in Barnes, 158 F.3d 662, and the Supreme Court's decision in Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, he was likely to prevail on appeal because "by removing the type and quantity of narcotics as factors to be determined by the jury, the trial court unconstitutionally removed from the jury the assessment of facts that increase the prescribed range of punishment to which [he] was exposed." The district court disagreed, holding that "the failure of the trial court to differentiate between cocaine and marijuana within the jury instructions or to submit a special verdict form to the jury is harmless error."

The court based this conclusion on its finding that it could locate only one instance in the trial transcript that connected Zillgitt with marijuana, and that the remainder of the lengthy testimony offered by witnesses related to Zillgitt's involvement in a cocaine conspiracy. The court found, as a result, that the jury would have had no basis to find that Zillgitt participated in a marijuana conspiracy rather than a cocaine conspiracy. Having concluded that Zillgitt failed to establish that his appeal raised a substantial question of law or fact as required under the statute, the court did not address the remaining three requirements.

Zillgitt appealed the district court's denial of his motion and, by order dated August 20, 2001, we concluded that Zillgitt's appeal did, in fact, raise substantial questions of law concerning the validity of his sentence, and remanded the motion to the district court for further findings as to the other three prongs Zillgitt was required to meet. On remand, the district court determined that Zillgitt satisfied the three remaining prongs, and on December 20, 2001, we granted Zillgitt's motion for bail pending appeal and instructed the district court to set the terms and conditions of his release.

DISCUSSION

I. The Sentence on Count One

Zillgitt argues that his sentence is unconstitutional under United States v. Barnes, 158 F.3d 662 (2d Cir.1998), in which we held that where a jury returns a general guilty verdict on a single count of conspiracy involving multiple controlled substances, the district court must sentence the defendant as if convicted of a conspiracy involving only the drug that triggers the lowest statutory sentencing range. Our holding in Barnes relied primarily on our earlier decision in United States v. Orozco-Prada, 732 F.2d 1076 (2d Cir.1984), where we reached the same conclusion.

A. United States v. Orozco-Prada

In Orozco-Prada, the defendant was charged in a seven-count indictment with conspiracy to distribute and to possess with intent to distribute marijuana, a Schedule I controlled substance, and...