United States v. Leontaritis

Decision Date09 October 2020
Docket NumberNo. 19-40498,19-40498
Citation977 F.3d 447
Parties UNITED STATES of America, Plaintiff—Appellee, v. John D. LEONTARITIS, Defendant—Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

977 F.3d 447

UNITED STATES of America, Plaintiff—Appellee,
v.
John D. LEONTARITIS, Defendant—Appellant.

No. 19-40498

United States Court of Appeals, Fifth Circuit.

FILED October 9, 2020


Stephan Edward Oestreicher, Jr., Bradley Elliot Visosky, Assistant U.S. Attorney, U.S. Attorney's Office, Plano, TX, Michael Andrew Anderson, Assistant U.S. Attorney, Michelle Suzanne Englade, Assistant U.S. Attorney, U.S. Attorney's Office, Beaumont, TX, for Plaintiff-Appellee.

Federico Reynal, Lynn Hardaway, Fertitta Reynal, L.L.P., Houston, TX, for Defendant-Appellant.

Before Higginbotham, Elrod, and Haynes, Circuit Judges.

Haynes, Circuit Judge:

977 F.3d 450

John D. Leontaritis was charged with one count of conspiracy to possess with the intent to distribute and distribute 500 grams or more of a mixture containing methamphetamine and one count of conspiracy to commit money laundering. The jury found Leontaritis guilty on both counts. The jury also returned a special verdict finding beyond a reasonable doubt that the conspiracy involved 500 grams or more of a mixture containing methamphetamine. On the question of Leontaritis's accountability, the jury did not find that he was accountable for more than 50 grams. The district court, concluding that a preponderance of the evidence showed that it was reasonably foreseeable that Leontaritis was responsible for 176 kilograms of methamphetamine, sentenced Leontaritis to concurrent terms of 240 months of imprisonment, to be followed by a total of three years of supervised release.

Leontaritis appeals, arguing that the district court erred in finding that the amount of drugs reasonably foreseeable to him within the scope of the conspiracy was 176 kilograms. Citing Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), he contends that the district court was bound by the jury's finding that he was accountable for less than 50 grams of methamphetamine and that the district court's alleged disregard of this finding violated the Fifth and Sixth Amendments. We review Leontaritis's properly preserved constitutional challenge to his sentence de novo. See United States v. King , 773 F.3d 48, 52 (5th Cir. 2014).

The pertinent jury question and answer are as follows:

You must next determine the quantity of methamphetamine for which the defendant was accountable. Indicate below your unanimous finding beyond a reasonable doubt of the quantity of methamphetamine, if any, attributable to the defendant. The defendant is accountable only for the quantity of methamphetamine with which he was directly involved and all reasonably foreseeable quantities of methamphetamine within the scope of the conspiracy reasonably foreseeable to him.

____ 500 grams or more of a mixture or substance containing detectable amount of methamphetamine.

____ 50 grams or more but less than 500 grams of a mixture or substance containing a detectable amount of methamphetamine.

_ X _ Less than 50 grams of a mixture or substance containing a detectable amount of methamphetamine.

The general instructions required proof by the Government beyond a reasonable doubt. Leontaritis argues that the jury found beyond a reasonable doubt that he was accountable for less than 50 grams. We read it the other way: that the Government failed to prove 50 or more grams beyond a reasonable doubt. In so doing, our opinion is consistent with the vast majority of circuits that have considered this issue. See United States v. Lopez-Esmurria , 714 F. App'x 125, 127 (3d Cir. 2017) (unpublished); United States v. Webb , 545 F.3d 673, 678 (8th Cir. 2008) ; United States v. Florez , 447 F.3d 145, 156 (2d Cir. 2006) ; United States v. Magallanez , 408 F.3d 672, 684–85 (10th Cir. 2005) ;

977 F.3d 451

United States v. Goodine , 326 F.3d 26, 33–34 (1st Cir. 2003) ; United States v. Smith , 308 F.3d 726, 744–45 (7th Cir. 2002). Only the Ninth Circuit came out the way Leontaritis requests. United States v. Pimentel-Lopez , 859 F.3d 1134, 1140 (9th Cir. 2017).

But, either way, Leontaritis's argument fails to recognize the difference between Apprendi and Alleyne , on the one hand, and United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), on the other hand. The former cases deal with statutory minimums and maximums. See United States v. Stanford , 805 F.3d 557, 570 (5th Cir. 2015). As to those findings, the jury verdict is binding. Apprendi , 530 U.S. at 490, 120 S.Ct. 2348 ; Alleyne , 570 U.S. at 103, 133 S.Ct. 2151. On the other hand, here, the question relates to the calculation and application of the Sentencing Guidelines, which is within the judge's duty, not the jury's. Booker , 543 U.S. at 257, 125 S.Ct. 738. The Supreme Court made this clear in United States v. Watts , which it has not overruled. 519 U.S. 148, 156–57, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (holding that a district judge may rely on conduct proven by a preponderance of the evidence even if the jury did not find the same conduct proven beyond a reasonable doubt at trial). Indeed, we have consistently explained:

[T[he Alleyne opinion did not imply that the traditional fact-finding on relevant conduct, to the extent it increases the discretionary sentencing range for a district judge under the Guidelines, must now be made by jurors. ... The Court did not suggest that the setting of Sentencing Guidelines ranges in a PSR, which structure but do not control district judge discretion, were subject to the same requirement.

United States v. Hinojosa , 749 F.3d 407, 412–13 (5th Cir. 2014) ; see also Stanford , 805 F.3d at 570 (holding that "[n]either Apprendi nor Alleyne applies to sentencing guidelines" and that a district court may "adjudge[ ] a sentence within the statutorily authorized range"); United States v. Romans , 823 F.3d 299, 316–17 (5th Cir. 2016) (holding the same).1

Even if the charge in this case suggested some intent to bind the district judge's sentencing discretion, mistakes in jury charges do not change the way a jury's role is assessed. See Musacchio v. United States , ––– U.S. ––––, 136 S. Ct. 709, 715, 193 L.Ed.2d 639 (2016) (holding that where the jury question erroneously added an extra element to a charge, the analysis of sufficiency of the evidence should not include that added element). "We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range." Booker , 543 U.S. at 233, 125 S.Ct. 738. Indeed, because mandatory guidelines impinged on the judge's role, Booker severed that part of the Guidelines statute. Id. at 246, 125 S.Ct. 738. We are therefore left with a clean division of labor: absent waiver of a jury trial, statutory findings (whether the defendant is guilty or not guilty and whether his conduct meets the test for a statutory minimum or maximum) are for jurors to decide, while sentencing within the statutory minimums and maximums following a guilty verdict and applying the Sentencing Guidelines is for the district judge to decide.2 Accordingly, we

977 F.3d 452

conclude that the district court did not err in making its decision about drug quantity for purposes of determining the applicable Sentencing Guidelines range.

Leontaritis also challenges the district court's application of a two-level enhancement under § 3B1.3 of the Sentencing Guidelines based on a finding that he abused a position of trust or used a special skill to significantly facilitate the commission or concealment of the offense. The district court found that he possessed a state-issued license for his car dealership and that he used the license to facilitate and conceal the offense. Leontaritis argues that he held no position of trust. He also asserts that the evidence at trial did not support the district court's conclusion that a co-conspirator purchased multiple cars from Leontaritis. The Government responds that, even if the court erred in this regard, the error is harmless.

We review the district court's interpretation or application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). A finding of fact is not clearly erroneous if it is plausible in light of the entire record. Id.

"A procedural error during sentencing is harmless if the error did not affect the district court's selection of the sentence imposed." United States v. Delgado-Martinez , 564 F.3d 750, 753 (5th Cir. 2009) (internal quotation marks and citations omitted). An error in calculating the Sentencing Guidelines is harmless if the district court considered the correct advisory guidelines range in its analysis and stated that it would impose the same sentence even if that range applied. United States v. Richardson , 676 F.3d 491, 511 (5th Cir. 2012). Even when a district court fails to consider the correct sentencing guideline range, an error may be harmless "if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing." United States v. Ibarra-Luna , 628 F.3d 712, 713–14 (5th...

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