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United States v. Demirjian
Citation: 20 F. App'x 524Docket: No. 01-1531
Court: Court of Appeals for the Seventh Circuit; September 19, 2001; Federal Appellate Court
Hagop Demirjian was convicted of three serious drug offenses: possession of 100 kilograms and 175 kilograms of cocaine with intent to distribute, and conspiracy to distribute over 275 kilograms of cocaine. He received a concurrent 30-year prison sentence. This raises constitutional issues, as facts determining his statutory maximum sentence were not found beyond a reasonable doubt, in light of Apprendi v. New Jersey. Demirjian's counsel filed a no-merit brief under Anders v. California, deeming the appeal frivolous. Demirjian requested new representation but did not specify any additional issues. Appellate counsel assessed that all potential issues lack merit, which was corroborated by an independent review. The evidence against Demirjian was overwhelming, and the jury could disbelieve his claims of coercion. The district judge found Demirjian to be a 'supervisor' in the drug operation, which warranted an increase in his offense level under the Guidelines. The judge did not err in denying a sentencing discount for acceptance of responsibility, given Demirjian's trial denial of culpability and perjured testimony. While the Apprendi issue presents a potential for relief, Demirjian failed to raise this in the district court, limiting appellate review to plain error. It is clear that an error occurred, and it is also 'plain' under Apprendi; however, whether this warrants relief is uncertain. The court questions whether the Anders procedure is appropriate in the presence of a clear error, suggesting that if any non-frivolous issue exists, the case should advance to briefing. The district judge's admission of hearsay evidence during Demirjian's trial, while a mistake, is deemed harmless and insufficient to warrant reversing the conviction. Under the Apprendi ruling, a sentence cannot exceed the statutory maximum unless specific circumstances are established beyond a reasonable doubt. The maximum sentence for distribution of a small amount of drugs is 20 years, allowing for cumulative consecutive sentences up to 60 years for three counts. Demirjian was sentenced to 30 years, which is less than the maximum, negating any substantial benefit from an appeal, even if a jury could have found a lower quantity of drugs involved. The judge's discretion in determining drug quantity for sentencing guidelines remains intact. Although Apprendi suggests a different judgment structure, it does not change Demirjian's effective sentence. Additionally, the absence of parole in the federal system eliminates any potential impact of consecutive versus concurrent sentences on perceived severity. Therefore, without a legitimate interest for appeal, the claim is considered academic, leading to the conclusion that there is no plain error under Johnson and Olano. The request for counsel to withdraw is granted, and the appeal is dismissed as frivolous.