USA v. Gama-Bastidas, GAMA-BASTIDA

Decision Date25 July 2000
Docket NumberNo. 98-4169,GAMA-BASTIDA,D,98-4169
Citation222 F.3d 779
Parties(10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESUS ROBERTOefendant-Appellant
CourtU.S. Court of Appeals — Tenth Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. D.C. No. 96-CR-192-2

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Benjamin A. Hamilton, Salt Lake City, Utah, for Defendant-Appellant.

Wayne T. Dance, (Paul M. Warner, United States Attorney, Brooke C. Wells, Assistant United States Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff-Appellee.

Before EBEL, PORFILIO, and MAGILL,* Circuit Judges.

EBEL, Circuit Judge.

Jesus Roberto Gama-Bastidas ("Gama-Bastidas") appeals from a conviction and sentence that he contends was imposed in violation of the law. He argues that the underlying indictment to which he pleaded guilty failed properly to charge him with possession of cocaine with intent to distribute and, therefore, that the district court erred in sentencing him on that offense following his plea of guilty. We exercise jurisdiction pursuant to 28 U.S.C. 1291. Because Gama-Bastidas did not assert his challenge to the sufficiency of the indictment until after his conviction, we construe the indictment with maximum liberality. Thus, we can refer to the caption of the indictment, as well as to the statutory reference in the body of the indictment and the other facts contained in the body of the indictment, to determine that the indictment properly charged the crime of possession of cocaine with intent to distribute, even though the body of the indictment itself did not specifically charge intent to distribute. Accordingly, we affirm.

BACKGROUND

The relevant facts are undisputed. On March 5, 1997, the government filed a superseding indictment against Gama-Bastidas and two co-defendants. The caption of the indictment read as follows:

S U P E R S E D I N G

I N D I C T M E N T

VIO. 21 U.S.C.

841(a)(1), 841(b)(1)(B)

and 2

POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE; AIDING AND ABETTING

The body of the indictment stated:

The Grand Jury charges:

COUNT I

On or about August 24, 1996 through August 26, 1996, in the Central Division of the District of Utah,

ARNULFO GARCIA SOSA,

JESUS ROBERTO GAMA-BASTIDAS,

and MANUAL GAMA,

defendants herein, aided and abetted by each other and others unnamed in this Indictment, did knowingly and intentionally possess in excess of five hundred grams of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance; all in violation of Title 21 U.S.C. 841(a)(1) and 841(b)(1)(B), and Title 18 U.S.C. 2.

Thus, while the body of the indictment cited 21 U.S.C. 841(a)(1) and the caption of the indictment referenced an intent to distribute, the body of the indictment failed to allege an intent to distribute, which is an essential element of the 841(a)(1) offense for which he pled guilty and was sentenced. By contrast, the body of the indictment factually charged only simple possession.

On April 11, 1997, Gama-Bastidas entered a conditional guilty plea to the charge of violating 841(a)(1), reserving the right to appeal the district court's denial of his motion to suppress. In a written statement in advance of plea, Gama-Bastidas stated that he "knowingly and intentionally possessed 2.5 kilos of cocaine with intent to distribute and aided and abetted others therein." At the plea hearing, Gama-Bastidas told the court he understood he was being charged with "possession of 2 and a half kilos of cocaine," and in response to further questions he told the court how he, with the assistance of others, brought two and a half kilos of cocaine from Mexico to Utah to sell for $17,000 per kilo.

After the district court accepted Gama-Bastidas' guilty plea, a presentence investigation report (PSR) was prepared. In its section on the charges and conviction, the PSR recited 841(a)(1) and used language identical to the language set forth in the indictment's caption, i.e., "Possession of a controlled substance with intent to distribute." The PSR also recited that Gama-Bastidas had pled guilty to the charge of "Possession of a Controlled Substance With Intent to Distribute, as reflected in Count I." Gama-Bastidas made no objections to these statements in the PSR. On June 23, 1997, the district court sentenced him to the 841 statutory minimum of sixty months' imprisonment.

Gama-Bastidas then appealed on different grounds than is the subject of the present appeal, contending the district court erred in 1) denying his motion to suppress, and 2) refusing to apply USSG 5C1.2 to limit the applicability of the statutory minimum sentence. We concluded on that appeal that the district court properly denied his suppression motion and, therefore, we affirmed his conviction. United States v. Gama-Bastidas, 142 F.3d 1233, 1241 (10th Cir. 1998). We further concluded, however, that the district court erred in failing to make necessary sentencing findings under USSG 5C1.2. Id. at 1242-43. Therefore, we vacated Gama-Bastidas' sentence and remanded with instructions to the district court to make specific findings under 5C1.2. Id. at 1243.

Meanwhile, Gama-Bastidas' two co-defendants went to trial on what was initially presented to the jury as a charge of possession of cocaine with intent to distribute. The jury returned a verdict against defendant's brother, Manuel Gama, but it acquitted his friend, Arnulfo Sosa. The brother, Manuel Gama, was sentenced to seventy-eight months' incarceration. His conviction was reversed on appeal due to instructional error on his defense of entrapment, and the case was remanded for retrial. United States v. Gama, No. 97-4109, 1998 WL 133833, at **4 (10th Cir. Mar. 25, 1998) (unpublished order and judgment). Gama was retried in the district court in June of 1998. While preparing jury instructions for the new trial, the district court noticed that the body of the indictment did not charge intent to distribute. Concluding that the indictment charged only simple possession, the district court refused to instruct the jury on intent to distribute. The jury found Gama guilty of possession of a controlled substance in violation of 21 U.S.C. 844(a), and the court subsequently sentenced Gama to twelve months' incarceration, which was the maximum prison term allowable under 844(a). No appeal was taken.

More than two months later, Gama-Bastidas appeared for resentencing as a result of our remand. After hearing argument from counsel, the court concluded that Gama-Bastidas did not qualify for the benefit of USSG 5C1.2, which was the only subject of the remand.1 Therefore, the court again imposed the sixty-month mandatory minimum sentence. Immediately after the court pronounced the sentence, defense counsel made an oral motion under Fed. R. Crim. P. 35(c) to correct the sentence. Relying on the earlier ruling in favor of defendant's brother, Manuel Gama, that the common indictment charged only simple possession, counsel argued that it was clear error to impose a sentence greater than twelve months, which was the maximum penalty for simple possession.2 The court instructed counsel to file a written motion, which he did. Approximately two months later, the district court entered a written decision denying the motion. Noting that Gama-Bastidas' current claim was actually a challenge to his conviction, the district court concluded that Rule 35(c) was not the proper avenue for relief. Although the court recognized its power to construe the motion as one to vacate, set aside, or correct a sentence under 28 U.S.C. 2255, the court chose not to do so.

DISCUSSION
A. Gama-Bastidas' Arguments

Gama-Bastidas argues that the district court's ruling in Gama's casethat the indictment did not charge a 841(a) violationis law of the case and that principles of collateral estoppel or issue preclusion prevent the government from arguing otherwise. Accordingly, he contends that the district court should have treated him in the same manner as his co-defendant, by construing his plea and conviction as a plea and conviction for simple possession under 844 only. Gama-Bastidas further argues that his conviction for possession with intent to distribute under 841(a) was unconstitutional because it impermissibly exceeded the grand jury's charge in violation of his Fifth Amendment right to be tried for a felony only on a grand jury indictment.

Gama-Bastidas also argues that the district court construed Rule 35(c) too narrowly. According to his interpretation, the rule's plain language invested the district court with authority to correct the underlying "clear error," and, therefore, the court should have resentenced him as though he had been convicted of a 844 violation, rather than a 841(a) violation. He claims the court's failure to properly recognize and exercise its authority under Rule 35(c) is reversible error.

B. Appellate Jurisdiction and the Scope of Our Review

This case comes before us in an unusual posture. The government contends that we have no jurisdiction to review Gama-Bastidas' claim because he is attacking a sentence that is within the guideline range and he is not challenging the district court's application of the sentencing guidelines. See 18 U.S.C. 3742(a) (delineating grounds upon which sentence can be appealed). Although Gama-Bastidas purports to complain of sentencing error, he is actually attacking the sufficiency of the underlying indictment and, therefore, his conviction. Because we have jurisdiction to review the denial of a challenge to the conviction under 28 U.S.C. 1291, our jurisdiction is not limited to the grounds set forth in 3742(a). Gama-Bastidas' current claim does, however, implicate our earlier decision affirming his conviction.

Ordinarily, we will not review in a second direct appeal an issue that underlies a previously affirmed conviction. See United...

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