United States v. Erick Arias Campos , 362 F.3d 1013 ( 2004 )

HANSEN, Circuit Judge.

When police searched Erick Arias Campos’s bedroom, they found 50.6 grams of methamphetamine, a firearm, a loaded ammunition clip, and a box of ammunition. A grand jury charged Campos with being an illegal alien in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(5)(A) (2000), and possessing with intent to distribute 50 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (2000). Campos pleaded guilty to the firearm charge but proceeded to trial on the drug charge. After the petit jury found him guilty, the district court granted Campos’s motion for a new trial on the drug charge. The government appealed, and we reversed, concluding “that the evidence was more than legally sufficient for the jury to find that Campos intended to distribute the methamphetamine.” United States v. Campos, 306 F.3d 577, 582 (8th Cir.2002). We reinstated Campos’s conviction and remanded for sentencing.

The presentence report recommended, as relevant, that Campos be held responsible for possessing 50.6 grams of methamphetamine mixture with intent to distribute, that he receive an obstruction-of-justice enhancement for perjuring himself at trial, and that he not receive an acceptance-of-responsibility reduction. Campos objected to these recommendations, arguing that he intended some or all of the methamphetamine mixture for personal consumption, that he had not obstructed justice, and that he had accepted responsibility.¹

The district court sustained two of Campos’s objections. First, the court estimated that Campos had possessed 25% of the methamphetamine with intent to consume it himself and had possessed 75% of it with intent to distribute it to others. Second, the court concluded that Campos’s case was “extraordinary” within the meaning of U.S. Sentencing Guidelines Manual § 3E1.1, comment, (n.4) (2002), allowing him to receive an aeeeptance-of-responsi-bility reduction despite the court’s application of an obstruction-of-justice enhancement. These rulings lowered Campos’s Guidelines imprisonment range from 97-121 months to 51-63 months, with a statutory minimum of five years in prison. The court sentenced Campos to 60 months in prison and four years of supervised release.

The government again appeals. For the reasons discussed below, we vacate the sentence imposed by the district court and remand for resentencing.

I.

Campos was prosecuted after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000), were decided. Drug quantity was therefore charged in the indictment and proved to the petit jury beyond a reasonable doubt. As noted above, the grand jury charged Campos with possessing 50 grams or more of methamphetamine mixture with intent to distribute. The petit jury was instructed as follows.

First, in Instruction Three, the jury was asked to determine beyond a reasonable doubt whether Campos had committed the offense simpliciter by knowingly possessing any quantity of methamphetamine and intending to distribute some or all of it. The jury answered affirmatively and turned to the next question. Second, in Instruction Four, the jury was directed to “determine beyond a reasonable doubt the amount of the methamphetamine involved in the offense for which the defendant can be held responsible,” meaning “the quantity of methamphetamine he possessed with intent to distribute.” The jury found that Campos had possessed 50 grams or more of methamphetamine with intent to distribute it, rejecting the alternative of finding that he had possessed less than 50 grams of methamphetamine with intent to distribute.

Given the petit jury’s finding as to the element of drug quantity, the district court erred as a matter of law by concluding that Campos intended 25% of the methamphetamine for personal consumption. See United States v. Cockett, 330 F.3d 706, 711 (6th Cir.2003) (a district court errs as a matter of law if, when determining a defendant’s sentence under the Guidelines, the court relies on a finding that directly conflicts with the jury’s verdict). Once the jury found beyond a reasonable doubt that the amount of methamphetamine Campos had intended to distribute was 50 or more grams, it was a legal impossibility for the district court to find by a preponderance of the evidence that the amount of methamphetamine Campos intended to distribute was less than 50 grams. See, e.g., United States v. Reed, 264 F.3d 640, 648 (6th Cir.2001) (where the defendant’s intent to facilitate drug trafficking was an element of the offense of conviction, and the jury found the existence of that element beyond a reasonable doubt when convicting him, the district court was foreclosed from concluding at sentencing that he did not intend to facilitate drug trafficking), cert. denied, 535 U.S. 962, 122 S.Ct. 1374, 152 L.Ed.2d 366 (2002), It is axiomatic that a fact proved beyond a reasonable doubt cannot simultaneously be disproved by a preponderance of the evidence.

II.

As noted above, Campos pleaded guilty to the firearm charge and went to trial on the drug charge. At trial, he admitted that he knowingly possessed the methamphetamine but denied that he intended to distribute it to others. The district court reasoned that despite receiving an obstruction-of-justice enhancement for perjuring himself at trial by denying his intent to distribute,² Campos deserved an acceptance-of-responsibility reduction for pleading guilty to the firearm charge and admitting at trial some elements of the drug charge. We will assume arguendo that Campos’s denial at trial of a factual element of the drug offense does not automatically preclude him from consideration for an acceptance-of-responsibility reduction. But see USSG § 3E1.1, comment. (n.2) (“[t]his adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial”); United States v. Chapman, 356 F.3d 843, 847 (8th Cir. Jan.21, 2004) (“In practice, ... holding the government to its burden of proving the defendant’s factual guilt presents a near absolute bar to a defendant receiving a reduction.”) We proceed to analyze the district court’s conclusion that Campos’s case was “extraordinary” within the meaning of USSG § 3E1.1, comment, (n.4)

Application Note 4 instructs that a defendant who has obstructed justice ordinarily has not accepted responsibility, but that an obstruction-of-justice enhancement and an acceptance-of-responsibility reduction may both apply in “extraordinary cases.” In United States v. Honken, 184 F.3d 961, 968-69 (8th Cir.), cert. denied, 528 U.S. 1056, 120 S.Ct. 602, 145 L.Ed.2d 500 (1999), we formulated the following test:

To determine whether a case is “extraordinary,” the district court should have taken into account the totality of the circumstances, including the nature of the appellee’s obstructive conduct and the degree of appellee’s acceptance of responsibility. Among other things, the district court should have considered whether, for example, the obstruction of justice was an isolated incident early in the investigation or an on-going effort to obstruct the prosecution. It should have considered whether appellee voluntarily terminated his obstructive conduct, or whether the conduct was stopped involuntarily by law enforcement. The district court should have noted whether appellee admitted and recanted his obstructive conduct, or whether he denied obstruction of justice at sentencing. Moreover, in our opinion the district court should have also weighed not only whether the defendant pleaded guilty to the underlying offense but also whether he assisted in the investigation of his offense and the offenses of others. We observe and note that there is no magic formula for defining an “extraordinary case,” but we hold it was error for the district court to hold as a matter of law that mere cessation of obstructive conduct coupled with a guilty plea to the underlying offense necessarily makes a case extraordinary for purposes of § 3E1.1, application note 4.

(citations omitted).

Our standard of review is clear error, and we conclude that the district court clearly erred by granting Campos an acceptance-of-responsibility reduction despite imposing an obstruction-of-justice enhancement. The district court found that Campos obstructed justice by perjuring himself at trial by denying that he intended to distribute methamphetamine. This form of obstruction of justice was an ongoing effort to thwart his prosecution rather than an isolated incident early in the investigation. Campos did not voluntarily terminate his obstructive conduct: he denied this element of his factual guilt at trial, in his motion for a new trial, and in the prior appeal. Campos did not recant at sentencing; he vigorously maintained that at least half, if not all, of the methamphetamine was not intended for distribution. Finally, Campos did not assist in the investigation of his offense or the offenses of others. In short, his limited demonstration of acceptance of responsibility did not so outweigh his extensive obstruction of justice as to make this an “extraordinary case.”

III.

We do not doubt that the district court was motivated by a good-faith and well-intentioned desire to fashion what it believed to be a fair sentence for Campos. However, the sentence the district court constructed is contrary to law. Accordingly, we vacate that sentence and remand for resentencing within the correct Guidelines imprisonment range of 97-121 months.

1 . The government adequately made the district court aware that it supported the recommendations of the presentence report and opposed Campos’s objections. Contrary to the dissent's characterization, counsel for the government did not concede the issue or invite error. Rather, after stating the government’s position, counsel — at the district court’s invitation' — engaged in a respectful exploration of the opposite point of view with the district court, acknowledging nothing more than the arguable merit of that point of view. The government did not abandon its position that the correct amount for sentencing purposes was the amount determined beyond a reasonable doubt by the jury.

Moreover, even if we were limited to plain-error review, we would still reverse. The dissent cites cases holding that errors which shortened the defendants’ sentences by 12 and 15 months, respectively, were not miscarriages of justice. However, we have previously held that an error which lengthened a defendant's sentence by 21 months was a miscarriage of justice, United States v. Marsanico, 61 F.3d 666, 668 (8th Cir.1995), and we think that the result should be the same when an error shortens a defendant’s sentence by an equal or greater amount. In the instant case, the district court's drug-quantity error shortened Campos’s sentence by anywhere from 34 to 43 months. It goes without saying that both the defendant and the people of the United States are entitled to equal justice.

2 . Campos did not cross-appeal the district court's application of the obstruction-of-justice enhancement, so the only matter before us is the government’s appeal of the application of the acceptance-of-responsibility reduction.