United States v. Davila ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-13-2002
    USA v. Davila
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 00-3762
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    Recommended Citation
    "USA v. Davila" (2002). 2002 Decisions. Paper 499.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/499
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 00-3762
    UNITED STATES OF AMERICA,
    Appellee
    v.
    IRIS YOLANDA DAVILA,
    Appellant
    ___________________
    On Appeal from the Convictions and Judgment
    of Sentence Entered in the United States
    District Court for the Eastern District of Pennsylvania
    Crim. No. 99-cr-00505-2
    District Judge: Hon. Franklin S. Van Antwerpen
    Argued: July 15, 2002
    Before: McKee, Weis, and Duhe, Circuit Judges
    (Filed: August 13, 2002)
    Rania M. Major-Trunfio (Argued)
    2732 N. 5th Street
    Philadelphia, PA 19133
    Counsel for Appellant
    Patrick L. Meehan
    Laurie Magid
    Robert A. Zauzmer
    David E. Troyer (Argued)
    Office of the United States Attorney
    615 Chestnut, Suite 1250
    Philadelphia, PA 19106
    Counsel for Appellee
    OPINION OF THE COURT
    McKee, Circuit Judge.
    A jury convicted Iris Yolanda Davila of two counts of an indictment charging
    drug related offenses. On appeal, Davila raises various sentencing issues, and argues for
    a new trial on the grounds of ineffective assistance of counsel. For the reasons that
    follow, we will affirm.
    I.
    Inasmuch as we write only for the district court and the parties who are familiar
    with the case, we need not recite the factual background except where helpful to our
    brief discussion. We exercise plenary review over sentencing issues Davila raises
    regarding the application of Apprendi v. New Jersey, 
    530 U.S. 466
     (2000). See United
    States v. Barbosa, 
    271 F.3d 438
    , 452 (3d Cir. 2001). We also exercise plenary review
    over the district court’s interpretation of the Sentencing Guidelines, however, the court’s
    factual findings are reviewed for clear error. See United States v. Butch, 
    256 F.3d 171
    ,
    177 (3d Cir. 2001).
    II.
    One month after Davila was convicted, the Supreme Court decided Apprendi v.
    New Jersey, 
    530 U.S. 466
     (2000). Davila argues that under Apprendi, the jury was
    required to find beyond a reasonable doubt the specific quantity of drugs attributable to
    her.
    Apprendi held that, with the exception 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." Apprendi, 
    530 U.S. at 490
    .
    Apprendi specifically expressed no view of the constitutionality of the Sentencing
    Guidelines, however, as the Guidelines were not before the Court. See 
    id.
     at 497 n.21.
    The court in Apprendi also concluded that nothing about the notion of requiring a jury
    verdict for every element of an offense suggests that a judge may no longer use his or her
    discretion to adjust a sentence within the appropriate sentencing range for a particular
    offense. See 
    id. at 481
    .
    In interpreting the contours of Apprendi, we have stated that the Guidelines are
    essentially a codification of a judge’s traditional ability to exercise discretion in
    sentencing. See Williams v. United States, 
    235 F.3d 858
    , 862 (3d Cir. 2000); United
    States v. Mack, 
    229 F.3d 226
    , 243 (3d Cir. 2000) (Becker, J., concurring). We have held
    that, so long as the application of the Guidelines does not increase a sentence beyond the
    statutory maximum, Apprendi is not implicated. See Williams, 
    235 F.3d at 863
    , citing
    United States v. Cepero, 
    224 F.3d 256
    , 267 n.5 (3d Cir. 2000).
    Davila argues that Apprendi requires that the specific quantity of drugs, here 14
    kilograms of heroin and crack cocaine respectively, should have been decided by a jury
    based on proof beyond a reasonable doubt rather than by the court under a preponderance
    of the evidence standard. Following trial, the court held an evidentiary hearing and heard
    testimony regarding the quantity of drugs involved in the conspiracy. At sentencing, the
    court found that the government had shown by a preponderance of the evidence that the
    conspiracy involved 14 kilograms of heroin and 14 kilograms of crack cocaine, and that
    this amount should be attributed to Davila. The court then sentenced Davila to life
    imprisonment. However, since life imprisonment was already prescribed as the
    maximum penalty under the statute, the court’s finding regarding the specific quantity of
    drugs had no impact on the maximum penalty Davila faced. Therefore, Apprendi is not
    applicable here.
    Davila also argues that the court’s finding attributing the 14 kilograms of heroin
    and crack cocaine to her is not supported by the evidence. Davila argues that the
    government’s evidence regarding the amount of drugs involved in the conspiracy did not
    specifically implicate her as the person who sold those drugs.
    This court has recognized that it can often be difficult to precisely ascertain the
    amount of drugs involved in large-scale conspiracies. So long as calculations are not
    based upon "mere speculation," we have held that "some degree of estimation must be
    permitted, for the government usually cannot seize and measure all the drugs that flow
    through a large drug distribution conspiracy." United States v. Collado, 
    975 F.2d 985
    ,
    998 (3d Cir. 1992). In addition, where a conspiracy is proven, the district court may take
    into consideration all reasonably foreseeable acts of co-conspirators in furtherance of the
    conspiracy in assessing a defendant’s culpability. See U.S.S.G. 1B1.3(a)(1)(B) (2001).
    Angel Prieto, a member of the drug ring, testified on behalf of the government at
    trial. Prieto testified that during the relevant time period, Davila and her co-conspirator,
    Axel Santos-Cruz, would receive quantities of « kilogram to 1 kilogram of both heroin
    and cocaine once or twice a week. Prieto further testified that Davila would then
    convert the cocaine into crack cocaine, and sell it. Prieto’s testimony was corroborated
    by the testimony of undercover Trooper Kelly Cruz and Trooper Jay Lownsbery.
    Prieto’s testimony was also corroborated by 45 transcripts of recorded telephone calls.
    This evidence supports the finding that throughout the course of the conspiracy, Davila
    and her co-conspirator sold 14 to 56 kilograms of both heroin and crack cocaine. The
    district court attributed the lower figure of 14 kilograms to Davila for each of the two
    drugs at sentencing. Thus, even if Davila did not personally sell that entire amount, the
    district court may still take into consideration for sentencing purposes the acts of her co-
    conspirator that were taken in furtherance of the conspiracy. We therefore can not say
    that attributing 14 kilograms of heroin and crack cocaine to Davila was clearly
    erroneous.
    Davila further argues that the jury, rather than the court, was required under
    Apprendi to determine whether the conspiracy operated within 1000 feet of a school, in
    violation of 21 U.S.C. 860, and whether she had a leadership role in the conspiracy.
    Under 1B1.3 of the Sentencing Guidelines, a court may take into consideration a
    defendant’s "relevant conduct" in adjusting the sentence. See U.S.S.G. 1B1.3. Such
    relevant conduct can include a violation of a particular statute, even where there has been
    no conviction for violating that statute. See 
    id.
     1B1.3 n.6.
    The court declined to impose a 2-level enhancement for operating a drug house
    within 1000 feet of a school in violation of 21 U.S.C. 860, as Davila was never
    indicted or convicted for that offense. Later at sentencing, the court told Davila that the
    fact that the distribution took place near a school was relevant to the court’s
    consideration of an appropriate sentence. R. at 1223. The court also assessed a 4-level
    increase for being an organizer or leader of a criminal activity involving five or more
    participants. The court then sentenced Davila to life imprisonment; the upper end of the
    statutory and Guidelines maximum.
    The evidence clearly established that the drug house was less than 1000 feet from
    the school. There was testimony at the evidentiary hearing by two witnesses, one of
    whom was a licensed civil engineer, that the drug house was exactly 848.6 feet from the
    school, and a total of five maps were admitted into evidence showing the location of the
    drug house and the school. Under the Guidelines, it is of no moment that Davila was not
    convicted under 21 U.S.C. 860. It is still within a judge’s discretion to consider such
    conduct even though it was not included in the indictment. Moreover, as noted above,
    the statutory maximum under Count I is life imprisonment. Therefore, the adjustments
    the court made for operating a drug house within 1000 feet of a school, and for Davila’s
    leadership role did not increase Davila’s sentence beyond the statutory maximum.
    Consequently, Apprendi is not implicated.
    Next, Davila argues that the district court erred by not reducing Davila’s sentence
    under 5K2.13 of the Guidelines due to her "nerves" condition. Davila argues that her
    unspecified "mental infirmities" are severe enough to support a sentence reduction.
    If the district court’s decision not to make a downward departure was based upon
    a belief that it did not have the authority to do so, then we have jurisdiction to determine
    if the district court’s understanding of the law was correct. See United States v.
    Mummert, 
    34 F.3d 201
    , 205 (3d Cir. 1994). However, if the district court’s decision was
    based upon its exercise of discretion, we lack jurisdiction to entertain the argument. See
    id.; United States v. Powell, 
    269 F.3d 175
    , 179 (3d Cir. 2001).
    In imposing a life sentence, the court explicitly stated that it was taking many
    factors into consideration. Among those factors the court listed, was "the nature of the
    offense, the defendant’s history, characteristics, educational, vocational and corrective
    needs, as well as her needs for mental health treatment and her mental condition." R. at
    1223 (emphasis added). The court also considered, "the need for deterrents and
    protection of the public" as well as "the quantity of drugs . . . and [that] processing took
    place near a school." 
    Id.
     The court, therefore, took into consideration Davila’s "nerves"
    condition, but ultimately decided that other more compelling factors weighed in favor of
    a life sentence. The district court exercised its discretion with respect to evaluating the
    propriety of granting a downward departure, and consequently we do not have
    jurisdiction to second guess its decision.
    Lastly, Davila claims that she was deprived of effective assistance of counsel.
    Davila cites to fourteen examples where she feels her trial counsel erred. However, a
    claim of ineffective assistance of counsel will generally not be entertained by this court
    on direct appeal. Rather, such a claim must be raised in a collateral proceeding under 28
    U.S.C. 2255. See United States v. Rieger, 
    942 F.2d 230
    , 235-36 (3d Cir. 1991); 28
    U.S.C. 2255 (2002). A narrow exception to this rule applies where the record is
    sufficient to allow an appellate court to make a determination on the ineffective
    assistance claim. See United States v. Headley, 
    923 F.2d 1079
    , 1082 (3d Cir. 1991).
    That is not this case here, however.
    Most of the fourteen examples Davila cites are variations of issues already argued
    in her direct appeal, i.e. trial counsel’s failure to argue for lesser culpability due to
    Davila’s "mental infirmities." Others relate to possible tactical decisions, i.e. trial
    counsel’s failure to introduce evidence explaining why Davila was collecting Social
    Security benefits. This record, however, is not sufficient to resolve Davila’s ineffective
    assistance of counsel claim. If Davila wishes to pursue the ineffective assistance claim,
    she must raise it under 28 U.S.C. 2255.
    Accordingly, for all the reasons set forth herein, we will affirm the convictions
    and judgment of sentence.
    TO THE CLERK:
    Please file the foregoing memorandum opinion.
    BY THE COURT:
    /s/ Theodore A. McKe
    Circuit Judges
    FOR THE THIRD CIRCUIT
    No. 00-3762
    UNITED STATES OF AMERICA,
    Appellee
    v.
    IRIS YOLANDA DAVILA,
    Appellant
    On Appeal from the Convictions and Judgment
    of Sentence Entered in the United States
    District Court for the Eastern District of Pennsylvania
    Crim. No. 99-cr-00505-2
    District Judge: Hon. Franklin S. Van Antwerpen
    Argued: July 15, 2002
    Before: McKee, Weis, and Duhe, Circuit Judges
    JUDGMENT
    This cause came to be considered on the record from the United States District
    Court for the Eastern District of Pennsylvania and was argued on July 15, 2002.
    On consideration of the arguments made on appeal, it is hereby ORDERED AND
    ADJUDGED by this Court that the convictions and judgment of sentence of the district
    court entered October 30, 2000, are hereby affirmed. All of the above in accordance
    with the opinion of this Court.
    Our decision is without prejudice to Appellant’s right to file an appropriate
    petition under 28 U.S.C. 2255.
    ATTEST:
    Acting Clerk
    Dated: 13 August 2002