United States v. Manuel Gonzalez, Also Known as "Luis Enrique Dirocie Bello," 1 Also Known as "Tito," Robinson Jimenez
Docket: 03-1356
Court: Court of Appeals for the Second Circuit; August 22, 2005; Federal Appellate Court
Manuel Gonzalez appeals his conviction for conspiracy to distribute and possess with intent to distribute cocaine base, following a guilty plea. He is serving a twenty-year sentence, reduced from a potential 262-to-327 month range due to a statutory minimum tied to his prior felony drug conviction. On appeal, Gonzalez does not contest his sentence directly but argues that the district court wrongly denied his motion to withdraw his guilty plea. He claims that recent rulings, specifically Apprendi v. New Jersey and United States v. Thomas, imply his plea was not knowing or voluntary because he did not admit to the statutory drug quantity and was misinformed about his right to a jury determination of that quantity.
The government argues that quantity is not an essential element of a drug offense under § 841(b)(1)(A) when a defendant receives a mandatory minimum sentence that aligns with an unquantified crime under § 841(b)(1)(C). However, the court disagrees, asserting that the quantity provisions are indeed elements that must be pleaded or admitted to support a conviction for aggravated drug offenses. It emphasizes that statutory drug quantity must be established in all aggravated § 841 prosecutions. Consequently, the court concludes that Gonzalez's guilty plea cannot support a conviction under § 841(b)(1)(A) without an admission to the drug quantity element.
Gonzalez disputed the statutory quantity of drugs involved in his case and did not make an admission that would support a conviction for a higher drug charge under § 841(b)(1)(A) or (b)(1)(B). His plea could only support a lesser charge under § 841(b)(1)(C), which has a different sentencing range. The court found that drug quantity is an essential element of the aggravated offense, and Gonzalez was misinformed about his rights regarding the proof of that quantity. Consequently, his guilty plea was deemed not knowing, voluntary, or sufficient for a conviction under § 841(b)(1)(A). The government declined to accept a lesser plea, which led to the court’s decision to grant Gonzalez's motion to withdraw his plea. The case is remanded for the district court to vacate Gonzalez's conviction, allow him to withdraw his plea, and permit the government to prosecute the conspiracy charge under § 841(b)(1)(A) or potentially accept a plea for an unquantified drug conspiracy under § 841(b)(1)(C), which would involve a different sentencing range. The background details include a July 16, 1998, drug sale attempt, where Gonzalez agreed to sell one kilogram of crack cocaine, provided a sample, and later fled from DEA agents before arrest. He was indicted alongside co-defendant Jimenez for conspiracy to distribute cocaine base, and he pleaded guilty while disputing the quantity involved.
The filing of prior felony information significantly impacted Gonzalez's potential sentencing. If convicted of conspiring to traffic fifty grams or more of crack under 21 U.S.C. § 841(b)(1)(A), his sentencing range would increase from a minimum of ten years to a minimum of twenty years. Gonzalez's counsel argued that this filing was retaliatory due to his rejection of a plea deal, which would have stipulated a lower drug quantity that could lead to approximately twelve and a half years' imprisonment. Gonzalez sought to plead guilty only to a 0.4-gram sample, which would fall under § 841(b)(1)(C), resulting in a potential sentence of about two years. He denied any intent to sell the informant a kilogram of crack, claiming his intention was to defraud the customer with a counterfeit substance.
During the plea allocution, the district court informed Gonzalez that if the drug quantity was resolved against him, he would face a minimum of twenty years in prison. Gonzalez acknowledged this, agreeing to plead guilty to providing a sample. The court ensured his competency and understanding of his rights, emphasizing the severe penalties under § 841(b)(1)(A), including a maximum life sentence, lifetime supervised release, a $4 million fine, and a mandatory special assessment of $100. The court reiterated the minimum sentencing requirements based on the government's drug quantity view, which Gonzalez confirmed he understood.
At the sentencing hearing on November 15, 2001, the district court evaluated the disputed drug quantity issue based on recorded calls discussing a one-kilogram transaction, testimonies of prior sales to the informant, and incriminating statements made by Jimenez post-arrest.
Gonzalez testified that since 1997, he sold a counterfeit substance called "nacona," claiming that his dealings did not involve real crack cocaine. He asserted that on July 16, 1998, he provided a DEA informant with a small sample of crack solely to facilitate a deal for a kilogram of nacona. In response, the government argued that Gonzalez's claims were implausible, as consistent sales of counterfeit drugs would undermine his credibility as a dealer.
The trial judge noted the complexities of the case, emphasizing that the burden of proof was critical. He indicated doubts about concluding a conspiracy involving a kilogram of crack based on the evidence presented. Ultimately, the judge found Gonzalez to be not credible, citing inconsistencies in his testimony, and determined that the defendants conspired to sell one kilogram of actual narcotics.
Gonzalez later sought to withdraw his guilty plea, contending that his allocution did not adequately support a conviction under 21 U.S.C. § 841(b)(1)(A) due to his lack of admission regarding the necessary drug quantity for enhanced penalties. During a January 23, 2003, status conference, the district court expressed concern about the clarity of the plea process and the specificity concerning the charges. However, after reviewing further submissions, the district court denied Gonzalez's motion on April 17, 2003, asserting that the law did not require an explicit admission of drug quantity to apply the mandatory minimum sentence under § 841(b)(1)(A).
The defendant was aware he would face a 20-year mandatory minimum sentence if it was determined he knowingly sold crack cocaine rather than a non-controlled substance. Upon reconsideration, the court found no legitimate basis to claim a defect in the plea allocution and denied the defendant's request to withdraw his plea, as he had admitted guilt and had litigated the matter through a Fatico hearing. The district court sentenced Gonzalez to 240 months' imprisonment, 10 years of supervised release, and a $100 special assessment on May 30, 2003, after determining his offense level to be 38 based on drug quantity and an attempt to obstruct justice. Although the court found a downward departure from the sentencing guidelines warranted, it concluded that the statutory mandatory minimum of 240 months under § 841(b)(1)(A) limited its discretion.
Regarding the legal standard for withdrawing a guilty plea, Federal Rule of Criminal Procedure 11(d) allows withdrawal prior to sentencing if the defendant shows a fair and just reason. The decision to permit withdrawal is at the district judge's discretion, subject to deferential review. However, the denial of Gonzalez's motion to withdraw his plea was deemed to rest on a legal error concerning the requirement to prove drug quantity beyond a reasonable doubt for conviction under § 841. The law dictates that a defendant cannot be convicted or face a mandatory minimum sentence under § 841(b)(1)(A) or (b)(1)(B) unless the prescribed drug quantity is proven to a jury or admitted by the defendant. Title 21 U.S.C. § 841(a) criminalizes the manufacture, distribution, or possession with intent regarding controlled substances, specifically including crack cocaine.
Three subsections of § 841 address penalties for trafficking in crack cocaine, differentiated by the amount of drugs involved. For offenses involving "50 grams or more," § 841(b)(1)(A) mandates: (1) a ten-year minimum to lifetime maximum for any offense; (2) a twenty-year minimum to lifetime maximum if the drugs cause death/serious injury or if the defendant has a prior felony drug conviction; (3) a life sentence if both conditions apply; and (4) a life sentence without release for defendants with two prior felony drug convictions. For "5 grams or more," § 841(b)(1)(B) provides: (1) a five-year minimum to forty-year maximum for any offense; (2) a ten-year minimum to lifetime maximum with a prior felony; (3) a twenty-year minimum to lifetime maximum if the drugs cause death/serious injury; and (4) a life sentence under the same conditions as above. For lesser amounts, § 841(b)(1)(C) states: (1) a zero minimum to twenty-year maximum for any offense; (2) a zero minimum to thirty-year maximum with a prior felony; (3) a twenty-year minimum to lifetime maximum for drugs causing death/serious injury; and (4) a life sentence under the same conditions as above. Each subsection operates independently, with corresponding minimums and maximums linked, and Congress did not intend to allow mixing sentencing ranges from different subsections. The Ninth Circuit has affirmed this interpretation, emphasizing that drug quantity serves distinct roles for determining minimums and maximums.
Judge Becker, in his concurring opinion for United States v. Vazquez, argues against the notion that Congress intended for drug type and quantity to be treated inconsistently as either sentencing factors or elements of a crime. He asserts that no statute supports such a dual interpretation. He emphasizes that facts affecting a defendant's sentence should be classified as either elements or not, but not both.
Following the Supreme Court's ruling in Apprendi v. New Jersey, which mandates that any fact increasing a crime's penalty beyond the statutory maximum must be proven to a jury beyond a reasonable doubt (except for prior convictions), this court reexamined the classification of drug quantities under § 841. Prior to Apprendi, courts generally viewed drug quantity as a sentencing factor determined by a judge. However, Apprendi necessitated a reevaluation, concluding that if a fact could lead to a greater punishment than that authorized by the jury's verdict, it must be treated as an element of the crime requiring jury proof.
In United States v. Thomas, the court unanimously determined that drug quantities specified in § 841(b)(1)(A) and (b)(1)(B) should not be viewed merely as sentencing factors but as essential elements of aggravated offenses.
Thomas established that under the principle of Apprendi, drug quantity must be included in the indictment and determined by a jury when it leads to a punishment exceeding the statutory maximum. Importantly, Thomas determined that drug quantity is an essential element of offenses under 21 U.S.C. § 841, impacting all prosecutions involving aggravated offenses, thereby safeguarding against potential constitutional challenges. This interpretation aligns with the principle of constitutional avoidance, which encourages courts to avoid constitutional questions when a plausible statutory interpretation exists.
In United States v. Outen, the court affirmed Thomas's interpretation, noting that drug quantity is an element in aggravated offenses under § 841(b)(1)(A) and (b)(1)(B), as it allows for sentences above a statutory maximum. Consequently, the offense defined in § 841(a) is no longer complete without considering drug quantity, which is delineated in § 841(b). The court also acknowledged that adding a drug quantity element results in a distinct criminal charge compared to offenses without such considerations.
Subsequent rulings, like United States v. Gaskin, emphasized that charges augmented by additional elements alter the nature of the original charges. The court has ruled that a defendant cannot be convicted of an aggravated offense unless the quantity is either proven to a jury or admitted by the defendant. This principle was reiterated in cases such as United States v. McLean and United States v. Yu, where the courts maintained that guilty pleas must reflect an admission of drug quantity to support the charged offenses. Consequently, in Gonzalez's case, a conviction for the § 841(b)(1)(A) conspiracy charge, along with a corresponding increased sentence, necessitated either a jury finding or an admission regarding the specific drug quantity.
A preponderance finding regarding drug quantity does not necessitate the imposition of mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A) or (b)(1)(B). The government concedes that drug quantity must be treated as an element of aggravated § 841 offenses per Apprendi, but argues based on Harris v. United States and related cases that drug quantity does not need to be proved as an element when it merely triggers a mandatory minimum sentence that does not exceed the maximum for an unquantified offense. This reasoning influenced the district court's reconsideration of Gonzalez's motion to withdraw his guilty plea; however, the earlier ruling in United States v. Thomas established that drug quantity must be pleaded and proved beyond a reasonable doubt in aggravated § 841 cases. Since Gonzalez did not admit to the drug quantity, his guilty plea was inadequate for a § 841(b)(1)(A) conviction.
The excerpt further discusses Harris, where the Supreme Court ruled that facts increasing a mandatory minimum sentence, without exceeding a statutory maximum, can be determined by a judge rather than a jury, thus not violating the Constitution. This ruling, aligned with McMillan v. Pennsylvania, maintains that such aggravating factors can be treated as sentencing factors. The distinction made in Harris between facts that only affect mandatory minimums and those that impact statutory maximums is noted as logically complex, with some justices expressing disagreement with the plurality's reasoning.
Raising the floor or ceiling of sentencing exposes the defendant to increased punishment, which is a critical point in this case, distinguishing it from the Harris paradigm. Unlike 18 U.S.C. § 924(c)(1)(A), 21 U.S.C. § 841 increases both the mandatory minimum and maximum sentences based on drug quantity, thus expanding the defendant's sentencing range compared to a conviction for an unquantified drug crime. The Apprendi ruling states it is unconstitutional for legislatures to remove from juries the determination of facts that elevate the penalty range for defendants. Therefore, a fact like drug quantity, which raises the range of penalties, must be treated as an element of the crime requiring proof beyond a reasonable doubt.
The government argues that previous cases (United States v. Luciano and United States v. King) support treating drug quantity as a sentencing factor due to the minimums not exceeding maximums under § 841. However, the validity of these precedents is questionable. Luciano's conclusion about the Apprendi rule was made in a habeas corpus context, and its relevance is undermined by another ruling stating Apprendi does not apply retroactively in such reviews. Additionally, in King, the jury had already established the drug quantity beyond a reasonable doubt, making the discussion on the Apprendi requirement regarding knowledge of the drug quantity non-binding.
Developments in Apprendi jurisprudence indicate a broader application of the Apprendi rule than previously understood. The case of United States v. Luciano concluded that the Apprendi rule does not apply to 21 U.S.C. § 841 mandatory minimums, interpreting ambiguous phrases related to sentencing exposure. However, subsequent Supreme Court plurality opinions have emphasized that facts determining the maximum sentence are elements of the crime, not just those leading to actual increased sentences. In Harris, the Court asserted that such facts set the outer limits of a sentence, while Sattazahn recognized any fact increasing maximum punishment as an element. Furthermore, in Shepard, it was noted that any fact raising the potential federal sentence must be found by a jury. Thus, it cannot be concluded that Apprendi applies only to prosecutions resulting in sentences exceeding maximums, nor that district courts should treat drug quantity merely as a sentencing factor regarding mandatory minimums. Instead, the Apprendi rule applies to any fact that alters the applicable sentencing range, establishing drug quantity as an element in the context of increased ranges under § 841(b)(1)(A) and (b)(1)(B).
Booker reaffirms the principle established in Apprendi that any fact, excluding prior convictions, necessary to impose a sentence exceeding the maximum authorized by a guilty plea or jury verdict must either be admitted by the defendant or proven to a jury beyond a reasonable doubt. The Supreme Court's ruling applies broadly to all applications of the federal Sentencing Guidelines, which were deemed suspect under Apprendi due to their mandatory nature that imposed binding requirements on sentencing judges. To rectify this, the Court did not dismantle the Guidelines but instead converted maximum sentencing ranges to advisory, while allowing minimums to remain mandatory.
In United States v. Thomas, the court ruled that drug quantity must be treated as an element in all aggravated charge prosecutions, not just when sentencing exceeds the jury-prescribed maximum. This view is supported by other cases where drug type and quantity are required to be submitted to a jury for proof beyond a reasonable doubt. While some courts have considered drug quantity as a flexible factor during sentencing, this interpretation is less favored compared to the positions of the Fourth, Ninth, and D.C. Circuits, which advocate for strict adherence to the principle that jury findings must support mandatory minimum sentences.
In United States v. Martinez, the court determined that a defendant was misinformed about facing a mandatory minimum sentence of ten years and a maximum of life when the actual maximum was twenty years with no mandatory minimum. Although this error did not affect substantial rights, it underscored the necessity for clarity in sentencing information. Judge Becker, in a concurring opinion in United States v. Vazquez, rejected the notion that drug type and quantity should only be treated as "element-like factors" if they increase the statutory maximum penalty. The ruling emphasized that prosecutors, defendants, and judges need to know which facts must be proven to a jury before sentencing, ensuring proper legal processes are followed. The court reiterated that drug quantity is an essential element that must be either pleaded or admitted for convictions or sentences under certain statutes, specifically 841(b)(1)(A) or (B). If a defendant is convicted of a lesser unquantified drug charge, sentencing falls under 841(b)(1)(C), which generally entails no mandatory minimum. The discretion of the district court in sentencing under 841(b)(1)(C) does not obligate it to impose a twenty-year term based on unproven drug quantity.
Regarding Gonzalez's plea to a 841(b)(1)(A) offense, the court noted a significant defect under Rule 11(b)(1)(C). The court highlighted that defendants must be given a proper mix of information concerning their plea, and failure to inform them correctly can warrant withdrawal of the plea if the error is not deemed harmless. In a similar case, Harrington, the defendant had also been misled about his sentencing range due to unpleaded drug quantities, leading to a ruling that his plea was invalid under Fed. R. Crim. P. 11, with the correct sentencing range determined to be zero to thirty years.
The court addressed the requirements under Rule 11 regarding informing defendants of maximum and mandatory minimum penalties. It emphasized that misinformation about mandatory minimum sentences is particularly significant in a defendant's plea decision-making and cannot be considered harmless error. In this case, the defendant, Gonzalez, was misinformed about the operation of the mandatory minimum and maximum sentences under 841(b)(1)(A), constituting a violation of Rule 11.
While the district court correctly informed Gonzalez about the sentencing range for the charged crime, it failed to ensure he understood his right to a jury trial regarding the statutory drug quantity. The court's incorrect assertion that a judge's preponderance finding was sufficient for sentencing instead of the jury's proof beyond a reasonable doubt misled Gonzalez and affected his decision to plead guilty. The court concluded that this misinformation was significant to Gonzalez's decision-making process, particularly concerning his willingness to contest the drug quantity, which was crucial for determining his sentence. If he had been aware that the government needed to prove the drug quantity to a jury, it is likely he would have chosen to go to trial rather than plead guilty. The record indicated that Gonzalez’s strategy was sound in contesting the drug quantity, further highlighting the impact of the misinformation on his plea.
The district court erred in concluding that Gonzalez knowingly and voluntarily pleaded guilty to an aggravated drug offense under 21 U.S.C. § 841(b)(1)(A), as he was misinformed that a judicial finding on drug quantity (rather than a jury verdict or plea) would trigger the minimum twenty-year sentence. Consequently, the court should have granted his motion to withdraw the guilty plea.
Under Federal Rule of Criminal Procedure 11(b)(3), a court must establish a factual basis for a plea before entering judgment. Gonzalez’s judgment reflects a conviction for conspiracy to traffic crack cocaine, where drug quantity is a critical element under § 841(b)(1)(A). Previous rulings indicate that a drug conspiracy referenced under § 841(b)(1)(A) constitutes a distinct and aggravated offense compared to an unquantified conspiracy. Gonzalez's failure to admit the statutorily prescribed drug quantity, coupled with his challenge to it, meant his plea lacked an adequate factual basis for a conviction.
The key conclusions are:
1. Drug quantities in § 841 are elements that must be pleaded and proven to a jury or admitted by the defendant for aggravated drug offenses, not merely for offenses with sentences exceeding those for unquantified crimes.
2. The sentencing ranges in § 841 for aggravated offenses cannot be split such that drug quantity serves as an element for maximum sentencing and a factor for minimum sentencing.
3. Gonzalez, misinformed about his rights regarding the statutory drug quantity, did not make a knowing or voluntary plea, which was insufficient for a conviction. Since the government did not accept a plea to an unquantified offense, he should have been permitted to withdraw his guilty plea.
The case is remanded with instructions to vacate the conviction, allowing the defendant to withdraw his guilty plea and enabling the government to pursue a trial on the aggravated charge. During the district court hearing, the defendant identified himself as "Luis Enrique Dirocie Bello," although the judgment is recorded under "Manuel Gonzalez." The court has directed the Clerk to amend the case caption to reflect that Gonzalez is also known by Dirocie Bello. The term "aggravated drug offense" is used to describe crimes under 21 U.S.C. § 841(b)(1) that incur enhanced penalties based on drug trafficking amounts. The opinion details how specific subsections of § 841(b)(1) define and penalize crack trafficking.
Gonzalez's prior legal history includes arrests in 1997 for selling controlled substances, with charges dismissed in some instances due to lack of evidence. The parties agree on the district court's Guidelines calculation, and the government has not cross-appealed the departure decision. Notably, Rule 11 has undergone revisions since Gonzalez's plea, but these changes do not impact the relevant provisions concerning plea withdrawal. The opinion references the Third Circuit's ruling in *Vazquez*, which found it erroneous to impose a sentence exceeding the maximum without jury findings on drug quantity, while the Fourth Circuit's decision in *Promise* indicates that plain error affecting substantial rights may not always lead to corrective action.
An indictment explicitly stating a threshold quantity of 50 grams of cocaine base would have led a jury to convict Promise beyond a reasonable doubt. Judge Luttig concurred, indicating that if 21 U.S.C. § 841 were interpreted to set a maximum life sentence, the specified drug quantities function as sentencing factors rather than elements of the offense. The discussion does not explore whether this interpretation aligns with the Supreme Court's rulings in Blakely and Booker. The court emphasizes that a statute cannot logically treat the same fact as both an element and a sentencing factor. In the case of Thomas, the defendant did not object to being sentenced based on an unpleaded drug quantity, leading to a plain error review, which requires showing that the error affected substantial rights. Gonzalez preserved his challenge, so the plain error standard does not apply in his case. The court notes the impracticality of determining whether drug quantity is an element based solely on the imposed sentence. The implications of the Apprendi rule may extend beyond just facts resulting in sentences above statutory maximums, affecting any facts that influence the sentence range. The statute mandates varying minimum sentences for firearm use in relation to violent or drug crimes, with no specified statutory maximum, suggesting a potential lifetime maximum.
A sentence for a violation of 18 U.S.C. § 924(c)(1)(A) is directly linked to the applicable mandatory minimum. The case Harris v. United States highlights that a change in the quantity of crack cocaine from five grams or more to fifty grams or more elevates the sentencing range for prior felons from ten years to life to twenty years to life under 21 U.S.C. § 841. Both thresholds increase the sentencing range above the zero-to-thirty-year term for unquantified crack offenses. This exception is deemed insignificant because it is unlikely that Congress intended drug quantity to be a defining element of aggravated offenses in most cases. The excerpt further indicates that, while Congress's precise intentions in drafting § 841 are uncertain, it did not design the statute to conform to a constitutional framework that was not in place at the time. The quantity of crack not only raises the minimum incarceration sentence but also increases the overall sentencing range, affecting potential fines depending on the offender's prior drug felony status. The excerpt also addresses concerns that adopting the government's position could hinder plea deals for lower-level participants in drug conspiracies, as it would require district courts to impose mandatory minimum sentences based on a preponderance of evidence regarding drug quantity. Finally, it references the evolving legal interpretations surrounding the application of Apprendi and the implications of judicial factfinding in determining sentencing enhancements.
The plurality opinion in Harris v. United States acknowledges that the Apprendi principle applies to facts that determine the maximum limits of a sentence, although it specifies that not all applications of the Guidelines raise Apprendi concerns. The Court, in United States v. Booker, recognized scenarios where a district court could enhance a sentence within the range permitted by the jury's findings. However, the ruling rendered the Guidelines advisory rather than mandatory by severing provisions from 18 U.S.C. § 3553(b)(1) and § 3742(e). Consequently, while plain Booker error is identified only when a mandatory Guidelines sentence materially differs from one that would be imposed under an advisory scheme, the court has ordered resentencing without requiring such a comparison when confronted with an Apprendi challenge. This interpretation aligns with similar conclusions reached by the Eighth and Tenth Circuits. The government argues that the ruling in Harrington conflicts with previous decisions in Luciano and King, but the court deems those earlier cases to hold little weight in light of the current decision, which was circulated among all active members prior to filing.
