United States v. Cavazos, 021220 FED6, 19-5141

Docket Nº:19-5141, 5186
Opinion Judge:NALBANDIAN, CIRCUIT JUDGE
Party Name:United States of America, Plaintiff-Appellee, v. Pedro Vasquez Cavazos, Jr. (19-5141); Christopher Lee Serrano (19-5186), Defendants-Appellants.
Attorney:Andrew M. Stephens, Lexington, Kentucky, for Appellant in 19-5141. Renée Paradis, Brooklyn, New York, for Appellant in 19-5186. Charles P. Wisdom, Jr., Kyle M. Melloan, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Judge Panel:Before: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.
Case Date:February 12, 2020
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Pedro Vasquez Cavazos, Jr. (19-5141); Christopher Lee Serrano (19-5186), Defendants-Appellants.

Nos. 19-5141, 5186

United States Court of Appeals, Sixth Circuit

February 12, 2020

Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 6:18-cr-00012-Robert E. Wier, District Judge.

Andrew M. Stephens, Lexington, Kentucky, for Appellant in 19-5141.

Renée Paradis, Brooklyn, New York, for Appellant in 19-5186.

Charles P. Wisdom, Jr., Kyle M. Melloan, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

Before: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.

OPINION

NALBANDIAN, CIRCUIT JUDGE

After pleading guilty to controlled substance offenses, Pedro Cavazos and Christopher Serrano both received sentencing enhancements because of prior controlled substance convictions. They argue on appeal that the district court improperly applied these enhancements. We agree that Serrano does not qualify as a career offender so we VACATE his sentence and REMAND for resentencing. But the court properly applied Cavazos's enhancement so we AFFIRM his sentence.

I.

In 2017, Cavazos and Serrano transported cocaine from Texas to Kentucky at the request of undercover FBI officers. Based on this conduct, both Cavazos and Serrano pleaded guilty to a single count of conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846. The United States gave notice to both defendants that 21 U.S.C. § 841(b)(1)(B) subjected them to enhanced statutory punishments because of prior felony drug convictions. Cavazos objected, both orally at his re-arraignment and through a written motion prepared by counsel, to basing the enhancement on his 2004 federal conviction for possession with intent to distribute methamphetamine, arguing that it violated the Fifth Amendment's Double Jeopardy Clause. The district court denied Cavazos's objection, finding that Cavazos failed to satisfy his burden of establishing the unconstitutionality of his prior conviction. And even if he had, the court held, the dual sovereignty exception would permit federal prosecution, and Cavazos violated 21 U.S.C. § 851(e)'s five-year limitations period. Serrano orally affirmed his prior conviction. So the district court applied the statutory enhancement to both defendants, resulting in a penalty for each of them of ten years to life. See 21 U.S.C. § 841(b)(1)(B).

Neither defendant objected to his presentence report. So at Cavazos's sentencing, the district court calculated a guidelines range of eighty-four to 105 months. The statutory minimum enhanced the Guidelines recommendation to 120 months, and the court imposed that sentence. At Serrano's sentencing, the district court increased Serrano's offense level to thirty-seven-the mandatory offense level for career offenders guilty of a crime that carries a statutory maximum term of life imprisonment. The court did so because it determined that Serrano's prior federal conviction for conspiracy to possess with intent to deliver cocaine and prior Texas conviction for possession of a controlled substance with intent to deliver qualified as predicate offenses under USSG § 4B1.2. After a three-level reduction for acceptance of responsibility, the district court calculated Serrano's guidelines range to be 262 to 327 months and sentenced Serrano to 262 months. This appeal follows.

II.

Cavazos's confusing appellate brief raises only one argument: that the government obtained the prior conviction used to trigger 21 U.S.C. § 841(b)(1)(B)'s enhanced statutory penalty in violation of the Double Jeopardy Clause. The district court correctly noted both that the dual-sovereignty doctrine likely renders Cavazos's prior conviction constitutionally permissible, see Gamble v. United States, 139 S.Ct. 1960, 1979-80 (2019), and that Cavazos likely failed to satisfy his burden of establishing the unconstitutionality of his prior conviction. But what proves dispositive here is 21 U.S.C. § 851(e). That section prevents any challenge to a prior conviction used to enhance the statutory penalty under § 841(b)(1)(B) when five years have elapsed between the prior conviction and "the information alleging such prior conviction." § 851(e). The government first notified Cavazos that his prior conviction subjected him to an enhanced statutory punishment on June 1, 2018. And the Western District of Texas entered judgment against Cavazos for his prior possession with intent to distribute methamphetamine conviction on December 3, 2004. So almost fourteen years passed between the two. Thus, § 851(e) prevents Cavazos...

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