United States v. Alejandro Barragan-Sanchez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14220 JANUARY 30, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00031-CR-ORL-31-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO BARRAGAN-SANCHEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 30, 2006)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Alejandro Barragan-Sanchez (Sanchez) appeals his mandatory minimum
120-month sentence, imposed after he pled guilty to conspiring to possess with
intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. On
appeal, he argues that mandatory minimum sentences conflict with the sentencing
purposes of 18 U.S.C. § 3553(a) and are unconstitutional in light of United States
v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons
set forth more fully below, we affirm.
Sanchez pled guilty to the aforementioned charge before a magistrate and
admitted to, inter alia, being the half-owner of eight kilograms of cocaine
sometime during January 2003. The magistrate accepted Sanchez’s plea as
knowing and voluntary.
A presentence investigation report (PSI) set Sanchez’s offense level at 32
based upon a finding of between 1,000 and 3,000 kilograms of marijuana
equivalency, U.S.S.G. § 2D1.1(c)(3). Sanchez received a two-level enhancement
for being a manager or supervisor in the criminal activity. Next, Sanchez was
given a three-level reduction for acceptance of responsibility pursuant to U.S.S.G.
§§ 3E1.1(a) and (b), for a total offense level of 31. Sanchez was found to be at
criminal history category II, which at offense level 31, provided for a guidelines
range of 121-151 months’ imprisonment. The mandatory minimum sentence was
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10 years, or 120 months, pursuant to 21 U.S.C. § 841(b)(1)(A).
Sanchez objected to the two-level role enhancement, and also argued that the
sentencing guidelines were unconstitutional in light of Blakely v. Washington, 542
U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Sanchez also requested that,
rather than being sentenced at the low-end of the guidelines, 121 months, he be
sentenced to 120 months’ imprisonment, the mandatory minimum. The
government supported Sanchez’s request, noting that a 120-month sentence would
avoid any issues under Blakely. The court declined the invitation, and sentenced
Sanchez to 121 months’ imprisonment.
While Sanchez’s case was pending on appeal, the Supreme Court issued its
decision in United States v. Booker, rendering the guidelines advisory instead of
mandatory, and the government filed a motion requesting that the district court
certify that a remand was warranted in order to correct the error and resentence
Sanchez. The district court granted the motion, and issued an order stating that it
was inclined to resentence Sanchez. Subsequently, this Court granted the
government’s motion for a remand for resentencing.
At resentencing, Sanchez, in order to preserve the record, requested that the
district court sentence him below the 120-month mandatory minimum, arguing that
mandatory minimum sentences violated the Fifth, Sixth, and Eighth Amendments
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in light of Booker. The district court stated that it was bound by precedent and
that, but for the guidelines, it probably would have sentenced Sanchez to the
mandatory minimum. Accordingly, Sanchez’s sentence was reduced one month to
120 months’ imprisonment, the statutory minimum.
On appeal, Sanchez concedes that we previously have upheld the
constitutionality of mandatory minimum sentences in drug cases, including after
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),
but argues that, post-Booker, mandatory minimum sentences now infringe on a
judge’s discretion and duty to impose a sentence sufficient, but not greater than
necessary, to achieve the sentencing goals based upon 18 U.S.C. § 3553(a).
Sanchez argues that some sentences below mandatory minimums are sufficient, but
not greater than necessary, to achieve sentencing purposes under § 3553(a), and,
therefore, mandatory minimums create a conflict between Booker’s remedial
scheme and federal sentencing law. Thus, Sanchez argues that the rule of lenity
requires this Court to proceed in a manner that favors defendants and permit
§ 3553(a) to “trump” mandatory minimum sentences, thereby permitting courts to
take the minimum into account, but sentence below what, in essence, would be an
advisory minimum sentence.
We review constitutional challenges to a sentence de novo. United States v.
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Chau, 426 F.3d 1318, 1321 (11th Cir. 2005). To the extent the question raised is
one of statutory interpretation, review is also de novo. United States v. Searcy, 418
F.3d 1193, 1195 (11th Cir. 2005), cert. denied, (U.S. Jan. 9, 2006) (No. 05-7922).
In Booker, the Supreme Court explicitly reaffirmed its holding in Apprendi
that “[a]ny fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” United States v. Booker, 543 U.S. at ___, 125 S.Ct. at
756. In a second, remedial opinion, the Court held that the guidelines were no
longer mandatory, but advisory, and district courts should take the guidelines into
account when considering all of the sentencing factors set forth at 18 U.S.C.
§ 3553(a). Id. at ___, 125 S.Ct. at 764, 767-69. Nothing in Booker, however,
eliminated or declared unconstitutional mandatory minimum sentences as provided
for by Congress in drug crimes.
Pre-Booker and Apprendi, we upheld the constitutionality of mandatory
minimum sentences, noting that, “within the congressionally established range for
sentences, nothing in section 841(b)(1) restricts the discretion of a sentencing
judge in fashioning an individualized sentence in light of the specific facts of the
offense and history of the offender.” United States v. Holmes, 838 F.2d 1175,
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1177 (11th Cir. 1988) (rejecting argument that mandatory minimums violate due
process). Post-Apprendi, the Supreme Court upheld the constitutionality of
mandatory minimum sentences. Harris, 536 U.S. at 568-69, 122 S.Ct. at 2420.
The Supreme Court in Booker made no mention of Harris, nor has it overruled it
since.
Accordingly, while it is possible that Booker’s remedial scheme could
implicate mandatory minimum sentences in the future, until the Supreme Court
holds that mandatory minimums violate the Fifth and Sixth Amendments of the
Constitution, we are obliged to continue following Harris as precedent. As we
recently stated:
It is not given to us to overrule the decisions of the Supreme Court.
We have stated repeatedly, and with respect to the very issue
presented in this appeal, that ‘we are not at liberty to disregard
binding case law that is so closely on point and has been only
weakened, rather than directly overruled, by the Supreme Court.’
This is so even if we are convinced that the Supreme Court will
overturn its previous decision the next time it addresses the issue.
United States v. Gibson, No. 04-14776, manuscript op. at 22-23 (11th Cir. Jan. 4,
2006) (holding that, while wounded, the Supreme Court’s decision in Almendarez-
Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998)
remains binding precedent) (citations omitted). Thus, unless and until the Supreme
Court holds that mandatory minimum sentences violate the Constitution, Sanchez’s
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argument lacks merit.1 See also United States v. Shelton, 400 F.3d 1325, 1333
n.10 (11th Cir. 2005) (“[w]e emphasize that the district court was, and still is,
bound by the statutory minimums.”).
Lastly, to the extent that Sanchez is arguing that mandatory minimums
conflict with the statutory sentencing duties of a court under 18 U.S.C. § 3553(a),
this argument lacks merit. Congress specifically granted district courts the
authority to sentence below a prescribed mandatory minimum sentence in limited
circumstances, such as where a defendant provides substantial assistance to
authorities, or in the case of a defendant with little to no criminal history who
meets other criteria.2 See 18 U.S.C. §§ 3553(e) and (f). The fact that Congress has
chosen to set a sentencing floor for drug crimes does not conflict with § 3553(a),
but rather provides a starting point for sentencing. As the Supreme Court noted in
Harris, judicial discretion may be channeled when certain findings are made, and in
the instant case, Sanchez admitted to the drug amount triggering his mandatory
1
It is noted as well that Sanchez admitted during his plea colloquy to the amount of drugs
used to trigger the mandatory minimum sentence of 120 months’, precluding any possible Booker
constitutional error, and was resentenced under the advisory guidelines scheme, precluding any
possible statutory error.
2
The government urges us to apply the doctrine of expressio unius est exclusio alterius
(mention of one thing implies the exclusion of the other). This is one method of statutory
construction, but does not carry the rule or force of law. See United States v. Camacho-Ibarquen,
410 F.3d 1307, 1312-13 (11th Cir. 2005). While the government’s argument may have merit, we
decline to address the issue at this time.
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minimum. See Harris, 536 U.S. at 567, 122 S.Ct. at 2419. While mandatory
minimum sentences are open to criticism, such as the failure to take into account
the unique circumstances of certain offenders, these issues and questions are best
left to Congress. Id. at 568-69, 122 S.Ct. at 2420.
Based on the foregoing, we affirm Sanchez’s 120-month sentence, which
was required by statute.
AFFIRMED.
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