United States v. Sharpton

• Decision Date: 06 June 2001
• Docket Number: No. 01-1782,No. 01-1780,No. 01-1783,No. 01-1781,01-1780,01-1781,01-1782,01-1783
• Citation: 252 F.3d 536
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. ALFRED SHARPTON, DEFENDANT, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. ADOLFO CARRION, DEFENDANT, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. ROBERTO RAMIREZ, DEFENDANT, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. JOSE; RIVERA, DEFENDANT, APPELLANT. ,,,,,, Heard
• Court: U.S. Court of Appeals — First Circuit

Page 536

252 F.3d 536 (1st Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. ALFRED SHARPTON, DEFENDANT, APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. ADOLFO CARRION, DEFENDANT, APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. ROBERTO RAMIREZ, DEFENDANT, APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. JOSE; RIVERA, DEFENDANT, APPELLANT.

No. 01-1780,, No. 01-1781,, No. 01-1782,, No. 01-1783

United States Court of Appeals For the First Circuit

Heard June 6, 2001

Decided June 14, 2001

As amended June 14 and 19, 2001.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jose A. Fuste, U.S. District Judge] [Copyrighted Material Omitted] Flora Edwards, Max D. Stern, and Charles J. Ogletree, Jr., with whom Stern, Shapiro, Weissberg & Garin was on brief, for appellants.

Peter Strasser, Special Assistant United States Attorney, for appellee.

Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, and James L. Cott on brief for NAACP Legal Defense & Educational Fund, Inc., amicus curiae.

Before Selya, Boudin, and Lynch, Circuit Judges.

Per Curiam.

Alfred Sharpton, Adolfo Carrion, Roberto Ramirez, and Jose Rivera appeal their convictions and sentences for violating 18 U.S.C. § 1382 by trespassing on Camp Garcia Naval Installation at Vieques, Puerto Rico. ¹ Sharpton was sentenced to 90 days' imprisonment in light of a prior conviction. The other defendants were sentenced to 40 days' imprisonment. We previously expedited consideration of these appeals. We now affirm.

Appellants advance a series of arguments. They argue that: the evidence was insufficient to sustain their convictions; their sentences were plainly unreasonable; they were rushed to trial and the trial court abused its discretion in denying a continuance; the sentencing proceeding was flawed; they were denied counsel of their choice; and their retained counsel was ineffective.

We set the context. An area of Camp Garcia in Vieques is used for live-fire artillery and bombardment exercises by the U.S. Navy. This, in turn, has led to protests and political controversy. Some of the protesters have staged demonstrations within the perimeters of Camp Garcia without obtaining permission to enter. These incidents have led to government prosecutions for trespassing on a military installation, a Class B misdemeanor charge carrying a maximum potential sentence of six months' imprisonment. In the year 2000, approximately 400 protesters were arrested and prosecuted for such trespasses.

Between April 27 and May 2 of 2001, over 180 arrests were made, including the arrests on May 1 of the four appellants here; during this time period, Camp Garcia was totally closed because the live ordinance impact area was "hot" and demonstrations were going on at the gate. The district court has attempted to expedite the handling of these 180-plus cases, trying ten or so defendants a day in consolidated proceedings. The four defendants in these appeals were arraigned on May 2, 2001, and tried on May 23, 2001, along with eight others who had been arrested contemporaneously.

We address the appellants' substantive claims first and their procedural claims second.

I. Sufficiency of the Evidence

Appellants argue that there was insufficient evidence that they had actual notice that they were trespassing on U.S. Navy property. See United States v. Bonilla, 648 F.2d 1373, 1377-78 (1st Cir. 1981) (holding that, where 18 U.S.C. § 1382 prosecution proceeds on trespass theory, it must be shown that defendant had notice that entry onto military property was in fact prohibited). ² We have described the standard of review for insufficiency of the evidence claims as "formidable." United States v. Loder, 23 F.3d 586, 589 (1st Cir. 1994). "[W]e must affirm unless the evidence, viewed in the light most favorable to the government, could not have persuaded any trier of fact of the defendant's guilt beyond a reasonable doubt." United States v. Hernandez, 218 F.3d 58, 64 (1st Cir. 2000) (quoting United States v. Paradis, 802 F.2d 553, 559 (1st Cir. 1986)), cert. denied, ___ U.S. ____, 121 S. Ct. 840 (2001).

The appellants attempt a comparison of their case to Bonilla. The defendants in Bonilla were arrested after approaching Camp Garcia by boat, landing on Blue Beach -- a beach on the south side of the island lacking any fences or signs warning that entry onto the area was prohibited. 648 F.2d at 1379-80 & n.14. Without such means of notice, the Bonilla court held, the defendants could not be presumed to have known that they were trespassing on military property. Id. at 1383. The appellants here claim on appeal that they could have entered the base in the same fashion as the Bonilla defendants; the evidence was insufficient, they say, to prove that they did not, and so it was insufficient to prove that they had actual notice they were trespassing.

The comparison is simply not apt. The circumstances surrounding the appellants' arrests differ dramatically from those in Bonilla. In this case, one of the government's witnesses at trial, Officer Guebert, testified that she came upon the appellants on the north side of the island, standing near the fence running along the western border of the base. ³ The area was about half a mile from the main gate and miles from the beach. Questioned on cross-examination whether she asked the appellants if they had a permit to be there, Guebert responded that it was obvious that they had none and had entered illicitly: right behind them was the fence with a large hole cut through it. ⁴ That fact by itself is sufficient to enable a rational factfinder to conclude beyond a reasonable doubt that the appellants knowingly trespassed onto Camp Garcia. ⁵

Sentences

The appellants next challenge the length of their prison terms. The sentences imposed were within the statutory limits. See 18 U.S.C. § 1382. Section 1382 is a Class B misdemeanor because a violation carries a maximum term of six months' imprisonment. See id. § 3559(a)(7). The sentencing guidelines do not apply to Class B misdemeanors. See U.S.S.G. § 1B1.9. We review the appellants' sentences, therefore, only to determine whether they are "plainly unreasonable." 18 U.S.C. § 3742(e)(4).

That extremely high bar is not met here. The district court had valid reasons for imposing the sentences it did. On this point, we take judicial notice of the district court's remarks during sentencing proceedings in another consolidated Camp Garcia trespassing case, held the previous day. There, the court explained that the primary factors motivating its sentencing decisions in these cases were those listed in 18 U.S.C. § 3553(a)(2)(A) and (B) -- namely, the need "to promote respect for the law" and the need "to afford adequate deterrence to criminal conduct." The court, referring to sentences given in the year 2000, noted that treating Camp Garcia trespassers with a "slap on the wrist" had not adequately served these objectives. It can safely be thought that these same considerations generally guided the district court's sentencing decisions in the present case. Indeed, the court imposed the same sentences in both proceedings: 40-day jail terms for first-time offenders and 90-day jail terms for second-time offenders.

We reject the appellants' contention that the district court's employment of these categories was in and of itself "plainly unreasonable," reflecting a "one-size-fits-all" approach to sentencing that ignored material differences between defendants. The record makes clear that the court drew individual distinctions among the various defendants. Not only did the court distinguish between first- and second-time offenders, but the court also took into account more individualized factors that it considered to be mitigating; specifically, the court gave lighter sentences to those defendants with serious medical conditions.

Perhaps, as the appellants contend, the district court could have drawn more subtle distinctions among the defendants and adjusted the precise length of their individual sentences accordingly. But there is nothing "plainly unreasonable" about the district court's choice to limit its drawing of distinctions at the point that it did -- especially given that there was nothing in the record to distinguish the offense conduct of the individual defendants; all appeared to have trespassed in the same fashion in the same incident. ⁶

In short, these matters firmly rest within the broad discretion of the district court. We find nothing "plainly unreasonable" in the manner in which the court exercised that discretion. The appellants' sentences stand.

II. Denial of Continuance

Appellants argue that they lacked sufficient time to prepare for trial and that the district court abused its discretion in denying their motion for a continuance.

The record shows that the court issued a notice on May 10, 2001, alerting the parties to the trial date, May 23, 2001. Counsel did not move for a continuance until the commencement of trial. In denying a continuance, the trial court referenced the fact that the May 10 notice of the trial date provided adequate time for preparation and on that basis ordered the trial to proceed.

That decision withstands scrutiny. The trial transcript reveals that Jorge Manuel Carmona Rodriguez was appellants' counsel of record from the date of arraignment. In requesting a continuance at trial, Carmona's only stated reason for not being prepared was that his clients had just arrived that morning. Once counsel had notice of the trial date, it was his obligation to prepare his clients for trial. That he did not do so until the morning of the proceeding (assuming the allegation is true) does not oblige the district court to grant a motion for a continuance. ⁷ Counsel did not argue to the trial court that the notice of the trial date was deficient in any way; nor did he provide any other reason for a continuance.

To be sure, exactly when counsel...