United States v. Portorreal ( 2011 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-2282
UNITED STATES,
Appellee,
v.
JOSE PORTORREAL, a/k/a Jose Ramon Portorreal-Pena,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Derege B. Demissie and Demissie & Church on brief for
appellant.
Jennifer Hay Zacks, Assistant U.S. Attorney, and Carmen M.
Ortiz, United States Attorney on Motion for Summary Disposition for
appellee.
February 15, 2011
Per Curiam. This is a direct criminal appeal in which
the government has moved for summary disposition. We grant its
motion.
I. Background
Jose Portorreal pled guilty to a cocaine conspiracy
offense under 21 U.S.C. § 846. At his plea hearing, he admitted
participating only in a single three-kilogram transaction,
conceding as well that he was personally responsible for that
amount. The government claimed that Portorreal was responsible for
at least five kilograms of cocaine. After accepting Portorreal's
guilty plea, the district court held evidentiary hearings
addressing the disputed drug quantity issue. Crediting the
government's evidence, it found Portorreal responsible for well
over five kilograms of cocaine. After calculating his advisory
guideline sentencing range, the district court imposed a below-
guideline sentence of 272 months, less than 23 years. Portorreal
then filed this appeal.
II. Discussion
On appeal, Portorreal seeks vacatur of his guilty plea,
or at least a remand for resentencing based on the three-kilogram
amount of cocaine he admitted to. His central contention is that
the district court erroneously treated drug quantity as a
sentencing factor and not as an element of his conspiracy offense
during the change-of-plea and sentencing proceedings.
-2-
We review Portorreal's claims, which are raised in this
court for the first time, for plain error. United States v.
Jiminez, 498 F.3d 82, 85 (1st Cir. 2007) (involving defaulted
objections to the plea hearing); United States v. Salas-Fernández,
620 F.3d 45, 48 (1st Cir. 2010) (involving defaulted sentencing
objections). Portorreal has not satisfied the plain error
standard. He misconstrues the import of Apprendi v. New Jersey,
530 U.S. 466 (2000), relies on inapposite case law, and overlooks
the binding precedent in this circuit.
As Apprendi requires, Portorreal received a sentence that
was within the statutory maximum for the drug quantity he admitted
to at his plea hearing. 530 U.S. at 490; see 21 U.S.C. §
841(b)(1)(B) (a 40-year maximum applies to offenses involving at
least 500 grams of cocaine but less than five kilograms).
"The quantity of drugs is not an element of conspiracy
under § 846, nor is it an element of the underlying controlled
substances offense[.]" United States v. González-Vélez, 466 F.3d
27, 35 (1st Cir. 2006). It is a sentencing factor that may be
found by district courts based on a preponderance of the evidence,
even if their factfinding elevates the applicable § 841(b)(1)
mandatory minimum sentence. United States v. Goodine, 326 F.3d 26,
31-34 (1st Cir. 2003) (finding § 841(b)(1)'s "incremental" changes
in the mandatory minimums based on drug quantity to be permitted by
-3-
Harris v. United States, 536 U.S. 545, 554 (2002), which considered
a sentencing provision in a firearm statute, 18 U.S.C. § 924(c)).
The Supreme Court's recent opinion in United States v.
O'Brien, 130 S. Ct. 2169 (2010), is distinguishable. See id. at
2177 (construing the sentencing provision in § 924(c)(1)(B)(ii),
which involved a "drastic, sixfold" increase in the mandatory
minimum for certain firearm offenses, and distinguishing the
"incremental" increase in Harris). Portorreal's reliance on the
O'Brien concurring opinions is also unavailing. See United States
v. Colon, 391 Fed. Appx. 890, 2010 WL 3432816 *1 (1st Cir. 2010)
(unpublished per curiam) (rejecting arguments based on the O'Brien
concurring opinions and stating that Harris, supra, and another
similar Supreme Court case remain "good law" until overruled by the
Court itself).
Finally, United States v. Santo, 225 F.3d 92 (1st Cir.
2000) (majority opinion), is also distinguishable. Unlike
Portorreal, the defendant in that case pled guilty after being
given inaccurate advice about his § 841(b)(1) mandatory minimum
sentence, which prevented him from being able to "realistically
decide whether to plead guilty." Id. at 98-99.
Under Goodine, supra, the claim that defense counsel
rendered ineffective assistance by not objecting to the district
court's treatment of drug quantity as a sentencing factor
necessarily fails. Consistent with our usual practice, we decline
-4-
to consider Portorreal's remaining ineffective assistance claims,
without prejudice to his raising those claims in a timely post-
conviction motion filed under 28 U.S.C. § 2255. See United States
v. Martins, 413 F.3d 139, 155 (1st Cir. 2005) (declining to address
an ineffective assistance claim on a record that was not fully
developed).
The district court's judgment is affirmed. See 1st Cir.
Loc. R. 27.0(c).
-5-