Opinion
No. S3 94 Cr. 0165 (SS).
December 14, 2000.
MARY JO WHITE, United States Attorney Southern District Of New York, David B. Anders Assistant United States Attorney; Attorney for the United States of America.
GERALD J. DI CHIARA, ESQ.; Attorney for Defendant Hernan Moreno.
EDWARD S. PANZER, ESQ.; Attorney for Defendant Oscar Moreno.
OPINION AND ORDER
A federal jury convicted defendants Oscar Fabio Moreno and Hernan Moreno of three counts: (1) conspiring to distribute powder cocaine and crack cocaine base in violation of 21 U.S.C. § 846 and 841 ("drug conspiracy count"); (2) maintaining a place for manufacturing, distributing and using narcotics in violation of 21 U.S.C. § 856 and 2 ("stash house count"); and (3) conspiring to tamper with a witness in violation of 18 U.S.C. § 371 ("witness tampering conspiracy count"). This Court previously sentenced defendants to life imprisonment after determining by a preponderance of the evidence that the tried narcotics offenses involved the distribution of over 1.5 kilograms of crack cocaine. Defendants appealed their sentences, and the Second Circuit affirmed their convictions but vacated their sentences in part and remanded for this Court to determine the quantity of powder cocaine involved in the offenses. United States v. Moreno, 181 F.3d 206, 213-16 (2d Cir.), cert. denied, 120 S.Ct. 427 (1999). After the Circuit's remand, the Supreme Court decided Apprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348 (2000).
The issues now before this Court are: (1) whether Apprendi prohibits this Court from sentencing defendants to a term of imprisonment above the most lenient statutory maximum of twenty years specified in 21 U.S.C. § 841(b)(1) based on a judicial, not jury, finding of the drug quantities involved in the tried narcotics offenses; and (2) whether this Court may order defendants' sentences on each count of conviction to run consecutively under Section 5G1.2(d) of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") based in part on a judicial Finding of relevant drug amounts. For the reasons discussed below, this Court holds that under Apprendi. defendants may be sentenced on1y to the most lenient statutory maximum available under 21 U.S.C. § 841(b)(1) twenty years of imprisonment under 21 U.S.C. § 841(b)(1)(C) — for their convictions on the drug conspiracy count. This Court finds, however, finds that Apprendi does not preclude this Court from ordering defendants' sentences on each count of conviction to run consecutively under U.S.S.G. § 5G1.2(d) based in part on a judicial determination of relevant drug quantities.
BACKGROUND
This Court has held a trial and numerous sentencing hearings in this case. This Court has made a plethora of findings and rulings, including most recently the denial of defendants' downward departure motions. This opinion addresses the remaining issues this Court must resolve in order to resentence defendants. The prior proceedings in this case are described in full in the opinion of the Second Circuit. 181 F.3d 206. Set forth here are only the facts relevant to this resentencing.
I Defendant Hernan Moreno made a downward departure motion based on an unusual medical condition and both defendants made downward departure motions based on their post-arrest rehabilitation.
On November 14, 1996, the Government charged defendants Hernan and Oscar Moreno in a three count superceding indictment of: (1) conspiring to distribute five kilograms or more of powder cocaine and fifty grams or more of crack cocaine base in violation of 21 U.S.C. § 846, 841(a), and 841(b)(1)(A); (2) maintaining a place for manufacturing, distributing and using narcotics in violation of 21 U.S.C. § 856; and (3) conspiring to tamper with a witness in violation of 18 U.S.C. § 371. After a trial held from May 19, 1997 until May 30, 1997, a jury found both Oscar and Hernan Moreno guilty of each of the three counts. As was the practice at the time, this Court instructed the jury that the "purity and actual quantity of narcotics involved is not an element of this crime," and, therefore, the jury did not make any findings as to the quantity of drugs involved. The jury also was not asked to determine the type of drugs — powder cocaine, crack cocaine, or both — involved in the offenses.
Prior to sentencing, this Court held a Fatico hearing, see United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), and determined by a preponderance of the evidence that defendants' offenses involved over 1.5 kilograms of crack cocaine. This Court did not make a corresponding determination regarding the amount of powder cocaine involved in the tried offenses. This Court's finding of the quantity of crack cocaine involved subjected defendants to a statutory range often years to life imprisonment under 21 U.S.C. § 841(b)(1)(A). On May 26, 1998, this Court sentenced defendants to life imprisonment based on its prior drug quantity finding.
Defendants appealed their sentences, and the Second Circuit affirmed their convictions but vacated and remanded in part for a determination of the amount of powder cocaine involved in the offenses. Moreno, 181 F.3d at 213-16. The Circuit, relying on United States v. Barnes, 158 F.3d 662 (2d Cir. 1998), a decision rendered after this Court's initial sentencing, held that because the jury did not make a finding as to the type of drugs involved in the offenses, this Court had to assume for sentencing purposes that the conviction was for a narcotics conspiracy involving the type of controlled substance used in the offenses that carried the most lenient statutory maximum sentence for the relevant quantity of that drug under 21 U.S.C. § 841 — here, powder cocaine. Moreno, 181 F.3d at 214-15.
On remand, this Court determined after further proceedings that the tried offenses involved between 500 grams and five kilograms of powder cocaine, subjecting defendants to a statutory range of five to forty years of imprisonment under 21 U.S.C. § 841(b)(1)(B) instead of the ten years to life imprisonment under § 841(b)(1)(A) that this Court had previously determined based on the quantity of crack cocaine. Prior to this Court's resentencing of defendants, however, the Supreme Court issued its decision in Apprendi, 120 S.Ct. 2348. Defendants now argue that because the jury did not make Findings as to the drug quantities involved in the tried offenses, Apprendi requires this Court to sentence defendants to the most lenient statutory maximum available under 21 U.S.C. § 841, i.e., twenty years imprisonment under 21 U.S.C. § 841(b)(1)(C). Defendants also contend that Apprendi prevents this Court from imposing consecutive sentences on each count of conviction under U.S.S.G. § 5G1.2(d).
DISCUSSION
I. Apprendi
Defendants invoke the Supreme Court's recent holding in Apprendi to argue that this Court may not sentence them above the most lenient statutory maximum available under 21 U.S.C. § 841(b)(1) based on this Court's finding by the preponderance of the evidence, as opposed to a jury finding beyond a reasonable doubt, of the drug quantities involved in the tried offenses. This Court agrees.
In Apprendi, the Supreme Court addressed the question of "whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense . . . be made by a jury on the basis of proof beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2351. Apprendi had pled guilty in state court to possession of a firearm for an unlawful purpose, an offense punishable by a term of five to ten years imprisonment. Id. at 2352. After accepting Apprendi's guilty plea, the trial judge held an evidentiary hearing on the issue of Apprendi's purpose for committing the crime. Id. The trial judge found, by a preponderance of the evidence, that Apprendi had committed the crime with the purpose of intimidating the victims because of their race. This finding caused Apprendi's penalty to be increased to a term often to twenty years imprisonment under New Jersey's hate crime law. Id. at 2352-54.
In reviewing Apprendi's sentence, the Supreme Court reexamined its prior decisions and announced as a constitutional rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 2362-63. The Apprendi Court addressed the difference between elements of a crime, which must be proven to a jury beyond a reasonable doubt, and sentencing factors, which affect the sentence imposed by a judge but are not found by a jury. Id. at 2360, 2365. The Court stated that the effect, not the label, is the appropriate focus for determining whether a fact is a sentencing factor or an element; if "the required finding expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict," then the finding is an element that must be proven to a jury beyond a reasonable doubt. Id. at 2365. The Court observed, however, that sentencing factors still exist after Apprendi:
This is not to suggest that the term "sentencing factor" is devoid of meaning. The term appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense. On the other hand, when the term "sentencing enhancement" is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. Indeed, it fits squarely within the usual definition of an "element" of the offense.Id. at 2365 n. 19 (emphasis in original). Thus, under the reasoning of Apprendi, judges may not determine facts that increase a defendant's punishment beyond the maximum statutory sentence of the crime for which a jury convicts. Nevertheless, judges still retain discretion to take into consideration various factors relating to both the offense and the offender in imposing a sentence within the range prescribed by statute. See id. at 2358. Because the trial court's finding that Apprendi had committed a hate crime had the effect of increasing the range of imprisonment to which he was subjected above the statutory maximum, the Apprendi Court reversed the trial court's enhancement under the hate crime law and remanded for resentencing. Id. at 2365-67.
The Supreme Court first coined the term "sentencing factor" in McMillian v. Pennsylvania, 477 U.S. 79 (1986).
II. Application of Apprendi to 21 U.S.C. § 841
The first issue this Court must address is whether the drug quantity attributable to defendants is an element of the narcotics conspiracy count under 28 U.S.C. § 846 and 841, and therefore, under Apprendi, must be found by a jury beyond a reasonable doubt as opposed to a sentencing factor that this Court may properly determine by a preponderance of the evidence. To answer this question, a brief review of the relevant federal narcotics statutes is necessary.
In its briefing, the Government fails to address directly the issue of whether drug quantity is an element under 21 U.S.C. § 846 and 841. Instead, it solely makes a plain error argument, which this Court rejects See infra note 5.
Defendants were convicted of a narcotics conspiracy in violation of 21 U.S.C. § 846, 841(a), and 841(b)(1)(A). Section 846 makes it unlawful to attempt or conspire to attempt to commit any offense found in the Controlled Substances Act, in this case, distribution of narcotics under 21 U.S.C. § 841. The punishment of violating § 846 is the same as for the underlying crime that was the object of the conspiracy. 21 U.S.C. § 846. Section 841(a) makes it "unlawful for any person knowingly . . . to manufacture, distribute, or dispense, or possess . . . a controlled substance." 21 U.S.C. § 841(a). The penalties for violating § 841(a) are set forth in § 841(b). The default imprisonment penalty for crimes involving schedule I or II drugs such as powder cocaine and crack cocaine is set forth in § 841(b)(1)(C), which provides that "[i]n the case of a controlled substance in schedule I or II, . . . except as provided in subparagraphs (A), (B), and (D), such persons shall be sentenced to a term of imprisonment of not more than 20 years . . . . 21 U.S.C. § 841(b)(1)(C). Thus, regardless of the quantity of schedule I or II drug involved in the offense, a defendant convicted of a violation of § 841(a) is subject to a term of zero to twenty years imprisonment under § 841(b)(1)(C). The other penalty provisions under § 841(b)(1) link the term of imprisonment to drug quantity. See 21 U.S.C. § 841(b)(1)(A) (term of imprisonment of ten years to life for violations involving five kilograms or more of powder cocaine or fifty grams or more of crack cocaine); 21 U.S.C. § 841(b)(1)(B) (term of imprisonment of five to forty years for violations involving five hundred grams or more of powder cocaine or five grams or more of crack cocaine); 21 U.S.C. § 841(b)(1)(D) (term of imprisonment of zero to five years for certain quantities of non-schedule I or II controlled substances).
This Court will refer to the drug offenses involved in this case as § 841 violations.
Prior to Apprendi, settled law in the Second Circuit provided that for "crimes charged under 21 U.S.C. § 841, the quantity of the drug involved is not an element of the offense to be determined by the jury beyond a reasonable doubt," but instead "quantity relates solely to sentencing, and as such, is considered a factor to be determined by the sentencing court." United States v. Thomas, 204 F.3d 381. 383 (2d Cir. 2000) (internal quotation marks and citations omitted). All the circuits held this view prior to Apprendi. See United States v. Angle, 230 F.3d 113, 122 (4th Cir. 2000) (collecting circuit court cases). Even after the Supreme Court's decision in Jones v. United States, 526 U.S. 227 (1999), a decision in which the concurring opinion stated the principle that the Supreme Court explicitly adopted in Apprendi, the Second Circuit rejected the contention that Jones "eviscerates this settled law and imposes a categorical new rule mandating that any fact that increases the maximum penalty for an offense must be charged in the indictment and proved to a jury beyond a reasonable doubt." Thomas, 204 F.3d at 383. Other circuits also interpreted Jones narrowly and continued to hold that drug quantity was a sentencing factor, not an element, under § 841. See, e.g., United States v. Hester, 199 F.3d 1287, 1291-92 (11th Cir.), vacated and remanded 121 S.Ct. 336 (2000); United States v. Jones, 194 F.3d 1178, 1186 (10th Cir. 1999), vacated and remanded 120 S.Ct. 2739 (2000); United States v. Williams, 194 F.3d 100, 106-07 (D.C. Cir. 1999).
The holding of Thomas — that drug quantity is a sentencing factor and not an element under 21 U.S.C. § 841 — is no longer good law after Apprendi. The Thomas Court relied primarily on the Supreme Court's statement in Jones that the Court was "not announc[ing] any new principle of constitutional law, but merely interpret[ing] a particular statute in light of a set of constitutional concerns." Jones, 526 U.S. at 252 n. 11. The majority in Apprendi, however, made clear that the Court now "endorse[s] the statement of the rule set forth in the concurring opinions in [ Jones]: `[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed . . . [and] that such facts must be established by proof beyond a reasonable doubt.'" Apprendi, 120 S.Ct. at 2363 (quoting Jones, 526 U.S. at 252-53 (Stevens, J., concurring)).
The Second Circuit has not re-examined Thomas since the Supreme Court issued its decision in Apprendi. A number of other circuits, however, have revisited their prior decisions in light of Apprendi. Without exception, each has held that under Apprendi, drug quantity is an element of § 841 that must be found by a jury beyond a reasonable doubt and not a sentencing factor that can be found by a judge by a preponderance of the evidence. See United States v. Page, ___ F.3d ___, 2000 WL 1682523, at * 6 (6th Cir. Nov. 9, 2000); United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000); Angle, 230 F.3d at 123; United States v. Rogers, 228 F.3d 1318, 1326-27 (11th Cir. 2000); United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000). Additionally, the Supreme Court has vacated and remanded a number of sentences involving judicial determinations of relevant drug quantities under § 841 for further consideration in light of Apprendi. See, e.g., Twitty v. United States, ___ S.Ct. ___, 2000 WL 1210720 (Nov. 27, 2000); Robinson v. United States, ___ S. Ct ___ 2000 WL 1210736 (Nov. 27, 2000); Hughes v. United States, 121 S.Ct. 423 (2000); Whitt v. United States, 121 S.Ct. 423 (2000), Jackson v. United States, 121 S.Ct. 376 (2000); Hester, 121 S.Ct. 336; Smith v. United States, 121 S.Ct. 336 (2000); Clinton v. United States, 121 S.Ct. 296 (2000), Gibson v. United States, 121 S.Ct. 31 (2000); Jones, 120 S.Ct. 2739 (2000).
This Court finds the principles set forth in Apprendi applicable to defendants' sentencings. There is no principled way to distinguish this Court's calculation of the drug quantities involved in the drug conspiracy in this case from the trial court's determination of the racial motivation for defendant's firearm possession crime in Apprendi. Both findings were made by judges, not juries; were proven by a preponderance of the evidence, not beyond a reasonable doubt; and had the effect of increasing the maximum sentence permitted under each statute. Because Apprendi is intervening controlling law, this Court is not bound by the Second Circuit's holding in Thomas. See Ithaca College v. NLRB, 623 F.2d 224, 228 (2d Cir. 1980) (stating that district courts and other inferior courts are bound by decisions of the Court of Appeals in the appropriate circuit unless overruled by an intervening Supreme Court decision or other change in law). Accordingly, this Court joins the circuit courts who have addressed this issue and holds that Apprendi makes clear that drug quantity is an element and not a sentencing factor under § 841.
Turning to the sentencing of defendants on the narcotics conspiracy count, the jury returned a general verdict of guilty but did not make specific findings as to the drug quantities involved in the conspiracy. Thus, the verdict returned by the jury only authorizes this Court to sentence defendants to the most lenient statutory maximum under 21 U.S.C. § 841 — twenty years imprisonment under 21 U.S.C. § 841(b)(1)(C), the only subsection that does not link punishment to drug quantity.
The Government argues that this Court should review defendants' Apprendi claim for "plain error" because defendants failed to object to this Court's instruction to the jury that drug type and quantity are not elements of a narcotics conspiracy under 21 U.S.C. § 846 or 841. This Court rejects the Government's argument. To the extent that the Government desired to subject defendants to a sentence above the most lenient statutory maximum under 21 U.S.C. § 841, the Government, not defendants, had the burden of proving the necessary drug quantities and types. Additionally, the plain error standard is inappropriate here because the error to which defendants object has not yet occurred. Defendants made a timely objection to what they allege would be an error at sentencing; they do not base their claims on any alleged error at trial.
This Court retains discretion, however, to take into consideration various factors relating to both the offense and the offender in imposing a sentence within the range prescribed by the statute. See Apprendi, 120 S.Ct. at 2358. The quantities of drugs involved in the offenses, even if not found by the jury, are still relevant to the sentencing of defendants. As the Fourth Circuit recently explained:
In these cases, where the quantity is not charged, the drug amount is still a proper aggravating or mitigating factor to be considered by the judge in determining a sentence at or below the statutory maximum sentence. Thus, the judge still may determine the amount of drugs by a preponderance of the evidence for the purposes of calculating the offense level and relevant conduct under the United States Sentencing Guidelines. However, if the determination of the judge with respect to quantity leads to a suggested sentence range under the Sentencing Guidelines that is greater than the twenty year statutory maximum [authorized by 21 U.S.C. § 841(b)(1)(C)], the judge only may sentence at or below the statutory maximum penalty, i.e. not more than twenty years.Angle, 230 F.3d at 123 (citation omitted).
Based on this Court's finding of relevant drug quantities, Hernan Moreno has a total offense level of 44 and a criminal history category of I under the Guidelines, and Oscar Moreno has a total offense level of 45 and a criminal history category of II. The Guidelines prescribe a term of life imprisonment for both defendants. As discussed above, because the jury did not make findings as to the drug quantities involved, this Court must sentence defendants on the drug conspiracy count at or below the twenty year maximum term of imprisonment authorized by 21 U.S.C. § 841(b)(1)(C). In exercising its discretion in sentencing defendant within the statutory range of zero to twenty years imprisonment, this Court relies on the evidence presented regarding the quantities of drugs involved in the narcotics conspiracy in determining that defendants should be sentenced to the maximum statutory term allowed under § 841(b)(1)(C) — twenty years of imprisonment. Accordingly, absent some further intervening change in the law, this Court will sentence each defendant to twenty years of imprisonment on the drug conspiracy count. III. Application of Apprendi to Section 5G1.2(d) of the Sentencing Guidelines
This Court will also rely on this evidence of the relevant drug quantities to sentence defendants to the maximum statutory term allowed under § 856 — twenty years of imprisonment — for the stash house count. Unlike the narcotics conspiracy count, the statutory maximum under 21 U.S.C. § 856 for the stash house count is not tied to the quantity of narcotics involved in the offense. 21 U.S.C. § 856(b). Accordingly, this Court will sentence each defendant to twenty years of imprisonment on the stash house count. This Court also intends to sentence defendant to five years of imprisonment on the witness tampering conspiracy count.
This Court must also determine whether Apprendi prohibits this Court from ordering the terms of imprisonment on each of defendants' three counts of conviction to run consecutively pursuant to U.S.S.G. § 5G1.2(d). Section 5G1.2 specifies the procedure for determining the sentence to be imposed on each count in a multiple-count case. The Guideline provides that "[i]f the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently . . . ." U.S.S.G. § 5G1.2(c). If, however, "the sentence imposed on the count carrying the highest statutory maximum is less than" the total punishment suggested by the Guidelines calculation for all of the counts combined, "then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment." U.S.S.G. § 5G1.2(d). This ordering of consecutive sentences pursuant to § 5G1.2(d) is commonly known as "stacking" the sentences on each of the multiple counts. See, e.g., United States v. Rahman, 189 F.3d 88, 154-55 (2d Cir. 1999).
In this case, the Guidelines calculation for each defendant's total punishment is a sentence of life imprisonment, based in part on this Court's calculation of relevant drug quantities. The statutory maximum terms of imprisonment for each count are the following: (1) twenty years on the narcotics conspiracy count pursuant to 21 U.S.C. § 841(b)(1)(C), as limited by Apprendi; (2) twenty years on the stash house count pursuant to 21 U.S.C. § 856; and (3) five years on the witness tampering conspiracy count pursuant to 18 U.S.C. § 371. Section 5G1.2(d) of the Guidelines requires this Court to run the three sentences consecutively to produce a combined sentence approaching the total punishment of life imprisonment called for by the Guidelines. The question this Court must answer is whether Apprendi suspends or alters application of § 5G1.2(d) when the calculation of the total punishment is based, in part, on a judicial determination of the relevant drug quantities.
In calculating defendants' total offense level under the Guidelines, only defendants' base offense level is tied to the relevant drug quantity. Other applicable enhancements, such as adjustments for defendants' roles in the offenses and for their obstruction of justice, are unrelated to the relevant drug quantity.
The Second Circuit has not yet addressed whether Apprendi affects the application of § 5G1.2(d). The other courts, however, who have addressed the issue have held explicitly or implicitly that Apprendi does not prohibit a sentencing court from stacking multiple counts based on a judicial finding of relevant drug quantity pursuant to § 5G1.2(d). In United States v. Page, ___ F.3d ___, 2000 WL 1682523 (6th Cir. Nov. 9, 2000), the Sixth Circuit examined whether the sentences of defendants who were each convicted of one count of a narcotics conspiracy and a second count of the substantive offense of distribution of cocaine base were improper in light of Apprendi. The Sixth Circuit first determined that based on Apprendi, the district court erred by imposing a term of imprisonment exceeding the twenty year maximum set forth in 21 U.S.C. § 841(b)(1)(C) because the jury had not made a finding as to drug quantity. Id. at *6. Reviewing defendants' sentences for plain error because the defendants did not object to the district judge making a relevant drug quantity finding, however, the circuit court found that the error was harmless "because [defendants] can show no meaningful benefit they would receive from vacating their sentences and remanding for resentencing." Id. at * 8. The Sixth Circuit reasoned that if it vacated and remanded the sentences, the district court would resentence defendants to the same term of imprisonment because the court would be required to run the sentences on the two counts consecutively under U.S.S.G. § 5G1.2(d). Id. at *7-8. Likewise, in United States v. Henderson, 105 F. Supp.2d 523 (S.D.W. Va. 2000), the district court rejected the defendant's argument that Apprendi prohibited it from making a finding as to the quantity of drugs for relevant conduct purposes. Id. at 536. The district court determined the relevant drug quantity and corresponding offense level and, based on those calculations, ordered the sentences on defendant's multiple counts to run partially consecutively pursuant to U.S.S.G. § 5G1.2(d). Id. at 536-37.
The Sixth Circuit also addressed the sentence of one defendant who had been convicted only of the narcotics conspiracy and not the substantive drug count. The court determined that this defendant's rights were prejudiced by the district court's imposition of a sentence greater than the prescribed statutory maximum under 21 U.S.C. § 841(b)(1)(C) because U.S.S.G. § 5G1.2(d) only applies to defendants convicted of multiple counts. See Page, 2000 WL 1682523, at *8.
In an unpublished opinion, the Fourth Circuit recently held that Apprendi does not affect the application of U.S.S.G. § 5G1.2(d). United States v. Williams, 2000 WL 1699841, *1 (4th Cir. Nov. 14, 2000). Unlike the rule in the Second Circuit, the Fourth Circuit merely "disfavor[s]" citations to its unpublished opinions. Compare U.S.Ct. of App. 4th Cir. Rule 36(c) ("Citation of this Court's unpublished dispositions . . . in the district courts within this Circuit is disfavored . . . .) with U.S.Ct. of App.2d Cir. § 0.23 ("[Unpublished opinions] shall not be cited or otherwise used in unrelated cases before this or any other court.").
This Court agrees that Apprendi does not prohibit this Court from finding the quantity of drugs involved in the tried offenses by a preponderance of the evidence for the purpose of determining whether defendants' sentences on the multiple counts should run consecutively pursuant to U.S.S.G. § 5G1.2(d). The holding of Apprendi that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and found beyond a reasonable doubt has no effect on the application of § 5G1.2(d). The issue in Apprendi was whether sentencing defendant to a term of imprisonment on a single count above the statutory maximum for the offense charged in that single count based on a judicial determination was unconstitutional. Apprendi, 120 S.Ct. at 2353, 2363. The Supreme Court in Apprendi did not reach the issue raised by § 5G1.2, namely, whether the sentencing court could have permissibly imposed consecutive sentences on the multiple counts to reach the same total term of imprisonment as the sentencing court originally imposed on Apprendi. Id. at 2353. Section 5G1.2(d) addresses a problem that arises totally separate from and subsequent to the focus of the Apprendi decision, which was concerned with a sentencing judge's imposition of an term of imprisonment on an individual count. Section 5G1.2(d) merely determines when the terms of imprisonment on the individual counts in a multi-count case must be run consecutively. U.S.S.G. § 5G1.2.
Apprendi limits the sentence that a judge can impose on a defendant to the statutory range authorized by the jury's guilty verdict. Id. at 2365. The jury's verdict of guilty on each of the three separate offenses in this case authorizes this Court to sentence defendants to a term of imprisonment of up to 45 years each — up to twenty years for the narcotics conspiracy, up to twenty years for the stash house count, and up to five years for the witness tampering conspiracy count. The Sentencing Guidelines, which "have the force of law," see United States v. He, 94 F.3d 782, 988 (2d Cir. 1996), further limit this Court's sentencing discretion. The Sentencing Guidelines provide for the narcotics conspiracy and the stash house counts to be grouped together under § 3D1.2(d) and for those counts to be grouped with the witness tampering conspiracy count under § 3D1.2(c). Although defendants are usually sentenced to concurrent sentences for grouped charges, see U.S.S.G. § 5G1.2 Commentary, § 5G1.2(d) requires courts to sentence defendants to consecutive sentences on grouped charges in situations like this one, where the Guidelines' sentencing range of imprisonment is below the term of imprisonment authorized by the count carrying the highest statutory maximum. U.S.S.G. § 5G1.2(d). Because Apprendi does not affect application of§ 5G1.2(d), this Court will sentence defendants to a total term of imprisonment of 45 years, consisting of a twenty year term of imprisonment on the narcotics conspiracy, to run consecutively to a twenty year term of imprisonment on the stash house count, to run consecutively to a five year term of imprisonment on the witness tampering count.
Defendants contend that stacking of their counts based in part on this Court's determination of relevant drug quantities is an "end-run" around Apprendi. This Court disagrees. This Court's application of § 5G1.2(d) does not take any benefit away from defendants that they would otherwise have without application of the Guideline because defendants have no constitutional right to concurrent sentences. Congress may constitutionally punish related acts as separate crimes if each offense requires proof of some fact that is not necessary to prove another charged offense. See Blockburger v. United States, 284 U.S. 299, 304 (1932). This Court instructed the jury that the Government had to prove beyond a reasonable doubt the elements of each count: (1) for the narcotics conspiracy count, that there existed an agreement or understanding to illegally distribute or possess narcotics with the intent to distribute; that the defendants unlawfully, intentionally, and knowingly joined the conspiracy with the specific intent to further its illegal purpose of distributing or possessing narcotics with the intent to distribute; and that some step in furtherance of the conspiracy was taken by a conspirator in New York; (2) for the stash house count, that the defendants either opened or maintained the location; that they did so for the purpose of manufacturing or distributing narcotics; and that they did so knowingly; and (3) for the witness tampering conspiracy count, that an agreement or understanding to violate the provisions of the law which made it illegal to tamper with witnesses existed; that the defendants unlawfully, intentionally, and knowingly joined the conspiracy with the specific intent to further its illegal purpose of witness tampering; that some step in furtherance of the conspiracy was taken by a conspirator in New York; and that some overt act was committed in furtherance of the conspiracy by either the defendants or another member of the conspiracy. Applying the Blockburger test, each of the offenses are separate and thus may be constitutionally punished separately.
Although Congress is constitutionally permitted to impose separate penalties for the above offenses, this Court must also examine whether Congress has done so here. "The presumption when Congress creates two distinct offenses" based on related behavior "is that it intends to permit cumulative sentences. . . ." Garrett v. United States, 471 U.S. 773, 793 (1985). Cumulative punishment for related acts is forbidden only if Congress did not intend to punish each statutory violation separately. See United States v. Thomas, 757 F.2d 1359, 1371 (2d Cir. 1985) (citing Albernaz v. United States, 450 U.S. 333, 338-40 (1981)). As the Second Circuit explained:
To determine whether it was the aim of Congress to have multiple punishments for conduct that violates two statutory provisions, we first look to the language of those provisions. If the offenses charges are set forth in different statutes or in distinct sections of a statute, and each section unambiguously authorizes punishment for a violation of its terms, it is ordinarily to be inferred that Congress intended to authorize punishment under each provision.Thomas, 757 F.2d at 1371 (internal quotation marks omitted). In this case, because the offenses for which defendants were convicted are found in separate statutes and each unambiguously authorizes punishment for violation of its provisions, defendants have no constitutional right to concurrent sentences on each of these three counts. See 18 U.S.C. § 841(b) (penalty provision for narcotics conspiracy count); 21 U.S.C. § 856(b) (penalty provision for stash house count); 18 U.S.C. § 371 (penalty provision for witness tampering conspiracy count).
This Court also rejects defendants contention that the stacking of defendants' counts is an "end-run" around Apprendi under the circumstances of this case. "[I]n the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." United States v. Armstrong, 517 U.S. 456, 464 (1996) (internal quotation marks omitted). Thus, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Id. (internal quotation marks omitted). Defendants have not alleged that the Government intentionally charged defendants with multiple counts in an effort to increase their sentences. In fact, in a October 12, 2000 pre-sentencing conference with the parties, this Court specifically determined "that there was no intentional charging decisions to drive the sentence up in this case." Additionally, defendants have not alleged that the indictment in their case was multiplicitious, meaning that it unconstitutionally "charges a single offense as an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed." United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999). In any event, because, as discussed above, each of the tried offenses requires proof of an element not contained in the other charged offenses, any multiplicity argument would be meritless. See id. at 146 (applying Blockburger test). Thus, no evidence exists suggesting that stacking of the counts pursuant to U.S.S.G. § 5G1.2(d) is an attempt on the part of the Government (or this Court) to avoid the rules the Supreme Court set forth in Apprendi.
Accordingly, this Court finds that Apprendi has no effect on its application of § 5G 1.2(d) and that this Court is required to apply that Guideline. As noted, Hernan Moreno has a total offense level of 44 and a criminal history category of I, and Oscar Moreno has a total offense level of 45 and a criminal history category of II, subjecting both defendants to a total punishment under the Guidelines of life imprisonment. Pursuant to § 5G1.2(d), this Court is required to run the terms of imprisonment on each count consecutively in an attempt to reach a sentence approaching the term of imprisonment called for by the Guidelines. U.S.S.G. § 5G1.2(d). Accordingly, absent some further intervening change in the law, this Court will exercise its discretion in determining that defendants' conduct warrants the most severe sentence permissible and will sentence defendants to the statutory maximum term of imprisonment on each count of conviction — twenty years on the narcotics conspiracy count, twenty years on the stash house count, and five years on the witness tampering conspiracy count — to run consecutively for a total term of imprisonment of 45 years, pursuant to U.S.S.G. § 5G1.2(d).
CONCLUSION
In light of the Supreme Court's recent decision in Apprendi, this Court finds that drug quantity is an element under 21 U.S.C. § 841 and 846, and not merely a sentencing factor. Because the jury did not make a finding beyond a reasonable doubt as to drug quantity, this Court must sentence defendants within the most lenient statutory maximum under 21 U.S.C. § 841(b) — twenty years of imprisonment under 21 U.S.C. § 841(b)(1)(C). This Court also holds that Apprendi does not prevent this Court from ordering defendants' sentences on each of the counts of conviction to be run consecutively under U.S.S.G. § 5G1.2(d) relying, in part, on this Court's determination of relevant drug quantities.