United States v. Moreno ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 99-41426
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL MORENO, JR.,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
1:99-CR-29-ALL
___________________________________________________
January 2, 2002
Before GARWOOD and WIENER, Circuit Judges and VANCE,* District
Judge.
PER CURIAM:**
Appellant Manuel Moreno appeals his sentence for possession
with intent to distribute marijuana, in violation of 21 U.S.C. §
841(a)(1). Because the bill of information did not charge a
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
**
Pursuant to 5th Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
specific quantity of marijuana, and Moreno’s sentence exceeded five
years, we vacate his sentence and remand to the district court for
resentencing under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000).
I. Background
Moreno was originally indicted for being a felon in possession
of a firearm under 18 U.S.C. § 922(g)(1). During a traffic stop,
police officers found a loaded pistol on the driver’s side of the
truck Moreno was driving. The officers also found 175 pounds of
marijuana in a companion vehicle. Moreno pleaded not guilty to the
gun charge and asserted his innocence at trial. Moreno testified
at trial that he was unaware that the firearm was in the vehicle.
The jury failed to reach a verdict, and the judge declared a
mistrial. Two months later, the government filed a one-count bill
of information charging Moreno with possession with intent to
distribute an unspecified amount of marijuana, in violation of 21
U.S.C. § 841(a)(1). The drug charge arose out of the same traffic
stop that was the factual basis for the gun charge. That same day,
Moreno waived his right to an indictment and pleaded guilty to the
bill of information in accordance with a written plea agreement.
Moreno also admitted in the plea agreement that he possessed a
firearm in connection with the drug offense and that a two-point
sentencing enhancement should be applied under U.S.S.G. §
2D1.1(b)(1).
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Moreno was sentenced several months later. As part of the
presentence investigation, Moreno gave an interview to a probation
officer. During that interview, Moreno denied that he knew that
the gun was in the car when he committed the marijuana offense.
The probation officer determined that Moreno was responsible for
79.67 kilograms of marijuana, and based on that amount, calculated
Moreno’s base offense level at 22. The probation officer
recommended that a two-level increase for possession of a firearm
under U.S.S.G. § 2D1.1(b)(1) be added to Moreno’s offense level.
Moreno’s criminal history category was II, which, at an offense
level of 24, resulted in a sentencing guideline range of 57-71
months’ imprisonment. The probation officer recommended that the
district court deny Moreno a two-point downward adjustment for
acceptance of responsibility because Moreno failed to accept
responsibility for all relevant conduct involved in the offense, in
particular, the possession of the firearm. Moreno objected to the
probation officer’s recommendation.
At sentencing, the district court overruled Moreno’s objection
and sentenced him to 71 months’ imprisonment and three years of
supervised release. The district court found that Moreno was not
entitled to a downward adjustment for acceptance of responsibility
because during the presentence interview, Moreno maintained that he
did not possess a firearm in connection with the offense. The
district court also referred to a section of the presentence
investigation report that recommended that Moreno be denied a
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downward adjustment for acceptance of responsibility because Moreno
had forced the government to go to trial on the gun charge in the
first case. Moreno filed a timely notice of appeal.
On appeal, Moreno challenges both the district court’s
refusal to grant him a downward adjustment for acceptance of
responsibility and the validity of his sentence under Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
II. Discussion
B. Acceptance of Responsibility
1. Standard of Review
The determination of the sentencing judge on acceptance of
responsibility is entitled to great deference on review. See
U.S.S.G. § 3E1.1 comment. n.5 (Nov. 2001). Failure to depart
downward for acceptance of responsibility constitutes reversible
error only when that decision is made without any foundation.
United States v. Patino-Cardenas, 85 F.3d 1133, 1136 (5th Cir.
1996).1
2. Analysis
1
We have not definitively determined what standard applies
when reviewing a district court’s refusal to grant a defendant a
downward adjustment for acceptance of responsibility. Compare
United States v. Wilder, 15 F.3d 1292, 1298 (5th Cir.
1994)(applying the "clearly erroneous" standard), with United
States v. Patino-Cardenas, 85 F.3d 1133, 1136 (5th Cir.
1996)(applying the “without foundation” standard), and United
States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996)(applying the
“great deference” standard). We have found, however, that “[t]here
appears to be no practical difference between the three standards.”
United States v. Cartwright, 6 F.3d 294, 304 (5th Cir. 1993).
4
Section 3E1.1 of the United States Sentencing Guidelines
provides for a two or three level reduction in a defendant’s
sentence if the defendant “clearly demonstrates acceptance of
responsibility for his offense.” U.S.S.G. § 3E1.1(a)(Nov. 2001).
The commentary to section 3E1.1 provides a non-exhaustive list of
considerations that sentencing courts are to take into account in
determining whether the defendant has accepted responsibility,
which include whether the defendant has falsely denied or
frivolously contested relevant conduct. See U.S.S.G. § 3E1.1(a),
comment. n.1(a) (Nov. 2001) (“[A] defendant who falsely denies, or
frivolously contests, relevant conduct that the court determines to
be true has acted in a manner inconsistent with acceptance of
responsibility.”).
Moreno asserts that the district court’s failure to grant him
a downward adjustment for acceptance of responsibility based on his
refusal to admit to possession of the firearm violated his Fifth
Amendment right against self-incrimination. He argues that a
contrary ruling would force him to choose between (1) accepting
responsibility for a crime, other than the one to which he has
pleaded guilty, without the protection of immunity, and (2)
forfeiting any consideration for a reduction in sentence. The
Court disagrees.
In this case, the government agreed in the plea agreement not
to prosecute Moreno on the gun charge. Further, there has been no
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compelled self-incrimination on these facts. See United States v.
Mourning, 914 F.2d 699, 706-707 (5th Cir. 1990)(statutorily
overruled on other grounds); see also United States v. Kleinebreil,
906 F.2d 945, 953 (5th Cir. 1992) (reaffirming the holding of
Mourning that requiring a defendant to accept responsibility for
relevant conduct does not violate Fifth Amendment). The law of
this circuit firmly establishes that requiring a defendant to
accept responsibility for all relevant conduct before awarding a
reduction for acceptance of responsibility does not deny defendant
his right against self-incrimination. Id. Accordingly, Moreno was
required to accept responsibility for the conduct involved in the
drug offense, as well as for the relevant conduct of possessing the
firearm in connection with the drug offense, before he was entitled
to a downward adjustment for acceptance of responsibility.
We find that the district court had sufficient grounds to
deny defendant a downward adjustment for acceptance of
responsibility. During the course of an extended colloquy with
defense counsel during the sentencing hearing, the district court
explicitly found that Moreno was not entitled to a downward
adjustment for acceptance of responsibility because he made
contradictory statements regarding the firearm during the
presentence interview and in the plea agreement. The court stated
that “defendant was not being truthful at the time of the plea or
he was not being truthful during the presentence interview.”
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Accordingly, the court found that it was not appropriate to grant
him acceptance of responsibility.
Our review of the record reveals that Moreno acknowledged in
his plea agreement that he possessed a firearm during his drug
trafficking activities and stipulated to a two-level enhancement
under U.S.S.G. § 2D1.1(b)(1). In contrast, in his interview with
the probation officer, Moreno claimed that he did not possess a
firearm in connection with the offense. Indeed, Moreno denied that
the gun in his vehicle was his or that he knew that it was in the
vehicle until the police stopped him. He asserted that the firearm
in his vehicle belonged to his nephew. We find that the sentencing
judge had a sufficient basis to find that Moreno did not accept
responsibility for relevant conduct because he changed his story
regarding the gun between the time he entered the plea agreement,
in which he admitted that he possessed the gun in connection with
the offense, and the time of the presentence interview, in which he
asserted his unawareness of the gun and blamed it on his nephew.
The district court additionally appeared to rely on another
basis for denying the downward adjustment. The district court
stated during the sentencing hearing that, “[t]here is no
adjustment for acceptance of responsibility for the reasons stated
in paragraph 21 [of the PSR] and the colloquy between counsel and
the court on his objection.” Paragraph 21 of the PSR states that
Moreno’s earlier decision to go to trial on the gun charge was
another reason that he should be denied a downward adjustment for
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acceptance of responsibility.
The defendant failed to fully accept responsibility
regarding relevant conduct and offense characteristics
associated with the instant offense. USSG § 3E1.1,
comment. (n.1a). Furthermore, Moreno proceeded on the
count of Indictment to trial dealing with “factual
guilt.” Thus, this has put the Government to its burden
of proof and has expended the resources of the Court,
which may have been otherwise used more efficiently.
U.S.S.G. § 3E1.1, comment. (n.2 and 6).
Whether it is permissible for the sentencing court to find
that Moreno’s “not guilty” plea to the earlier indictment on the
gun charge constituted a false denial of relevant conduct in the
later drug case is a question of law for this Court to review de
novo. United States v. Brown, 29 F.3d 953, 959 (5th Cir. 1994).
We need not reach this question, however. The district court’s
conclusion that Moreno had not accepted responsibility was
primarily based on its finding that Moreno made contradictory
statements about the gun possession. This finding alone is
sufficient to warrant denial of acceptance of responsibility. See,
e.g., United States v. Paredes-Batista, 140 F.3d 367, 380 (2d Cir.
1998) (affirming denial of an adjustment for acceptance of
responsibility when factual basis supported denial even though
district court also relied on a flawed legal theory).
C. Apprendi
Moreno raises his Apprendi challenge for the first time on
appeal. Accordingly, this Court reviews the district court’s
decision for “plain error.” United States v. Gonzalez, 259 F.3d
8
355-359 (5th Cir. 2001).
Moreno argues that the two-level sentence enhancement for
possession of a firearm violated Apprendi. Section 2D1.1(b)(1) of
the guidelines provides for a two-level sentencing enhancement for
weapons possession “unless it is clearly improbable that the weapon
was connected with the offense.” U.S.S.G. § 2D1.1, comment. n.3
(Nov. 2001). Here, Moreno stipulated in his plea agreement that he
possessed a firearm in connection with the drug offense.
Sentencing enhancements under the guidelines, like section
2D1.1, do not implicate Apprendi. See United States v. Randle, 259
F.3d 319, 322 (5th Cir. 2000). In Randle, this court reiterated
that a sentencing court’s factual findings under the guidelines are
not governed by Apprendi. Id. (citing United States v. Doggett,
230 F.3d 160, 165 (5th Cir.), cert. denied, 531 U.S. 1177, 121 S.
Ct. 1152 (2000) (finding that Apprendi was specifically limited to
facts that increase the penalty beyond the statutory maximum and
does not invalidate a court’s factual finding for the purposes of
determining the applicable Sentencing Guidelines)). Therefore, we
found that Apprendi did not apply to the section 2D1.1 sentencing
enhancement for possession of a firearm. Id. (“Application of
enhancements called for by the guidelines may not be used to impose
any sentence beyond the statutory maximum prescribed by an
offense.”).
Our review of the record reveals, however, that Moreno’s bill
9
of information failed to allege a drug quantity. Although Moreno’s
Apprendi challenge did not mention the government’s failure to
allege a specific drug quantity, the Court in its discretion finds
that it is in the interests of justice and fairness to consider
this argument. See United States v. Miranda, 248 F.3d 434, 443-44
(5th Cir. 2001) (refusing to find the Apprendi challenge waived
when “it is clear from the record in this case that Appellants were
sentenced in violation of constitutional due process as interpreted
by the Supreme Court in Apprendi.”); Randle, 259 F.3d at 320-21.
We have held under Apprendi that “if the government seeks
enhanced penalties based on the amount of drugs under 21 U.S.C. §
841(b)(1)(A) or (B), the quantity must be stated in the indictment
and submitted to a jury for a finding of proof beyond a reasonable
doubt.” Doggett, 230 F.3d at 165. When defendant is either
charged and convicted or is charged and pleads guilty to an
unstated quantity, defendant may be sentenced only under the
applicable default provisions of section 841. See United States v.
Gonzalez, 259 F.3d 355, 359 (5th Cir. 2001)(citations omitted).
See also United States v. Longorio, 259 F.3d 363, 365 (5th Cir.
2001)(per curiam). For marijuana, section 841(b)(1)(D) sets forth
the statutory maximum. See Gonzalez, 259 F.3d at 359.
Under Section 841(b)(1)(D), in the absence of a prior
10
conviction for a felony drug offense,2 the statutory maximum to
which Moreno may be sentenced is a term of imprisonment of not more
than five years and supervised release of not more than three
years. The Court finds that the district court lacked jurisdiction
to impose a longer sentence on Moreno of 71 months’ imprisonment
and four years of supervised release. See Gonzalez, 259 F.3d at
n.3; Longorio, 259 F.3d at 365. We, therefore, vacate Moreno’s
sentence and remand to the district court for resentencing in
accordance with this opinion.
III. Conclusion
We affirm the district court’s denial of a reduction for
acceptance of responsibility, but because the sentence imposed
exceeds the statutory maximum of 60 months for the offense of
conviction, thus violating Apprendi, we vacate Moreno’s sentence
and remand for resentencing.
2
If the defendant has a prior felony drug conviction, 21
U.S.C. § 841(b)(1)(D) provides for a statutory maximum of ten years
imprisonment and four years of supervised release. Although the
probation officer determined in the pre-sentence report that Moreno
had been convicted of a drug offense, the record indicates that the
government did not file a bill of information with the court
stating in writing the previous convictions to be relied upon as
required by 21 U.S.C. § 851. Section 851 provides that “[n]o
person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a plea of
guilty, the United States attorney files an information with the
court. . . .” Accordingly, since the government did not comply
with the requirements of section 851, it cannot now rely upon
Moreno’s prior conviction to increase his sentence under section
841(b)(1)(D). (Tr. Plea, at 14-15.) See United States v.
Martinez, 253 F.3d 251, 255, n.4 (6th Cir. 2001).
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AFFIRMED in part; VACATED and REMANDED in part.
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