United States v. Jimenez , 142 F. App'x 685 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4511
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN JIMENEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CR-01-58)
Submitted: May 31, 2005 Decided: July 28, 2005
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Russell N. Allen, Richmond, Virginia; B. Alan Seidler, LAW OFFICE
OF B. ALAN SEIDLER, New York, New York, for Appellant. John L.
Brownlee, United States Attorney, Ray B. Fitzgerald, Jr., Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jonathan Jimenez was convicted by a jury of conspiracy to
distribute more than fifty grams of crack cocaine, in violation of
21 U.S.C. § 846 (2000), and sentenced to life imprisonment.
Jimenez appeals, claiming that his rights under the Speedy Trial
Act were violated, the evidence was insufficient to support his
conviction, and that the district court erred at sentencing in
determining the amount of drugs attributable to him and in
increasing his offense level for his role in offense. Jimenez also
contends that his sentence must be vacated under United States v.
Booker, 125 S. Ct. 738 (2005), because the district court, treating
the United States Sentencing Guidelines as mandatory, impermissibly
applied certain offense-level enhancements based on judge-found
facts. Because we conclude that re-sentencing is warranted under
Booker, we need not address Jimenez’s challenges to the district
court’s application of the Guidelines provisions. United States v.
Hughes, 401 F.3d 540, 556 n.15 (4th Cir. 2005). For the reasons
that follow, we affirm Jimenez’s conviction, vacate his sentence,
and remand for resentencing.
Jimenez first argues that his rights under the Speedy
Trial Act (STA), 18 U.S.C. § 3161 (2000), were violated because his
trial failed to commence within seventy days of his first court
appearance. The time that Jimenez’s co-defendant’s motions for
continuance were pending is excluded from the STA computation for
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all defendants in the same action. 18 U.S.C. 3161(h)(1)(F); United
States v. Jarrell, 147 F.3d 315, 316 (4th Cir. 1998). In addition,
the list of periods of delay that are excluded for purposes of
speedy trial calculations includes “[a]ny period of delay resulting
from a continuance granted by any judge on his own motion or at the
request of the defendant . . . if the judge granted such
continuance on the basis of his findings that the ends of justice
served by taking such action outweigh the best interest of the
public and the defendant in a speedy trial.” § 3161(h)(8)(A).
Here, in both orders granting the motions for continuance, the
district court specifically found that “the ends of justice served
by the granting of a continuance outweigh the best interest of the
public and the defendants in a speedy trial.” Therefore, we find
that Jimenez’s rights under the Speedy Trial Act were not violated.
Next, Jimenez asserts that the evidence presented at
trial was insufficient to support his conviction. The evidence,
viewed in the light most favorable to the government, see United
States v. Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc),
established the following. In the Spring of 1999, the RUSH Drug
Task Force, comprised of the Harrisonburg Police Department,
Rockingham County Sheriff’s Department, the Virginia State Police,
and the United States Drug Enforcement Agency, uncovered a large
cocaine trafficking conspiracy operating in Harrisonburg, Virginia.
Jimenez was one of the leaders of a group of crack distributors in
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and around Harrisonburg, Virginia, who called themselves “the
boys.” Sergeant Shane Brown of the Harrisonburg Police Department
testified that, as part of an investigation into organized drug
trafficking in Harrisonburg, he supervised three controlled
purchases of crack cocaine from Jimenez in 2000 and 2001. Pedro
Guerrero testified that he served as a “runner” for Jimenez
beginning in 2000. According to Guerrero, Jimenez traveled to New
York “every two weeks” to purchase powder cocaine which he would
“cook” into crack upon his return to Harrisonburg. Guerrero
accompanied Jimenez to New York “at least twice”.
Robinson de la Cruz testified that he sold crack for
Jimenez and accompanied Jimenez to New York to purchase cocaine “a
few times.” De la Cruz stated that Jimenez would purchase “maybe
an ounce at most” on his trips to New York. De la Cruz stated that
Izelle Frye (“Zeek”) worked for Jimenez, selling crack out of an
Economy Inn. Mike Eshbaugh testified that he purchased crack from
Jimenez “500, 1,000” times and that Jimenez was part of a group of
individuals—including several named co-conspirators—from whom he
routinely purchased crack cocaine.
We find that this evidence sufficiently established each
of the elements necessary to support Jimenez’s conviction for
conspiring to distribute crack cocaine. Glasser v. United States,
315 U.S. 60, 80 (1942); Burgos, 94 F.3d at 857. As to Jimenez’s
argument challenging the credibility of the Government’s witnesses,
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it is well established that the question of witness credibility is
within the sole province of the jury and not susceptible to review.
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Moreover, the potential biases of each of the Government’s
witnesses were fully explored during direct and cross examination.
Finally, Jimenez challenges his sentence under Booker.
At sentencing, the district court attributed 12 kilograms of crack
cocaine to Jimenez, resulting in a base offense level of 38. The
court also gave Jimenez a four-level enhancement for his role in
the offense, pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.1(a). Based on a total offense level of 461 and a criminal
history category of I, the resulting guideline range was life
imprisonment, which the court imposed. In contrast, the base
offense level for the amount of crack charged in the indictment
(fifty grams) would have been 32; without applying any other
enhancements, Jimenez’s guideline range would have been 97-121
months imprisonment.
Although Jimenez did not raise a Sixth Amendment
challenge at sentencing, this court has held that a mandatory
enhancement based on judicial factfinding supported by a
preponderance of the evidence constitutes plain error warranting
1
The district court also applied a two-level enhancement under
USSG § 2D1.1(b)(1) based on its finding that Jimenez traded crack
for a handgun on three occasions and also a two-level enhancement
for obstruction of justice under USSG § 3C1.1. Jimenez does not
challenge these enhancements.
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correction. United States v. Hughes, 401 F.3d at 547-48 (citing
United States v. Olano, 507 U.S. 725, 731-32 (1993)).
In light of Booker and Hughes, we find that the district
court plainly erred in sentencing Jimenez.2 Therefore, we vacate
his sentence and remand for proceedings consistent with Hughes. In
light of this disposition, we deny Jimenez’s motion to file a pro
se supplemental brief. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART, VACATED IN PART AND REMANDED
2
Just as we noted in Hughes, 401 F.3d at 545 n. 4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time" of Jimenez’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
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