United States v. Juan Carlos Richardson , 273 F. App'x 793 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 9, 2008
THOMAS K. KAHN
No. 07-10621
CLERK
________________________
D. C. Docket No. 06-00044-CR-4-RH/WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS RICHARDSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 9, 2008)
Before BIRCH, CARNES and COX, Circuit Judges.
PER CURIAM:
Juan Carlos Richardson appeals the mandatory life sentence imposed upon
him due to a sentencing enhancement based on two prior felony drug offenses.
Richardson argues that two drug sales, which occurred within one hour and fifteen
minutes of each other on a single afternoon but were prosecuted as separate
offenses, ought not to have counted as two prior convictions for the purpose of 21
U.S.C. § 841(b)(1)(A). We AFFIRM.1
I. BACKGROUND
A federal grand jury indicted Richardson in August 2006, charging him with
seven offenses including: (Count 1) conspiracy to manufacture, distribute, and
possess with intent to distribute cocaine and more than fifty (50) grams of crack
cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(C), 841(b)(1)(A)(iii), and 846;
(Counts 2-4) distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C); (Count 5) possession with intent to manufacture and distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); (Count 6)
possession of a Smith &Wesson .38-caliber revolver in furtherance of the drug
trafficking crime alleged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A); and
1
In August 2007, the district court granted a motion filed by the government pursuant to
Federal Rule of Criminal Procedure 35(b) and entered an order reducing Richardson’s sentence
to a total of 204 months. Because this appeal was pending at the time, the district court lacked
jurisdiction to consider the government’s Rule 35 motion. See United States v. Russell, 776
F.2d 955, 956 (11th Cir. 1985) (per curiam); see also United States v. Turchen, 187 F.3d 735,
743 (7th Cir. 1999); United States v. Batka, 916 F.2d 118, 120 (3d Cir. 1990). Accordingly, the
order reducing sentence is a nullity and of no legal effect. Therefore, the original judgment and
commitment order still presents an “active case or controversy” as to whether the district court
erred in sentencing Richardson to a mandatory minimum sentence of life in prison. See Soliman
v. United States ex rel INS, 296 F.3d 1237, 1242 (11th Cir. 2002) (per curiam) (quotation and
citation omitted).
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(Count 7) being a previously convicted felon in possession of that firearm and its
ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1). Subsequent to
Richardson’s initial appearance and arraignment, the government filed a notice of
his prior convictions as required by 21 U.S.C. §§ 851, 841(b)(1)(B) and (b)(1)(C).
The government’s Information and Notice of Prior Convictions asserted that, for
enhancement under 21 U.S.C. § 841(b)(1)(A), it would prove that Richardson had
twice been convicted on 1 April 1999, in Gadsden County, Florida, “of the offense
of Sale of Cocaine.” R1-16 at 1. The government listed the case number for each
conviction: Case Number 99-66-CFA for the first and Case Number 99-69-CFA
for the second. Id.In November 2006, Richardson pled guilty to all seven counts in the
indictment pursuant to a plea agreement. This agreement set forth the potential
sentences he faced as to each count, including a mandatory minimum term of life
as to Count 1, and a maximum term of 30 years as to each of Counts 2-5 in the
event the court determined that he had the requisite prior qualifying felony drug
convictions under 21 U.S.C. §§ 841 and 851. The agreement did not state that the
April 1999 convictions would in fact so qualify.
In preparing the Presentence Investigation Report (“PSR”), the probation
officer assumed that the enhanced penalties under § 841(b)(1)(A) applied and
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determined that the applicable Guidelines range for Count 1 was life imprisonment
because the mandatory minimum sentence was greater than the maximum term
under the Guidelines. Richardson notified the probation office of his intention to
object to the enhanced penalties applied to his sentence under 21 U.S.C.
§§ 841(b)(1)(A) and 851. The probation officer noted that if the district court
determined that Richardson had only one prior conviction for purposes of the
statute, his Guidelines range would be 262-327 months.
After pleading guilty, but before sentencing, Richardson asserted that his
two previous convictions constituted “a single criminal episode” and should
therefore be counted as only one prior conviction. R1-33 at 1. He stated that on 30
December 1998, law enforcement officers had purchased ten dollars worth of crack
cocaine from him at his home. The same officers had then returned approximately
one hour and fifteen minutes later and purchased another ten dollars worth of crack
cocaine. The state filed a separate information for each of the two sales, and
Richardson pled guilty to both. Richardson contended, however, that the prior
convictions were a single criminal episode because, he asserted, the law
enforcement officers left his home after making the first crack cocaine purchase to
verify that the substance obtained was cocaine and, when they were convinced that
it was, returned to Richardson’s home one hour and fifteen minutes later to make
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the second purchase. Consequently, Richardson concluded, the two convictions
should be considered as one.
The government argued that the prior convictions constituted two separate
offenses, noting that multiple sales, made close in time and to the same person,
were common for crack cocaine dealers. The government added that, even if the
two drug sales had been charged in the same information, they would still have
counted as separate convictions. Finally, the government asserted that the purpose
of the enhancement statute would be met if Richardson’s two convictions were
treated separately because it would punish him for continually engaging in the
same criminal conduct.
At the sentencing hearing, Richardson again argued that the two prior drug
offenses should be treated as a single episode and, therefore, not be counted
separately at sentencing. He contended that, due to the temporal proximity of the
two sales, it was “like law enforcement coming to the door, making a buy and
standing right there and asking them for the second buy.” R4 at 5. The district
court, having reviewed the pleadings of the parties, and heard the arguments of
counsel, determined that the two prior convictions counted as separate drug felony
offenses under the meaning of § 841. The court explained that “the statute
Congress adopted, at least as it has been interpreted by the Eleventh Circuit and,
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for that matter, other circuits, is that it turns on whether these are separate crimes
rather than a single episode, and my conclusion is that these were separate
offenses, two completely separate sales.” R4 at 13. Accordingly, the district court
sentenced Richardson to the mandatory minimum sentence of life imprisonment on
Count 1 and 262 months concurrent imprisonment on Counts 2-5 and 7, and to 60
months consecutive imprisonment on Count 6.
On appeal, Richardson argues that the government failed to prove that his
two 1999 crack cocaine offense convictions constituted two discrete criminal
convictions. Richardson notes that the two sales occurred only one hour and
fourteen minutes apart and involved the same law enforcement officers, defendant,
location, conduct, substance, quantity, arrest, and sentence. He considers the
government’s decision to prosecute each sale separately, resulting in two
convictions, to be “sentence manipulation” and urges us to consider that
“manipulation” in determining whether the government demonstrated that he is the
kind of recidivist Congress intended to target with the mandatory life sentence.
Appellant’s Br. at 24.
II. DISCUSSION
Title 21 U.S.C. § 841(b)(1)(A) provides that a defendant convicted under
that section who has previously been convicted of two or more felony drug
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offenses shall be sentenced to life imprisonment. For a defendant to be subject to
this enhanced sentence, the government must file, prior to the entry of a guilty plea
or the commencement of trial, an information stating the prior convictions relied
upon to support the enhancement. 21 U.S.C. § 851(a)(1). If the defendant denies
the validity of a prior conviction, or disputes any of the details of a prior
conviction, he must file a written response challenging the same. 21 U.S.C.
§ 851(c)(1). The government has the burden of proof beyond a reasonable doubt
on any issue of fact raised by the defendant. Id.; United States v. Sanchez, 138
F.3d 1410, 1416 (11th Cir. 1998). Here, Richardson has not disputed the facts of
the April 1999 convictions as recited by the government, and therefore, the only
remaining issue is the extent to which those convictions are related for the purpose
of 21 U.S.C. § 841.2“Because the question of whether prior convictions [a]re related . . . for the
purposes of [21 U.S.C. §] 841(b)(1)(A) involves a factual inquiry, we review the
2
Richardson also argues that the government was required to prove “beyond a reasonable
doubt” that the two prior convictions were unrelated. He contends that while the government,
under Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), is not required
to prove the existence of prior convictions beyond a reasonable doubt, that holding does not
extend to facts about prior convictions, such as their relatedness, and that the government must
therefore prove relatedness beyond a reasonable doubt. This argument is unavailing. The facts
of Richardson’s prior convictions are not in dispute; both parties agree with respect to the
essential underlying facts. Rather, the dispute in this case centers on the legal question of
whether, under § 841(b)(1)(A), as interpreted by our circuit, those facts render Richardson’s
prior convictions related.
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district court’s decision for clear error.” United States v. Rice, 43 F.3d 601, 606
(11th Cir. 1995). The rule in our circuit is that “if the prior convictions result[]
from acts forming a single criminal episode, then they should be treated as a single
conviction for sentence enhancement under section 841(b)(1)(A).” Id. at 605.
Acts that “are separate in time and locale and [are] acts requiring separate planning
and execution” will not constitute “related convictions.” Id. at 608 (quotation
omitted).
In Rice, the district court had enhanced the defendant’s sentence based on
three prior convictions for drug-related conduct from the fall of 1978. Id. at 603-
04. On appeal, the defendant argued, inter alia, that his convictions should have
been counted as a single conviction because, although he had been convicted and
sentenced by three separate courts for separate incidents that involved different
conduct and occurred on different days in different states, “he [had] received
concurrent sentences which he served in a single state institution.” Id. at 606. We
rejected this argument, reasoning that “[t]o hold otherwise would be overbroad and
fail to promote the actual purpose of sentence enhancement under
section 841(b)(1)(A)–to punish recidivism.” Id. Nevertheless, drug distribution
offenses do not constitute a common scheme or plan simply because they were part
of a single conspiracy or the focus of a single investigation. See id. at 607-08.
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“Because the best marker of recidivism is repetition over time, . . . convictions
which occur on different occasions or are otherwise distinct in time may be
considered separate offenses under section 841(b)(1)(A).” Id. at 608; see also
United States v. Griffin, 109 F.3d 706, 708 (11th Cir. 1997) (per curiam) (holding
that a sentence was properly enhanced under § 841(b)(1)(A) where the two prior
felony convictions relied upon by the district court occurred six days apart and
were consolidated for sentencing).3
Here, the two offenses at issue were separate in time, even though only by
just under ninety minutes. Further, after Richardson and the buyer completed the
first transaction – once cocaine and money had both exchanged hands – the buyer
completely left the premises. For the second transaction, after an hour and
fourteen minutes had passed, the buyer returned and a whole new transaction took
place. This transaction involved the exchange of further drugs and further money,
which would have required “separate planning and execution” from the first. See
Rice, 43 F.3d at 608. Thus, the district court did not clearly err in concluding that
3
Our interpretation of § 841(b)(1)(A) comports with those of our sister circuits. See, e.g.,
United States v. Barr, 130 F.3d 711, 712 (5th Cir. 1997) (involving drug sales on consecutive
days to the same buyer); United States v. Gray, 152 F.3d 816, 821 (8th Cir. 1998) (same). This
judicial construction of § 841 gains further “precedential force” from the fact that it has long
been published and uniformly accepted throughout the country without any attempt by Congress
to alter it. See Watson v. United States, __ U.S. __, __, 128 S. Ct. 579, 585 (2007).
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the two purchases gave rise to two distinct offenses for the purposes of §
841(b)(1)(A).4
III. CONCLUSION
Richardson challenges the mandatory life sentence imposed upon him
pursuant to § 841(b)(1)(A). Because the two prior drug convictions that served as
the basis for the enhancement were discrete criminal acts, we AFFIRM the
judgment of the district court.
4
Our conclusion in this case is further supported by our caselaw regarding sentencing
under 18 U.S.C. § 924(e). Unlike 21 U.S.C. § 841(b)(1)(A), § 924(e), which also provides
enhanced sentences for defendants with prior offenses, specifies that those prior offenses must
have been “committed on occasions different from one another.” Even under that explicit
limitation, we have found offenses taking place on the same day not to be part of a single
criminal episode for the purpose of sentencing under § 924(e). See, e.g., United States v. Spears,
443 F.3d 1358, 1360 (11th Cir. 2006) (per curiam) (defendant previously convicted of having
first robbed two people in a parking lot and then, on the way to his car, only two minutes later,
having robbed a third, was credited with two unrelated prior robbery offenses for the purposes of
§ 924(e)); see also United States v. Pope, 132 F.3d 684, 691 (11th Cir. 1998) (observing that
§924(e) does not require that predicate offenses be separated “by some substantial amount of
time”).
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