United States v. Esteves Antonio

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4791
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS ESTEVEZ ANTONIO, a/k/a Jesus Antonio Estevez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:06-cr-00500-CMH)
Argued: December 5, 2008 Decided: February 23, 2009
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Richard Donald Dietz, KILPATRICK & STOCKTON, L.L.P.,
Winston-Salem, North Carolina, for Appellant. Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Adam Howard Charnes, KILPATRICK &
STOCKTON, L.L.P., Winston-Salem, North Carolina, for Appellant.
Chuck Rosenberg, United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesus Estevez Antonio (Estevez) appeals his sentence
for distribution of crack cocaine and conspiracy to distribute
powder cocaine on the grounds that the district court erred in
treating the sentencing guidelines for crack cocaine as
mandatory. Estevez contends that he should be resentenced in
light of Kimbrough v. United States, __ U.S. __, 128 S. Ct. 558(2007), a case decided after he was sentenced by the district
court. Kimbrough held that the crack sentencing guidelines,
“like all other Guidelines, are advisory only.” 128 S. Ct. at
564. We conclude that Estevez raised a Kimbrough-type objection
at his sentencing hearing, thereby preserving for appeal the
argument that the crack guidelines are advisory. Because
Kimbrough requires that Estevez be resentenced, we vacate his
sentence and remand for resentencing.
I.
In October 2006 Estevez and his codefendant, Ruben
Chavez Paz, were arrested and charged in a criminal complaint
with conspiracy to distribute cocaine. The substance seized
from Estevez and Chavez Paz when they were arrested appeared to
the naked eye to be powder cocaine. Chavez Paz pled guilty to a
one-count information charging him with conspiracy to distribute
powder cocaine in violation of 21 U.S.C. § 846; he was sentenced
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to 70 months in prison. After Chavez Paz’s plea and sentence,
but before Estevez’s indictment, government lab results showed
that the cocaine seized from the defendants was actually crack
cocaine. Thereafter, Estevez was indicted for conspiring to
distribute both powder and crack cocaine, see 21 U.S.C. § 846(count 1); distributing 5 or more grams of crack cocaine, see
id. § 841(a)(1) (count 2); distributing 50 or more grams of
crack cocaine, see id. § 841(a)(1) (count 3); and tampering with
witnesses, see 18 U.S.C. §§ 1512(a)(2)(C), 1512(b)(3) (counts 4
and 5). The jury convicted Estevez on the charge of conspiracy
to distribute powder cocaine and the two charges of distributing
crack cocaine; he was acquitted on the remaining charges.
Estevez’s presentence report calculated a guidelines
range of 151 to 188 months in prison. At the sentencing hearing
Estevez made two arguments relevant to this appeal. First, he
contended that the district court should take into account the
fact that his codefendant, Chavez Paz, had received a sentence
of 70 months and that it would be improper for him to receive a
substantially higher sentence for engaging in identical conduct.
Second, he pointed out that the U.S. Sentencing Commission was
seeking congressional approval of guideline amendments that
would reduce the sentencing disparity for crack and powder
cocaine offenses. Estevez’s sentencing exposure on his crack
cocaine convictions illustrate the disparity. At the time of
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Estevez’s sentencing, for example, a defendant, like Estevez,
convicted of distributing 5 grams of crack cocaine faced the
same sentence as a defendant who distributed 500 grams of powder
cocaine. This disparity had come to be known as the “100:1
disparity” or the “crack/powder disparity.” The guidelines for
crack cocaine have since been amended to reduce this disparity.
U.S. Sentencing Commission Guidelines Manual (U.S.S.G.), supp.
to app. C, amend. 706 (2007); see U.S.S.G. § 2D1.1 (2008).
At the time of Estevez’s sentencing, case law in this
circuit did not permit a district court to use the 100:1
disparity as a basis for a variance sentence below the
guidelines range for crack cocaine offenses. United States v.
Eura, 440 F.3d 625, 632-34 (4th Cir. 2006). In Estevez’s case
the district court found that “the Guideline factors” for
Estevez’s crack and conspiracy convictions had been “properly
assessed at a range of 151 to 188 months,” J.A. 56, and the
court imposed a sentence of 151 months. The court did not
discuss the crack/powder disparity arguments made by Estevez.
Estevez appealed his sentence, and on November 6,
2007, his trial counsel filed a brief under Anders v.
California, 386 U.S. 738 (1967), stating that he believed that
Estevez had no meritorious issues on appeal. On December 10,
2007, the Supreme Court decided Kimbrough v. United States,
which held that “it would not be an abuse of discretion for a
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district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a sentence
‘greater than necessary’ to achieve [18 U.S.C.] § 3553(a)’s
purposes, even in a mine-run case.” 128 S. Ct. at 575.
Kimbrough overruled United States v. Eura, which had made “the
crack/powder disparity effectively mandatory.” Id. at 564.
In January 2008 Estevez filed a pro se brief
challenging his sentence as inconsistent with Kimbrough. We
ordered supplemental briefing on Kimbrough’s effect on Estevez’s
appeal, and we twice appointed new counsel for him. The central
issue is whether we should order a new sentencing hearing to
allow the district court to reconsider Estevez’s sentence in
light of Kimbrough.
II.
The government argues that Estevez did not preserve a
Kimbrough-type objection to the district court’s treatment of
the crack/powder guidelines disparity as mandatory. In order to
preserve a claim of error, a party must “inform[] the court --
when the court ruling or order is made or sought -- of the
action the party wishes the court to take.” Fed. R. Crim. P.
51. “While the Rule does not require surgical precision to
preserve error, the objection must be sufficient to ‘bring into
focus the precise nature of the alleged error.’” Exxon Corp. v.
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Amoco Oil Col., 875 F.2d 1085, 1090 (4th Cir. 1989) (quoting
Palmer v. Hoffman, 318 U.S. 109, 119 (1943)).
Estevez made two arguments at his sentencing hearing
that, taken together, were sufficient to preserve for appeal a
challenge to the crack/powder disparity in the sentencing
guidelines. First, he argued that he should receive a sentence
commensurate with that of his codefendant, Chavez Paz, who
engaged in identical activity. While this argument did not
mention the 100:1 disparity in so many words, the difference in
guidelines treatment for crack and powder cocaine offenses is in
part the foundation for the argument. One of the primary
reasons for the difference between Estevez’s sentence (151
months) and Chavez Paz’s (70 months) was that Estevez’s
conviction was for crack cocaine, while Chavez Paz’s was for
powder cocaine. This sentencing difference occurred despite the
fact that the pair engaged in the exact same criminal behavior.
Estevez contends, therefore, that his request for parity in
sentencing with Chavez Paz should thus be viewed as an argument
against treating powder and crack cocaine differently for
sentencing purposes. This argument is undercut to some extent
by the fact that the basic reason for the difference in
sentences was that Chavez Paz was mischarged with a powder
cocaine offense and managed to plead guilty before the
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government’s lab results were completed. Nevertheless, the
argument was grounded in the 100:1 disparity.
Estevez’s position is bolstered by his second argument
in district court. Estevez emphasized the proposal by the
Sentencing Commission to reduce the crack/powder guidelines
disparity. In doing so, he was asking the district court to
consider the Commission’s proposal as confirmation that the
100:1 disparity was excessive and that a downward variance was
warranted. This placed the crack/powder disparity before the
district court and was enough to bring into focus Estevez’s
assertion that a sentence within the then-existing guidelines
range for crack offenses was greater than necessary to achieve
the goals of § 3553(a) in his case. In addition, Estevez’s
lawyer acknowledged, in obvious recognition of Eura, that he was
“preserv[ing] th[e] argument for Mr. Estevez.” J.A. 48. The
government’s response at the hearing reveals that it understood
the gist of Estevez’s argument. The government said that
Estevez, in requesting a lighter sentence to avoid the
disparity, was “asking the Court to ignore the statutory scheme
as it exist[ed]” at the time. J.A. at 53-54.
Estevez’s arguments were sufficient to preserve his
objection to treating the guidelines for crack cocaine as
mandatory. Because Estevez preserved his objection, and because
Kimbrough now makes clear that it was error for the district
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court to treat the crack cocaine guidelines as mandatory, the
burden is on the government to establish that the error was
harmless. See United States v. Robinson, 460 F.3d 550, 557 (4th
Cir. 2006). The government has not met its burden because it
has not pointed to anything in the record to indicate that the
district court would have imposed the same 151-month sentence on
Estevez if it had had the benefit of Kimbrough at the time of
sentencing. Estevez is therefore entitled to a new sentencing
hearing, which will allow the district court to reconsider the
sentence in light of Kimbrough. Estevez’s sentence is vacated,
and his case is remanded for resentencing.
VACATED AND REMANDED
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