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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Gustavo A. Gelpí, U.S. District Judge.
Mauricio Hernández Arroyo for appellant.
Myriam Yvette Fernández-González, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.
Before Torruella, concurring, Lipez and Kayatta, Circuit Judges.
LIPEZ, Circuit Judge.
In this appeal of Angel Luis Pizarro-Morales (" Pizarro" ) from his conviction and sentence for conspiracy to distribute cocaine and heroin and for possession with intent to distribute cocaine, we must examine the impact of Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), on the aggravated drug conspiracy and possession convictions. Pursuant to that inquiry, we hold that the district court erred by failing to instruct the jury on the essential element of individualized drug quantity for the aggravated conspiracy count and the essential element of drug quantity for the aggravated possession count before applying a statutory sentencing range that included a mandatory minimum sentence on each count. However, since we " conclude beyond a reasonable doubt that the omitted element[s] [were] uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error[s]," we find the instructional Alleyne errors harmless. Neder v. United States, 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Therefore, we affirm Pizarro's convictions for the aggravated conspiracy and possession charges with enhanced drug quantities under 21 U.S.C. § 841(b)(1)(A).
Still, we must vacate Pizarro's sentence and remand for a fourth sentencing under § 841(b)(1)(A) because the district court overlooked our prior remand order by refusing to engage in credibility assessments with respect to the conspiracy drug quantity the court attributed to Pizarro and by refusing to consider Pizarro's arguments regarding the firearm enhancement.
A. First Sentencing and Appeal
After a ten-defendant trial that lasted approximately seven months in 1999, Pizarro was found guilty of conspiracy to distribute cocaine and heroin and possession with intent to distribute cocaine. In 2002, pursuant to an order of the First Circuit Judicial Council, the case was reassigned for sentencing.
The statutory sentencing ranges for drug conspiracy and possession, prescribed in 21 U.S.C. § 841(b)(1), vary depending upon the amount of drugs involved. For a conspiracy or possession that involves only small or non-quantified amounts of cocaine or heroin, there is no mandatory minimum sentence and the statutory maximum sentence is twenty years of imprisonment. See 21 U.S.C. § 841(b)(1)(C). At the other end of the spectrum, when a conspiracy or possession involves five kilograms or more of cocaine or one kilogram or more of a mixture or substance containing a detectable amount of heroin, the sentencing range runs from a mandatory minimum of ten years to a maximum of life imprisonment. Id. § 841(b)(1)(A).
At sentencing, the district court determined that § 841(b)(1)(A)'s statutory maximum of life imprisonment applied because the conspiracy involved five kilograms or more of cocaine or one kilogram or more of a mixture or substance containing heroin. By a preponderance of the evidence, the court found Pizarro accountable for more than 150 kilograms of cocaine and applied a two-level enhancement for weapon possession and a three-level role enhancement. The court then imposed a life sentence, which at that time was mandated by the Sentencing Guidelines. Pizarro appealed his conviction and sentence. We affirmed Pizarro's conviction but vacated his sentence because of error under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Casas, 425 F.3d 23, 59-60 (1st Cir. 2005).
Pizarro and multiple co-appellants also argued that there was error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Supreme Court held 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 490. Pizarro and his co-appellants asserted that since drug quantity for the conspiracy count was a fact that increased the statutory maximum sentence, it should have been found by a jury beyond a reasonable doubt. They argued that in the absence of such a jury determination, § 841(b)(1)(C)'s default statutory maximum sentence of twenty years should have applied to the conspiracy count.
In response to this argument, we held that " for Apprendi purposes, it is the drug quantity attributable to the entire conspiracy that determines the statutory maximum."
Casas, 425 F.3d at 66 n.58. We concluded that any Apprendi error, if one occurred, was harmless because (1) the evidence overwhelmingly established that the conspiracy involved at least five kilograms of cocaine or one kilogram of heroin, amounts that support a statutory maximum of life imprisonment, and (2) Pizarro and his co-appellants had not pointed to any evidence that the conspiracy-wide quantity was under that threshold amount or offered any argument as to how the jury could have found otherwise. Id. at 65-66. We explained that the appellants did not contest the evidence of conspiracy-wide drug quantity -- the amount that sets the statutory maximum for Apprendi purposes. Id. at 66 & n.58. We therefore ordered that " on remand for re-sentencing the appropriate statutory maximum will be life imprisonment as stated in § 841(b)(1)(A)." Id. at 66.
In remanding, we " clarif[ied] that the jury verdict of guilty did not determine the amount of drugs attributed to each defendant," id. at 64 n.56, which was necessary for sentencing under the Sentencing Guidelines. Cooperating witnesses had testified about drug quantity, and, at sentencing, defendants had called into question the credibility of those witnesses. Id. We explained that the district court had to make credibility determinations in order to
calculate individualized drug quantity, and we made clear that " [a]ny conclusion as to individual drug quantity should be based on review of the entire record." Id. We also observed that a number of the Presentence Reports (" PSRs" ) contained the " defect" of not including " findings as to the quantities or types of drugs attributable to the individual defendants." Id. at 63.
Pizarro and his co-appellants had also argued that the successor judge responsible for the initial sentencing had not adequately familiarized himself with the voluminous record. We held that a replacement judge could become sufficiently familiar with the record to assess credibility, but we declined to analyze the sentencing judge's familiarity because we were vacating the sentences on independent Booker grounds.
Casas, 425 F.3d at 56-57.
B. Second Sentencing and Appeal
In 2006, the district court found Pizarro responsible for more than 4,200 kilograms of cocaine. The court imposed a two-level firearm enhancement and a two-level enhancement for Pizarro's leadership role in the offense. The court resentenced Pizarro to 360 months (30 years) in prison. Pizarro again appealed, and we vacated his sentence for a second time because the district court had not analyzed witness credibility in calculating the drug quantity in the conspiracy foreseeable to Pizarro. United States v. Correy, 570 F.3d 373, 378-82 (1st Cir. 2009). We ordered the district court on remand to make independent credibility assessments as necessary to resolve the facts in dispute. Id. at 379-82, 400, 402.
We also found that Pizarro's PSR had the same problematic lack of support that, on Pizarro's first appeal, we had specifically noted in the PSRs of several of Pizarro's co-appellants. Id. at 398-400. Therefore, we ordered the Probation Office to provide Pizarro with a proper PSR that identified specific drug quantities attributable to him, " include[d] references to the trial record" that supported those drug quantities, and " identifie[d] the trial transcripts which support[ed] any conclusion that he possessed weapons or that weapon possession by co-conspirators was foreseeable to him." Id. at 384, 401. We further ordered that " Pizarro should have a real opportunity to challenge [an] inference [that he could foresee the use of weapons] by arguing the question of foreseeability to a fact-finder willing to consider his arguments," and we left Pizarro's challenge to a leadership enhancement, a fact-specific issue, to be resolved on remand. Id. at 401.
C. Third Sentencing and Appeal
Pizarro's case was reassigned for a second time to a different district court judge because the former sentencing judge had retired. On May 15, 2012, the district court found Pizarro responsible for in excess of 150 kilograms of cocaine and resentenced him under § 841(b)(1)(A) to 280 months (23 1/3 years) of imprisonment as to each count to be served concurrently. Pizarro now appeals for a third time, making numerous arguments, including that the district
court committed an Alleyne error by applying a mandatory minimum sentence without the requisite drug quantity findings by the jury. Notably, that argument challenges the convictions for the aggravated offenses with enhanced drug quantities under § 841(b)(1)(A). He also maintains that the district court committed multiple sentencing errors, some of which resulted from its failure to comply with our remand instructions in Casas and Correy.
We first analyze the claim of Alleyne error related to Pizarro's convictions.
A. The Alleyne Rule
In Alleyne, the Supreme Court held that " any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury."
Alleyne, 133 S.Ct. at 2155. Therefore, a district court errs by applying a statutory mandatory minimum as the sentencing starting point without a jury finding on the fact that triggers that minimum. The Supreme Court held that such a rule was required by the Apprendi principle that " [a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2155 (citing Apprendi, 530 U.S. at 483 n.10, 490). In Alleyne, the Supreme Court expressly overruled its prior holding in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), that the jury did not need to find a fact that increases the mandatory minimum.
Alleyne, 133 S.Ct. at 2155. The government properly concedes that Alleyne error occurred with respect to both the conspiracy and possession counts.
B. The Application of Alleyne to this Appeal
The Supreme Court's decision in Alleyne applies to any case pending on direct appeal at the time Alleyne was decided.
See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (" [A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." ). In Ramirez-Burgos v. United States, 313 F.3d 23 (1st Cir. 2002), we held that a new Supreme Court precedent -- Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) -- applied retroactively to Ramirez's case.
Ramirez-Burgos, 313 F.3d at 29. We had previously affirmed Ramirez's convictions, vacated his sentence, and remanded to the district court for resentencing. Id. at 27. After Ramirez was resentenced and one day after he filed his reply brief in his second appeal, the Supreme Court decided Jones. Id. at 28. Citing Griffith, we held that Ramirez could bring a new claim of jury-instruction error under Jones because Ramirez's case was still on direct appeal at the time Jones was decided. Id. at 29 (citing Griffith, 479 U.S. at 328).
See also Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) (" Final judgment in a criminal case means sentence. The sentence is the judgment." ); United States v. Dodson, 291 F.3d 268, 275-76 (4th Cir. 2002) (holding that where court of appeals affirms convictions but vacates sentence and remands for resentencing on any count, judgment of conviction is not final as to all counts).
Alleyne was decided in 2013 after we had twice vacated Pizarro's sentence and remanded for resentencing, and after Pizarro had filed his opening brief in this third appeal. The fact that the Supreme Court denied Pizarro's petition for a writ
of certiorari after his first appeal, Pizarro-Morales v. United States, 546 U.S. 1199, 126 S.Ct. 1397, 164 L.Ed.2d 99 (2006), does not change the fact that his judgment of conviction was not final at the time Alleyne was decided, given that we had vacated his sentence and remanded for resentencing. See Berman, 302 U.S. at 212 (indicating that a judgment of conviction would not be final if the sentence were vacated); see also Mercer v. Theriot, 377 U.S. 152, 153, 84 S.Ct. 1157, 12 L.Ed.2d 206 (1964) (per curiam) (holding " it is settled that [the Supreme Court] may consider questions raised on the first appeal [after which the Court denied a petition for a writ of certiorari], as well as those that were before the court of appeals upon the second appeal," after which the Court granted a petition for a writ of certiorari (internal quotation marks omitted));
Dodson, 291 F.3d at 276 n.3 (citing Mercer for the proposition that following a second direct appeal brought after a ...