United States v. Rangel ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 31, 2004
Charles R. Fulbruge III
No. 03-40898 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS JAVIER RANGEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-00-CR-317-ALL)
Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit
Judges.
PER CURIAM:*
Luis Javier Rangel pleaded guilty to possession with intent to
distribute less than 500 grams of cocaine. His sentence was based
not only on the 297.7 grams of cocaine found in his possession when
arrested, but also on an additional quantity he admitted purchasing
prior to that arrest; the latter quantity was considered relevant
conduct, pursuant to Sentencing Guidelines § 1B1.3. Rangel
challenges his sentence, claiming: the district court erroneously
calculated the amount of cocaine involved in the pre-arrest
*
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that this opinion should not be published and is not precedent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.
purchases; and those purchases were for personal use and,
therefore, are not relevant conduct. AFFIRMED.
I.
On 5 July 2000, officers in Harlingen, Texas, stopped Rangel’s
automobile and searched it with his consent. The officers found
297.7 grams of cocaine in the automobile and on Rangel. He was
charged with conspiring to possess and with possession with intent
to distribute less than 500 grams of cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C). Pursuant to a plea agreement,
Rangel pleaded guilty to possession with intent to distribute and
the Government dismissed the conspiracy charge.
During an interview for use in preparing the presentence
investigation report (PSR), Rangel admitted to the probation
officer that he had made two purchases within six months of his
arrest that involved amounts of cocaine similar to the amount of
cocaine for which he was convicted. The PSR included these pre-
arrest purchases as relevant conduct under Guidelines § 1B1.3 for
purposes of calculating Rangel’s sentence and stated they involved
approximately 595.4 grams of cocaine (297.7 grams for each of the
two pre-arrest purchases). The resulting drug quantity was 893.1
grams (297.7 grams for the instant offense, plus 594.4 grams for
the two pre-arrest purchases). Because that quantity was more than
500 grams, but less than two kilograms, of cocaine, Rangel’s base
offense level was 26. U.S.S.G. § 2D1.1(c)(7). The PSR also stated
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that Rangel admitted: to a daily cocaine habit of approximately
1/8 of an ounce (approximately 3.5 grams); and to buying and
selling cocaine in order to support that habit. With a recommended
three-level downward adjustment for acceptance of responsibility,
the PSR calculated Rangel’s total offense level at 23. Coupled
with his category II criminal history, his Guidelines sentence
range was 51 to 63 months’ imprisonment.
In his pre-sentencing response to the PSR, Rangel filed only
one objection: he “object[ed]” to the PSR paragraph that detailed
his two pre-arrest purchases, but without further explanation. At
sentencing, his counsel objected, but without Rangel’s testifying,
to the PSR’s inclusion of the two pre-arrest purchases as relevant
conduct; his attorney stated Rangel purchased that cocaine for his
personal use. Accordingly, Rangel’s attorney urged Rangel should
be sentenced based only on the 297.7 grams found at the time of his
arrest; this would result in a sentencing range of 27-33 months.
(Rangel did not object at sentencing to the PSR’s stating that each
of the two pre-arrest purchases involved approximately 297.7 grams
of cocaine.) The district court overruled Rangel’s objection and
sentenced him to 63 months’ imprisonment — the high end of the
range recommended by the PSR.
II.
Although the plea agreement contained a waiver of Rangel’s
right to appeal, the Government does not invoke that waiver;
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accordingly, we will not consider the waiver. The district court’s
legal interpretations of the Sentencing Guidelines are reviewed de
novo; its factual findings, only for clear error. E.g., United
States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998). A factual
finding is not clearly erroneous as long as it is plausible in the
light of the record as a whole. Id. Obviously, the district
court’s determination of the drug quantity involved in an offense
is a factual finding. Id.
A.
Rangel first contests the district court’s drug-quantity
calculation, challenging the PSR’s stating that each of the two
pre-arrest purchases involved approximately 297.7 grams of cocaine.
Rangel contends: he admitted to the probation officer only that
the two purchases involved amounts of cocaine similar to the amount
he possessed when arrested, but the exact quantity of those
purchases is uncertain. As discussed supra, although at
sentencing, Rangel expanded upon his one word written objection to
this part of the PSR, he objected only to the pre-arrest purchases’
being included as relevant conduct. As noted, his objection was
based on his claim that the cocaine was for personal use
(discussed infra); he did not claim the quantity was inaccurate.
Accordingly, we review only for plain error.
Under the more than well-established test for reversible plain
error, the error must be clear or obvious and affect the
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defendant’s substantial rights. Id. at 830. Even if these
requirements are satisfied, whether to correct the plain error is
within our discretion; ordinarily, we will not do so “unless the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings”. Id. (citations omitted).
In determining drug quantities for sentencing purposes, the
district court may rely on any relevant evidence that has
“sufficient indicia of reliability”. United States v. Posada-Rios,
158 F.3d 832, 878 (5th Cir. 1998). The PSR is generally of
sufficient reliability. Alford, 142 F.3d at 831-32. When, as
here, the defendant contests the facts presented in the PSR, he
bears the burden of demonstrating that the “information cannot be
relied upon because it is materially untrue, inaccurate or
unreliable”. United States v. Angulo, 927 F.2d 202, 205 (5th Cir.
1991). If, as here, the defendant presents no evidence to refute
the facts to which he objects, the facts contained in the PSR may
be adopted by the district court without further inquiry, as long
as they have an adequate evidentiary basis. Alford, 142 F.3d at
832.
As noted above, Rangel presented no evidence at sentencing to
refute the PSR’s stating that the two pre-arrest purchases each
involved approximately 297.7 grams of cocaine, nor did he deny
admitting that the purchases involved similar amounts of cocaine.
The district court was entitled to make a reasonable estimate of
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the drug quantity involved in those pre-arrest purchases; its
estimate was not limited to the amount seized at arrest. See
U.S.S.G. § 2D1.1, comment. (n.12) (“Where there is no drug seizure
or the amount seized does not reflect the scale of the offense, the
court shall approximate the quantity of the controlled
substance.”); United States v. Medina, 161 F.3d 867, 876 (5th Cir.
1998).
Rangel admitted to the probation officer that each of the two
pre-arrest purchases involved amounts of cocaine similar to the
amount for which he was convicted, and he presented no evidence at
sentencing on those pre-arrest amounts. Accordingly, the district
court did not clearly err, much less plainly err, in adopting the
PSR’s position that the two pre-arrest purchases involved a total
of approximately 595.4 grams of cocaine.
B.
Rangel next maintains: even if the contested drug-quantity
finding for the pre-arrest purchases was accurate, the district
court erred in finding those purchases were relevant conduct
because the cocaine was purchased for his personal use. Pursuant
to U.S.S.G. § 2D1.1(a)(3), the offense level for a drug trafficking
conviction is determined by the quantity of drugs involved in the
offense. E.g., United States v. Schorovsky, 202 F.3d 727, 729 (5th
Cir. 2000). In making this drug-quantity finding, the district
court may consider drug quantities not specified in the count of
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conviction if they are part of the defendant’s relevant conduct.
U.S.S.G. § 2D1.1 comment. (n.12).
Relevant conduct includes all of the defendant’s acts and
omissions “that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense”.
U.S.S.G. § 1B1.3(a)(1). Moreover, because an offense under § 2D1.1
is one for which multiple counts may be grouped, see U.S.S.G. §
3D1.2(d), relevant conduct includes “all acts and omissions [which
otherwise meet the relevant conduct definition that] were part of
the same course of conduct or common scheme or plan as the offense
of conviction”. U.S.S.G. § 1B1.3(a)(2). Rangel does not challenge
this.
1.
Our court has not decided whether drugs obtained for personal
use may be considered in determining a Guidelines sentence for a
possession-with-intent-to-distribute conviction, but at least six
other circuits have held that the sentencing court cannot consider
personal-use drugs in that instance. Jansen v. United States, 369
F.3d 237, 249 (3d Cir. 2004); United States v. Gill, 348 F.3d 147,
153 (6th Cir. 2003); United States v. Williams, 247 F.3d 353, 358
(2d Cir. 2001); United States v. Fraser, 243 F.3d 473, 475-76 (8th
Cir. 2001); United States v. Wyss, 147 F.3d 631, 632 (7th Cir.
1998); United States v. Kipp, 10 F.3d 1463, 1465-66 (9th Cir.
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1993). On the other hand, at least five circuits have held that
personal-use drugs can be considered relevant conduct for
sentencing when the defendant was convicted for participation in a
drug conspiracy. United States v. Page, 232 F.3d 536, 542 (6th
Cir. 2000), cert. denied, 532 U.S. 1056 (2001); United States v.
Asch, 207 F.3d 1238, 1243-44 (10th Cir. 2000); United States v.
Fregoso, 60 F.3d 1314, 1328 (8th Cir. 1995); United States v.
Antonietti, 86 F.3d 206, 209-210 (11th Cir. 1996)(in conspiracy
case, purporting to reject Kipp’s reasoning that personal-use drugs
not relevant conduct for possession, but seeming to ignore the
relevant distinction in the case law between conviction for
conspiracy and conviction for possession with intent to
distribute); United States v. Innamorati, 996 F.2d 456, 491 (1st
Cir.), cert. denied, 510 U.S. 1120 (1993).
Relying on the former line of cases, Rangel claims: because
he was convicted only for possession with intent to distribute, the
drugs he possessed for personal use should not be counted toward
his sentence. As discussed below, we need not reach this issue;
the district court rejected Rangel’s objection at sentencing in
which his counsel asserted that the pre-arrest drug purchases were
for Rangel’s personal use.
2.
In considering this objection to the PSR, the district court
did not reject Rangel’s claim that personal-use drugs should not be
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considered for the sentencing amount. Instead, the court
questioned the probation officer about converting Rangel’s
purported daily cocaine habit of 1/8 of an ounce into grams
(approximately 3.5) in order to determine what portion of the 893.1
grams for which the PSR recommended Rangel be sentenced was
arguably for personal use. Rangel’s counsel also participated in
the discussion. After making these conversions, the district court
stated to Rangel’s counsel: “I got the impression when you first
started, you were saying [Rangel] might have bought some, but it
was only for personal use. Well, it seems to me that even if it
was a fourth of a pound, four ounces, that is still a lot to be
constituting personal use, especially in the six-month period
before his arrest”. The court then overruled Rangel’s objection to
the PSR, thereby rejecting the factual assertion that the pre-
arrest purchases were for personal use. Again, this rejection is
a finding of fact, reviewed only for clear error. E.g., Alford,
142 F.3d at 831.
Although, as reflected above, the district court’s statement
about personal use is somewhat confusing as transcribed, it did not
clearly err in finding that the 595.4 grams of cocaine from the two
pre-arrest purchases were not for personal use. Along this line,
under Guidelines § 2D1.1(a)(3), the next lowest sentencing range is
for quantities of less than 500 grams. In order to lower Rangel’s
sentencing range, the district court would have had to find a
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significant amount of cocaine (nearly 400 grams) was for Rangel’s
personal use.
In contrast, Rangel presented no evidence at sentencing to
support his purported daily 1/8 of an ounce cocaine habit;
obviously, his counsel’s claims or estimations at sentencing do not
constitute evidence. See United States v. Mayberry, 272 F.3d 945,
949 (7th Cir. 2001). Needless to say, although Rangel did claim
this daily 1/8 of an ounce cocaine habit to the probation officer,
the district court “need not accept the defendant’s self-serving
account of his role in [a] drug organization”. United States v.
Gadison, 8 F.3d 186, 197 (5th Cir. 1993). When a defendant claims
drug quantities are not relevant conduct because they were intended
for personal use, the defendant bears the burden of production with
respect to his personal use, although the Government bears the
ultimate burden of persuasion with respect to the sentencing
amount. Gill, 348 F.3d at 156; Asch, 207 F.3d at 1246. Again,
Rangel made only a pre-sentencing self-serving statement to the
probation officer for PSR preparation purposes; he submitted no
evidence that the pre-arrest cocaine purchases were intended only
for personal use and not for distribution. For example, Rangel
never presented evidence that the cocaine for personal use was
stored separately or packaged differently from the cocaine for
resale.
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Rangel was sentenced on the basis of 893.1 grams of cocaine.
That finding was not clearly erroneous.
III.
For the foregoing reasons, the sentence is
AFFIRMED.
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