United States v. Rafael Barrios

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 8, 2005
Nos. 04-13837 & 04-13844
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 03-20816-CR-PCH
& 02-20544-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL BARRIOS,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(June 8, 2005)
Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.
PER CURIAM:
Rafael Barrios appeals his sentence imposed for conspiracy to possess with
intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. section
846, and knowingly failing to appear at sentencing, in violation of 18 U.S.C.
section 3146(a)(1). Barrios argues that his combined sentence of 130 months’
imprisonment resulted in double-counting and a violation of the Double Jeopardy
Clause, because the district court enhanced his sentence for obstruction of justice
based on his failure to appear at sentencing. We affirm.
In August 2002, Barrios pleaded guilty to conspiracy to possess with intent
to distribute cocaine. A sentencing hearing was set for October, but, although he
was twice given notice of the court date, Barrios failed to appear for his sentencing.
In a separate indictment, Barrios pleaded guilty for his knowing failure to appear at
sentencing. The district court consolidated the cases for sentencing and, in
accordance with the United States Sentencing Guidelines, grouped the offenses
under Guidelines section 3D1.2(c), which directs the district court to group
together “counts involving substantially the same harm.” The district court set
Barrios’s offense level at 26 for the more serious offense of drug-trafficking, in
accord with Guidelines section 3D1.3 and section 2D1.1(c)(7). To reach the final
guideline range of 110 to 137 months, the district court increased the offense level
by two for obstruction of justice. The district court sentenced Barrios to 130
months, which it allocated between the two offenses: 106 months for the
2
conspiracy charge and 24 months for failure to appear. Barrios did not object to
any of the sentencing calculations in the district court. On appeal, Barrios argues
that the use of the obstruction of justice enhancement subjected him to double
punishment for his failure to appear offense, in violation of the anti-double
counting rule and the Double Jeopardy Clause.
Because Barrios did not raise any objections in the district court, our review
is for plain error. United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir. 1996).
To show plain error the defendant must show (1) error, (2) that is plain, and (3)
that affects substantial rights. United States v. Candelario, 240 F.3d 1300, 1309
(11th Cir. 2001). “If all three conditions are met, [we] may then exercise [our]
discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (citation
omitted).
Barrios cannot demonstrate plain error because the district court did not err.
Barrios argues that the method of sentence calculation used by the district court
subjected him to double punishment. On the contrary, section 3D1.2(c) is
specifically designed to prevent double punishment, and the district court applied
the section properly. Under section 3D1.2, Barrios’s sentencing range was 110 to
137 months imprisonment. Had the district court engaged in double counting,
3
Barrios would have been subject to a sentencing range of 110 to 137 months on the
conspiracy charge, calculated with a criminal history category of IV, a base offense
level of 26, and a two-level enhancement for obstruction of justice, and a
sentencing range of 24 to 30 months on the failure to appear charge, which under
18 U.S.C. section 3146 must be served consecutive to any other sentence of
imprisonment, a combined sentencing range of 134 to 167 months’ imprisonment.
See U.S.S.G. §§ 2D1.1(c)(7), 2J1.6. Section 3D1.2 prevents this result by
instructing the district court to group the charges for sentencing.
That Barrios was sentenced only once for each crime is also apparent from
the final sentence he received. Barrios’s total sentence was 130 months, which was
allocated between the two offenses, 106 months for the conspiracy and 24 months
for the failure to appear. The 24 month sentence is the lowest sentence possible
under the Guideline range for failure to appear. See U.S.S.G. § 2J1.6. The 106
month sentence falls within the Guideline range of 92 to 115 months for the
conspiracy charge calculated without the obstruction of justice enhancement. See
U.S.S.G. (Sentencing Table).
It is clear that Barrios’s sentence did not result in double counting or
duplicative punishment for his failure to appear for sentencing. Even if the
sentence had resulted in double counting, Barrios’s argument that the sentence
4
would violate the Double Jeopardy Clause is precluded by the precedent of this
Circuit and the Supreme Court. See Witte v. United States, 515 U.S. 389, 398, 115
S. Ct. 2199, 2205 (1995); United States v. Carey, 943 F.2d 44, 46 (11th Cir. 1991).
Nothing in United States v. Booker, casts doubt on that precedent. 125 S. Ct. 738,
753-54 (2005). On the contrary, in Booker, the Supreme Court rejected the
argument of the Government that Witte precluded the application of United States
v. Blakely, 124 S. Ct. 2531 (2004), to the United States Sentencing Guidelines. Id.The Court reiterated the holding in Witte, that “consideration of information about
the defendant’s character and conduct at sentencing does not result in ‘punishment’
for any offense other than the one of which the defendant was convicted,” Id.(citations omitted), and noted that Witte did not present the issue raised in Booker.
The district court did not err in calculating the sentence.
AFFIRMED.
5