United States v. Sepúlveda-Hernández

• Citation: 752 F.3d 22
• Decision Date: 02 May 2014
• Docket Number: Nos. 12–2301,13–1339.,s. 12–2301
• Parties: UNITED STATES of America, Appellee, v. Tomás SEPÚLVEDA–HERNÁNDEZ, a/k/a Tommy, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

752 F.3d 22

UNITED STATES of America, Appellee,

v.Tomás SEPÚLVEDA–HERNÁNDEZ, a/k/a Tommy, Defendant, Appellant.

Nos. 12–2301, 13–1339.

United States Court of Appeals, First Circuit.

May 2, 2014.

Irma R. Valldejuli for appellant.

Julia Díaz–Rex, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The appeals in this criminal case raise two questions of first impression in this circuit. The first asks whether the statute doubling the maximum available penalty for drug distribution in close proximity to a youth center, see21 U.S.C. § 860(a), creates an independent substantive offense or, instead, operates merely as a sentence-enhancing factor. We conclude that this statute does create an independent offense. We also conclude, however, that the evidence offered at trial was insufficient to support convictions for that offense.

This tees up the second novel question, which asks whether, notwithstanding that the evidence was insufficient to ground convictions under section 860(a), the defendant can be held to account on a lesser included offense theory under 21 U.S.C. § 841(a)(1). We answer this question in the affirmative.

After dispatching the remainder of the defendant's asseverational array, we vacate the convictions and sentence under section 860(a), order the entry of convictions under section 841(a)(1), and remand for resentencing. At the same time, we affirm a related $1,000,000 criminal forfeiture judgment. The tale follows.

I. TRAVEL OF THE CASE

From 2000 to 2008, defendant-appellant Tomás Sepúlveda–Hernández was the marijuana supplier to, and a co-owner of, an open air drug market in La Trocha Ward, Vega Baja, Puerto Rico. This drug point was located in close proximity to a public basketball court.

In December of 2008, a federal grand jury indicted the defendant, along with fifty-eight others, on charges stemming from the distribution of marijuana and crack cocaine. For reasons that need not concern us, the crowd thinned and the defendant stood trial alone. Following ten days of trial, a jury found the defendant guilty of conspiracy to possess with intent to distribute at least 50 grams of crack cocaine and at least 100 kilograms of marijuana (count 1), see21 U.S.C. §§ 841(a)(1)(drug distribution), 846 (conspiracy), as well as aiding and abetting in the distribution of at least 100 kilograms of marijuana (count 3), see18 U.S.C. § 2 (aiding and abetting). On a special verdict form, the jury indicated that the culpable activities described in counts 1 and 3 took place “within 100 [feet] of a private or public youth center ... intended primarily for use by persons under 18 years of age.” The jury also found against the defendant on a related criminal forfeiture count (count 4). See21 U.S.C. § 853(a). The district court elevated the defendant's offense level in light of the jury's finding that drug sales had occurred in close proximity to a youth center, seeUSSG § 2D1.2(a)(1); imposed a 210–month incarcerative sentence; and set the forfeiture amount at $1,000,000.

These timely appeals followed. In them, the defendant mounts a wide variety of challenges to his convictions, his sentence, and the forfeiture judgment. We examine these challenges sequentially.

II. SUFFICIENCY OF THE EVIDENCE

The defendant asserts that the government's evidence was insufficient in two respects. He argues, first, that the proof failed to establish that the drug point operated within 100 feet of a youth center. He argues, second, that the government failed to prove that he had any role at all in the conspiracy.

We review preserved sufficiency challenges de novo. See United States v. Gobbi, 471 F.3d 302, 308 (1st Cir.2006). In conducting our inquiry, we examine the evidence “in the light most agreeable to the prosecution and decide whether that evidence, including all plausible inferences extractable therefrom, enables a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime.” United States v. Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir.2000) (internal quotation mark omitted). We will uphold a conviction as long as the jury's verdict “is supported by a plausible rendition of the record.” United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992).

A. The Charged Crimes.

The charges in this case (conspiracy and aiding and abetting) implicate 21 U.S.C. § 860(a), which provides that any person who commits certain drug-related crimes “within 100 feet of a public or private youth center” shall be “subject to [ ] twice the maximum punishment” otherwise authorized. The term “youth center” is defined as “any recreational facility and/or gymnasium (including any parking lot appurtenant thereto), intended primarily for use by persons under 18 years of age, which regularly provides athletic, civic, or cultural activities.” Id. § 860(e)(2). The defendant concedes that the drug market described by the government was within 100 feet of a public basketball court, but he insists that the government failed to prove that the facility was “intended primarily” for use by minors.

As a threshold matter, the parties wrangle about the quantum of proof required to establish proximity to a “youth center.” The defendant posits that section 860(a) creates an independent substantive offense, so that proximity to a youth center is an element of that crime that must be proven to the jury beyond a reasonable doubt. See United States v. Goodine, 326 F.3d 26, 28 (1st Cir.2003) (explaining that elements of crimes must be proven to a jury beyond a reasonable doubt). The government demurs. It posits that proximity to a youth center is simply a sentence-enhancing factor that must only be proven to the judge by preponderant evidence. See id. (explaining that sentencing factors may be found by the judge under a preponderance standard).

The distinction between substantive crimes and sentencing factors can often be enigmatic. In any given case, however, this distinction boils down to a question of statutory interpretation.

In interpreting the statute at issue here, we do not write on a pristine page. No fewer than ten of our sister circuits have grappled with the same question, and all of them have concluded that section 860(a) creates an independent substantive offense, not merely a sentence-enhancing factor. See United States v. Osborne, 673 F.3d 508, 513 (6th Cir.2012) (collecting cases). We have been unable to find (and the government has not cited) any contrary circuit court precedent.

In our view, the consensus position is correct. A statute ought to be read as a whole. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000); O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir.1996). Here, subsection (d) of section 860 states that persons “convicted under this section” are only parole-eligible under certain circumstances. Similarly, subsection (b) discusses the effects of “a prior conviction under subsection (a).” It would be strange for Congress to describe a person as having been “convicted” under a sentencing factor—and we do not think that Congress indulged such an awkward locution here. Thus, we maintain the unanimity of the courts of appeals and hold that section 860(a) creates an independent substantive offense.

Given this holding, our task is to plumb the record to determine whether the evidence is sufficient to allow any rational factfinder to conclude beyond a reasonable doubt that the basketball court near the drug market was intended primarily for the use of minors. The government's evidence on this point is distressingly vague. It includes the testimony of a longtime resident that “different people, children would go there to play, young people, old people, adults.” It also includes the testimony of a municipal official who recounted that the court is made available for basketball tournaments and other community uses. Neither piece of evidence speaks to whether the facility was “intended primarily” for the use of minors.

In an effort to fill this void, the government relies on several surveillance videos of controlled drug buys, which show a few children and young people (among many others) in the background. The government's reliance is mislaid: it defies reason to think that this video evidence has the capacity to prove that the basketball court was intended primarily for the use of minors.

Words in a statute have consequences. “[P]rimarily” means “essentially; mostly; chiefly; principally.” The Random House Dictionary of the English Language 1537 (2d ed.1987). It follows, we think, that Congress did not intend for drug sales at specific locations to trigger sharply increased penalties simply because minors happen to be in the vicinity of a particular facility from time to time.

In this case, the government has not offered a shred of evidence that the municipality either constructed or maintained the basketball court chiefly or principally for the enjoyment of minors. Nor has it produced even a scintilla of evidence that the court's regular use was mainly or mostly by minors. Given this paucity of proof, the inference that the government asks us to draw is insupportable.

In a Rumpelstiltskin-like effort to turn dross into gold, the government lauds the decision in United States v. Lee, 242 Fed.Appx. 209 (5th Cir.2007) (per curiam). There, the court upheld a youth center proximity finding with respect to drug distribution near the TEEN F.L.O.W. Youth Center in Midland, Texas. See id. at 210, 212. The court's discussion of the issue comprises only two sentences. It states that “there was uncontroverted and unchallenged testimony that the [center] was a ‘youth center’ where children played basketball.” Id. at 212...