Wednesday, November 08, 2006

Court Holds Watts Lives and Preponderance Standard Still Governs Guideline Findings; Rejects Other Challenges to Drug Convictions and Sentences

United States v. Farias, No. 05-40468 (5th Cir. Nov. 2, 2006) (Higginbotham, Dennis, Clement)

Farias addresses a cornucopia of issues raised by brothers Jorge and Adrian Farias following their convictions of participating in a drug conspiracy. The opinion contains several holdings you should be aware of:
  • no-prosecution clause in Jorge's earlier plea agreement to illegal reentry did not bar his prosecution for a drug conspiracy that commenced prior to the agreement
  • the evidence was sufficient to support the jury's finding that Jorge and Adrian were involved in a single conspiracy, rather than separate conspiracies with a common co-conspirator
  • Watts survives Booker, so Jorge could receive a 2-level gun enhancement under U.S.S.G. §2D1.1(b)(1) notwithstanding the fact that the jury found Jorge not guilty of an actual § 924(c)(1) charge; also knowledge of the gun is not required for the enhancement
  • despite Jorge's argument that he went to trial solely to preserve the plea agreement issue, he never actually admitted factual guilt and therefore wasn't entitled to an acceptance of responsbility adjustment
  • because Adrian was convicted under 21 U.S.C. § 841(b)(1)(A) he was subject to a 10-year mandatory minimum, regardless of the fact that an alternative guideline calculation based on meth purity would have produced a quantity triggering only a 5-year mandatory minimum under § 841(b)(1)(B)

That's the Cliff's Notes version. Read on if you're interested in the particulars.

Factual and Procedural Background
Jorge was arrested in September, 2002 while trying to collect a drug debt at a house in Lewisville, Texas. Police arrived at the scene after receiving a report of people "hollering in the street." They found 100 grams of methamphetamine and a gun under the seat of the car in which Jorge had been sitting outside of the house.

Jorge later pled guilty to state charges of possession with intent to distribute methamphetamine. While Jorge was in jail pending the disposition of that case, INS agents discovered that he was illegally present in the United States. That led to a federal charge of illegal reentry. Jorge pled guilty to that charge in January 2003 pursuant to a plea agreement that contained, among other things, an agreement by the Government not to "charge [him] with any other criminal violations concerning activities committed prior to the date of this agreement which the Defendant makes known to the United States and which do not involve crimes of violence or Title 26 offenses." Slip op. at 2-3 (quoting plea agreement).

As it turns out, authorities has been investigating a drug conspiracy headed by another Farias brother, Jesus. In October 2004 the Government indicted Jorge, Adrian, and others for "conspiracy to distribute amphetamine, methamphetamine, heroin, cocaine, and marijuana from 1999 through October 14, 2004. . . . [I]t also indicted Jorge under 18 U.S.C. § 924(c)(1) for using and carrying a firearm during a drug trafficking crime [based on the gun found when he was arrested in September 2002]." Slip op. at 3.

The district court denied Jorge's motion to dismiss the conspiracy count, rejecting his argument that the charge was barred by his plea agreement. A jury convicted Jorge and Adrian of the conspiracy charge, and found Jorge not guilty of the § 924(c)(1) charge. "The court sentenced Adrian to 120 months and Jorge to 121 months after denying Jorge's request for an adjustment for acceptance of responsbility and finding that he possessed a gun during the underlying conspiracy offense." Slip op. at 4.

Jorge and Adrian raised a number of arguments challenging their convictions and sentences on appeal, all of which the Fifth Circuit rejected.

Jorge's Plea Agreement Did Not Bar Drug Conspiracy Prosecution
Jorge argued that the no-prosecution clause in his plea agreement precluded the Government from prosecuting him for the drug conspiracy because the Government had to have known of his September 2002 drug arrest at the time of the January 2003 illegal reentry plea agreement. (After all, it was that arrest that led to his discovery by immigration agents and the subsequent illegal reentry charge.)

The court disagreed: "Jorge's argument fails because the plea agreement precludes prosecution only for crimes 'ma[d]e known' by Jorge, and Jorge did not 'make known' the conspiracy. The Government discovered it through independent investigation. And some of the individual acts proving the conspiracy relied on by the Government at trial occurred after the plea agreement." Slip op. at 5.

In other words, carefully scrutinize the language of no-prosecution agreements to make sure you're not buying a pig in a poke.

There Was Sufficient Evidence to Support Jorge's and Adrian's Convictions
Jorge and Adrian argued principally that "a bunch of drug dealers with the same desire operating in the same area are not, without more, co-conspirators, even if they sell to or buy from the same people - in the vernacular, it is a rimless conspiracy." Slip op. at 7. (Not a bad argument, by the way.) They also cited Tenth Circuit law requiring some level of "interdependence" among co-conspirators.

The court held that there was sufficient evidence that Jorge and Adrian participated in a common conspiracy, based on the testimony of Jorge's acquaintances and taped jail conversations among Jorge, Adrian, and Chuy evidencing a common endeavor. "Furthermore, although we do not explicitly require 'interdependence' in this circuit, there was plenty of 'interdependence' here." Slip op. at 7.

There's an additional twist with regard to Adrian, because he was under 18 at the time of the inception of the conspiracy in 1999. The court, however, found sufficient evidence that he participated in conspiratorial activities after his 18th birthday in 2000, and well into 2003.

Preponderance-of-the-Evidence Standard Still Governs Guideline Findings, and Acquitted Conduct May Still Serve as the Basis for Guideline Enhancements
Jorge argued that Booker implicitly overruled Watts, and that the district court erred by hitting him with a §2D1.1(b)(1) gun enhancement based on a preponderance rather than a BRD finding following the jury's verdict on the § 924(c)(1) count. He also argued that, under either standard, there was insufficient evidence to support the enhancement.

The court disagreed: "Watts survives Booker, and district courts must still determine sentencing facts by a preponderance of the evidence, even facts contradicting jury findings." Slip op. at 10. As for the factual basis for the enhancement, it was not clearly improbable that the gun was connected with the offense given the presence of the gun underneath the seat in a car containing drugs at the scene of an attempt to collect a drug debt. The court also held that it's the defendant's burden to rebut the inference arising from those facts; it's not the Government's burden to prove that it isn't clearly improbable that the gun was connected with the offense. Also, it does not matter whether Jorge had any personal knowledge of the gun. (The court doesn't explain this last point, but presumably it's because of a relevant conduct theory.)

This probably won't be the final word on these issues, seeing as how the Supreme Court has agreed to take up the issues of reasonableness review and the post-Booker status of the guidelines (presumptively reasonable or no?).

Jorge Never Admitted His Factual Guilt, So He Was Not Entitled to Acceptance
Jorge argued that he qualified for a §3E1.1 acceptance of responsibility adjustment because 1) he went to trial solely to preserve the issue of whether the plea agreement barred his prosecution, and 2) he effectively admitted his guilt when he pled guilty in state court to the meth charges arising out of his September 2002 arrest.

The court held otherwise. It concluded that 1) he did challenge his factual guilt at trial, 2) his guilty plea in state court was to a more easily proven offense with different elements than the federal conspiracy charge, and 3) if he wanted to preserve the plea agreement issue he could have requested permission to enter a conditional guilty plea to the conspiracy charge rather than go to trial.

Because Adrian Was Charged and Convicted Under § 841(b)(1)(A) Court Was Bound by 10-Year Mandatory Minimum, Even Though Alternative Guideline Calculation Based on Meth Purity Would Produce Quantity Triggering Only § 841(b)(1)(B) 5-Year Mandatory Minimum
Adrian argued that the district court mistakenly believed it lacked discretion to apply the 5-year mandatory minimum under 21 U.S.C. § 841(b)(1)(B) rather than the 10-year mandatory minimum in (b)(1)(A). The jury found him responsible for an 897.67 gram methamphetamine mixture, which is above the 500 gram threshold required for the (b)(1)(A) 10-year minimum.

Adrian argues that the mixture, because it was 5% pure, contained only 44 grams of actual methamphetamine; under § 841(b)(1)(B), this actual amount yields only a 5-year minimum. Conceding that a note to the Guidelines directs courts to use the greater offense level resulting from either the actual or mixture amounts when calculating the Guidelines sentence, he argues that the post-Booker advisory Guidelines now allow a court to choose either mandatory minimum, since the statute itself provides no direction and the Guidelines are advisory.
Slip op. at 13. The court disagreed:
Adrian does not argue that a judge has discretion under Booker to sentence below a mandatory minimum, a proposition this and other courts have rejected; rather, he argues that which mandatory minimum applies is unclear, since § 841 itself does not specify which measure to use — actual amount or mixture amount — when more than one apply, and only the Guidelines, now advisory, provide direction. Yet which minimum applies is not in dispute - the indictment charged, and the jury found Adrian guilty of, § 841(b)(1)(A), not § 841 in general, triggering the ten-year minimum. Adrian’s Booker argument confuses the mandatory minimums with the Guidelines - while a sentencing judge has no discretion to choose which minimum applies when a defendant is convicted of a certain § 841 offense, he does have “discretion” to predicate the Guidelines base offense level for that conviction on either of two different measures of drugs, pure or mixture, regardless of which § 841 offense the defendant was convicted or what measure the Government proved to get that conviction. But whatever result the Guidelines yield, the sentence cannot be less than the mandatory minimum. Because Adrian received the mandatory minimum, he has no argument on appeal.

Slip op. at 14-15.


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