United States v. Aguayo-Delgado

• Decision Date: 10 May 2000
• Docket Number: AGUAYO-DELGAD,No. 99-4098,APPELLANT,99-4098
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. FABIAN Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 926

220 F.3d 926 (8th Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. FABIAN AGUAYO-DELGADO, APPELLANT.

No. 99-4098

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 10, 2000

Filed: July 18, 2000

Appeal from the United States District Court for the Southern District of Iowa. [Copyrighted Material Omitted] Before Bowman, Floyd R. Gibson, ¹ and Loken, Circuit Judges.

Bowman, Circuit Judge.

A grand jury indicted Fabian Aguayo-Delgado on two counts. The first count of the indictment reads as follows:

From on or about November, 1997, and continuing to on or about April, 1998, the exact dates to the Grand Jury unknown, in the Southern District of Iowa and elsewhere, two or more persons, known and unknown to the Grand Jury, including but not limited to the defendant, FABIAN AGUAYO-DELGADO, a/k/a Hugo Ruiz, a/k/a Coco, did conspire to commit an offense against the United States, namely to knowingly and intentionally distribute methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).

This is a violation of Title 21, United States Code, Section 846.

The second count charged a related firearms offense, namely possessing a firearm in relation to a drug offense. See 18 U.S.C. 924(c) (1994 & Supp. IV 1998). Aguayo-Delgado was tried before a jury. The jury instructions specified that in order to return a conviction on the first count, the jury must find that Aguayo-Delgado conspired to distribute methamphetamine, but the instructions did not make any reference to drug quantity. After deliberations, the jury convicted him on the first count and acquitted him on the second.

The District Court ² calculated Aguayo-Delgado's sentence according to the sentencing guidelines. Based on trial testimony, the U.S. Probation Office's presentence report figured the amount of drugs ascribable to Aguayo-Delgado. The report specifically found that Aguayo-Delago was responsible for 17.68 kilograms of methamphetamine and 1 kilogram of cocaine. The methamphetamine amount alone would qualify Aguayo-Delgado for a base offense level of 38 under the guidelines, so the Probation Office did not make further calculations, although there was evidence of yet more drugs for which Aguayo-Delgado might be responsible. The highest possible base offensive level for drug distribution is 38 except in specific circumstances not found here. See U.S. Sentencing Guidelines Manual 2D1.1 (1998).

At his sentencing hearing, Aguayo-Delgado disputed the presentence report's drug quantity calculation. The government conceded that the trial testimony relied upon in the presentence report was inconsistent at points, that the testimony may have involved double-counting, and that the amounts to which the witnesses testified were based on estimates and averages. The District Court ultimately made a finding of a quantity of methamphetamine of "more than 3 but under 15 kilograms," which mandated a base offense level of 36. The District Court also found that Aguayo-Delgado had possessed a gun during his drug-dealing activity and therefore applied a two-level enhancement. See U.S.S.G. 2D1.1(b)(1). While noting that the jury had acquitted Aguayo-Delgado on a very similar substantive offense, the District Court found that the record supported the enhancement under the less rigorous preponderance standard applicable at sentencing. The District Court also applied a one-level downward departure because, as a Mexican citizen, Aguayo-Delgado would be deported immediately upon completing his sentence. Thus, the District Court found the offense level to be 37.

With a criminal history category of 2 and an offense level of 37, the sentencing guidelines normally allow for a sentencing range of 235 to 293 months imprisonment. As required, the District Court also looked to the federal statutes that describe drug sentencing, finding an applicable mandatory minimum in 21 U.S.C. 841(b)(1)(A) (1994 & Supp. IV 1998), which, because of the drug quantity found by the judge and because of Aguayo-Delgado's prior felony drug conviction, requires at least twenty years' imprisonment and ten years' supervised release. The District Court therefore concluded that the applicable sentencing range was 240 to 293 months. See U.S.S.G. 5G1.1. The District Court ultimately sentenced Aguayo-Delgado at the bottom of that range, the statutory minimum of 240 months. Based on 841(b)(1)(A), the District Court also sentenced Aguayo-Delgado to ten years of supervised release, also the statutory minimum. The District Court did not impose a fine because it found that Aguayo-Delgado would be unable to pay, but the District Court did impose the mandatory special assessment.

Aguayo-Delgado appeals on two grounds. First, he argues that the drug quantity should have been charged in the indictment and proven to the jury beyond a reasonable doubt. Second, Aguayo-Delgado contends that the record contains insufficient evidence to support his conviction. We affirm.

I.

The District Court, not the jury, determined the quantity of drugs upon which Aguayo-Delgado's sentenced was based. Indeed, no quantity was specified in the indictment, and there is no way of knowing what quantity the jury believed the government had proven beyond a reasonable doubt. The jury returned only a determination that Aguayo-Delgado was guilty of conspiring to distribute methamphetamine. This has been the practice of the federal courts in recent times. Drug quantity determinations are made by an informal procedure, without the application of the Federal Rules of Evidence, and the burden of proof on the government is only to prove the quantity by a preponderance of the evidence, as opposed to the more difficult task of proving guilt beyond a reasonable doubt. See Note, Awaiting the Mikado: Limiting Judicial Discretion to Define Criminal Elements and Sentencing Factors, 112 Harv. L. Rev. 1349, 1350 (1999) (comparing procedural rules applicable at sentencing with rules applicable at trial).

The drug quantity determination is crucial to the statutory sentencing range. The relevant statutes have several applicable parts. First, 21 U.S.C. 846 (1994) states that the penalty for conspiring to commit an offense in "this subchapter," which refers to 21 U.S.C. 801-904 (1994 & Supp. IV 1998), shall be the same as the penalty for the crime that was the object to the conspiracy. Second, 21 U.S.C. 841(a) defines the crime that was the object of the conspiracy, namely, distribution of a controlled substance. Third, 21 U.S.C. 841(b) defines the penalties for violations of 841(a), which, because of 846, are also the penalties for conspiring to violate 841(a).

Section 841(b) contains numerous possible sentencing ranges, based on drug type, drug quantity, a defendant's prior criminal record, and other matters. ³ Section 841(b)(1)(C) defines penalties for schedule II controlled substances, such as methamphetamine, without reference to drug quantity. Assuming that the defendant has a prior felony drug conviction, as does Aguayo-Delgado, 841(b)(1)(C) describes a penalty of not more than thirty years' imprisonment and at least six years of supervised release. Section 841(b)(1)(A) describes penalties based on fifty grams or more of methamphetamine, and, considering a prior felony drug conviction, requires imprisonment for at least twenty years and not more than life, and also requires at least ten years of supervised release. Section 841(b)(1)(B) describes intermediate sentences based on a methamphetamine quantity of five to fifty grams.

In this case, because of his prior felony drug conviction and a finding that he was responsible for more than fifty grams of methamphetamine, Aguayo-Delgado faced a statutory range of twenty years to life imprisonment and at least ten years of supervised release. See 21 U.S.C. 841(b)(1)(A). The sentencing range applicable to Aguayo-Delgado without reference to drug quantity would be not more than thirty years' imprisonment and at least six years' supervised release. See 21 U.S.C. 841(b)(1)(C). These sentencing ranges are independent of the sentencing guidelines, for the guidelines calculation cannot produce an applicable sentence above the maximum or below the minimum authorized by the applicable statute defining the crime and setting the possible punishment. See U.S.S.G. 5G1.1. Indeed, the constitutionality of the guidelines system is premised upon this assumption. See Mistretta v. United States, 488 U.S. 361, 396 (1989) ("[The guidelines] do no more than fetter the discretion of sentencing judges to do what they have done for generations--impose sentences within the broad limits established by Congress."); see also id. at 391, 395.

We have upheld this system before. In United States v. Wood, 834 F.2d 1382 (8th Cir. 1987), the defendant was convicted under 21 U.S.C. 846 for conspiring to distribute drugs and challenged his mandatory minimum sentence under 841(b)(1)(A) on the grounds that drug quantity was not charged in the indictment or proven to the jury beyond a reasonable doubt. We concluded that 841(b) contains sentencing provisions, not the elements of substantive crimes. See id. at 1388-90. Therefore, we said, Wood's claim must fail because "there is no constitutional right to jury sentencing, even where the sentence turns on specific findings of fact." Id. at 1390. Wood has been followed repeatedly despite numerous challenges. See, e.g., United States v. Olness, 9 F.3d 716, 717 (8th Cir. 1993), cert. denied, 510 U.S. 1205 (1994).

The Supreme Court raised doubts about this holding of Wood in Jones v. United States, 526 U.S. 227 (1999). In interpreting the federal carjacking statute, 18 U.S.C. 2119 (1994 & Supp. IV 1998), the Court concluded that the statute was ambiguous as to whether an increased penalty for "serious bodily injury" during a carjacking was a sentencing factor or an element of a different, more serious, substantive...