United States v. Ernesto Franco

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0238n.06
Filed: March 31, 2009
No. 07-2286
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
ERNESTO FRANCO )
)
Defendant-Appellant. )
)
BEFORE: KEITH, COLE, and McKEAGUE, Circuit Judges.
DAMON J. KEITH, Circuit Judge. Defendant-Appellant Ernesto Franco was arrested by
federal agents for drug possession following a reverse sting operation and charged with one count
of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). A jury
returned a guilty verdict and he was sentenced by the United States District Court for the Eastern
District of Michigan to 136 months’ imprisonment. After affirming Franco’s conviction on appeal,
this Court vacated his sentence and remanded to the district court for re-sentencing in light of the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). At re-sentencing, the
district court refused to consider Franco’s U.S.S.G. § 2D1.1 objection to his previously calculated
advisory imprisonment range even as it revised his sentence downward to 120 months’
imprisonment. In the instant appeal, Franco challenges the lower court’s revised sentencing order.
No. 07-2286
United States v. Franco
He claims the district court erred (1) in its application of U.S.S.G. § 2D1.1 by characterizing sham
cocaine, sold to him by undercover operatives, as part of the relevant drug quantity during the initial
sentencing; and (2) by refusing to consider this objection during re-sentencing. For the following
reasons, we AFFIRM the district court’s revised sentencing order.
I. BACKGROUND
On March 23, 1995, federal agents arrested Defendant-Appellant Ernesto Franco (“Franco”)
through a reverse sting operation in which Franco purchased what he believed to be nine kilograms
of cocaine, contained in nine individually wrapped, one kilogram packages. In reality, an undercover
agent and undercover informant supplied Franco with only one package containing actual cocaine,
while the remaining eight packages consisted of sham cocaine, lacking any trace of a controlled
substance. During the deal, Franco provided an initial payment of $39,546 and informed his
“suppliers” that he was going to return with the remaining balance after he stored the drugs. The
nearly $40,000 was allegedly sufficient to purchase only two kilograms of cocaine at the then-
existing market rate. Franco departed from the sellers with all nine kilograms in his possession and
was arrested shortly thereafter.1
Franco was indicted on one count of possession with intent to distribute cocaine in violation
of 21 U.S.C. § 841(a)(1) and later convicted by a jury for that offense on May 28, 1999. In the
Presentence Investigation Report (PSR), the probation officer assigned Franco a total offense level
1
This Court provided a detailed factual account of the events leading up to Franco’s arrest
in the prior appeal. United States v. Franco (Franco I), 484 F.3d 347, 349-50 (6th Cir. 2007).
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of 32 under § 2D1.1 of the Sentencing Guidelines because he found the offense involved at least
five, but less than 15 kilograms of cocaine. See U.S.S.G. § 2D1.1(c)(4) (1998).2 Franco’s lack of
a prior criminal history led the probation officer to recommend an imprisonment range of 121 to 151
months. The district court ultimately issued a mid-range sentence of 136 months’ imprisonment in
addition to a mandatory five year term of supervised release.
Franco timely appealed his sentence, but for various reasons the appeal was not heard by this
Court until January 30, 2007.3 He raised several arguments challenging his culpability under 21
U.S.C. § 841(a)(1), all of which the Court denied in affirming the conviction. Franco I, 484 F.3d
at 351-57. Franco also challenged his sentence based on an alleged denial of a right to jury
determination, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and argued the lower court
misapplied U.S.S.G. § 2D1.1 in determining his guideline range by including the eight kilograms
of separately packaged sham cocaine in the relevant drug quantity used to determine his offense
level. Brief for Defendant-Appellant, Franco I, 484 F.3d 347 (6th Cir. 2007) (No. 99-2194), 2006
2
Pursuant to 18 U.S.C. § 3742(g), the 1998 edition of the Guidelines, which was in effect at
time of initial sentencing, was also applied by the district court during Franco’s re-sentencing in
October 2007. Section 2D1.1 establishes the base offense level for drug possession violations under
21 U.S.C. § 841(a)(1). U.S.S.G. § 2D1.1, cmt. Statutory Provisions. The drug quantity table located
in U.S.S.G. § 2D1.1(c) determines the relevant base offense level based on the type of controlled
substance and the amount involved in the offense. See U.S.S.G. § 2D1.1(a)(3), (c) n. A.
3
On June 16, 2000, this Court dismissed Franco’s initial attempt at appeal for want of
prosecution because of a failure to file a joint appendix. He filed a motion for post-conviction relief
pursuant to 28 U.S.C. § 2255 in the district court. The district court equitably tolled the statute of
limitations, which had already passed, and denied the petition on the merits of Franco’s ineffective
assistance of counsel claim. On July 14, 2005, he renewed his motion to open his appeal, which this
Court granted on November 15, 2005. Notwithstanding the earlier habeas petition, his case remained
a direct appeal of his conviction and sentencing when argued on January 30, 2007. Franco I, 484
F.3d at 350.
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WL 5721960, *15-20. The Court rejected Franco’s Apprendi argument but did not address the
calculation of Franco’s guideline range. See Franco I, 484 F.3d at 356-57. Because Franco’s direct
appeal was still pending when the Supreme Court issued its decision in United States v. Booker, the
Court vacated his sentence and remanded the case to the district court for “the limited purpose of
determining a sentence under the now-advisory Guidelines.” Franco I, 484 F.3d at 357; see
generally Booker, 543 U.S. at 245.
During re-sentencing, Franco again argued the lower court misapplied U.S.S.G. § 2D1.1 by
including the eight kilograms of separately packaged sham cocaine as part of his relevant drug
quantity. The district court refused to consider Franco’s argument, deeming the objection “not
timely” and implying it went beyond the scope of the Franco I remand. Transcript of Re-sentencing
Hearing at 5, United States v. Franco, No. 95-80248 (E.D. Mich. Oct. 4, 2007) (remarking that
Franco’s re-sentencing was “really [about] allocution”). After weighing the relevant 18 U.S.C. §
3553(a) sentencing factors, the district court revised Franco’s sentence downward to 120 months,
the statutory minimum. Id. at 11. His five year term of supervised release was left undisturbed.
The instant appeal followed on October 9, 2007. Franco claims the district court erred in its
application of U.S.S.G. § 2D1.1 during initial sentencing and that it also erred by refusing to
consider his objection during re-sentencing. He seeks a remand for re-sentencing under U.S.S.G.
§ 2D1.1 based on a reduced drug quantity.
II. ANALYSIS
A. Scope of the Remand
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Franco argues the Franco I remand authorized the district court to re-sentence him de novo
and thus enabled the court to revisit his guideline calculation. Appellate courts have the authority
to grant either general or limited remands for re-sentencing. United States v. Orlando, 363 F.3d 596,
601 (6th Cir. 2004). In the case of a general remand, the district court may re-sentence a defendant
de novo, whereas a limited remand restricts the district court’s authority “to the issue or issues
remanded.” Id. In other words, a district court is limited by the scope of the remand under which
it operates. United States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997). The interpretation of a
remand is a legal issue, which this Court reviews de novo. See United States v. O’Dell, 320 F.3d
674, 679 (6th Cir. 2003).
In this case, there is little doubt the Court issued a “limited remand” in ordering Franco’s re-
sentencing. “The difference between the limited mandates and the general mandates is the presence
of limiting language.” Id. at 680. In Franco I, we stated our remand was “for the limited purpose
of re-sentencing in light of Booker.” 484 F.3d at 349. We confirmed the narrow scope of the
remand later in the opinion by emphasizing it was “for the limited purpose of determining a sentence
under the now-advisory Guidelines.” Id. at 357. Given that we twice stated we remanded with a
“limited purpose,” the remand cannot reasonably be construed to be general in nature. Such
restricting language as was found in our opinion constitutes an “unmistakable” indication that the
Court never contemplated a general remand. See United States v. Campbell, 168 F.3d 263, 268 (6th
Cir. 1999).
The question remains, however, whether Franco’s U.S.S.G. § 2D1.1 objection fell within the
scope of this limited remand. The government argues it did not, relying upon our statement in
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United States v. Haynes, 468 F.3d 422, 425 (6th Cir. 2006), that “[r]emands for consideration in light
of Booker are for the purpose of allowing the sentencing court to determine if it would have granted
a different sentence, had it known at the time of sentencing that the Sentencing Guidelines were
advisory, not mandatory.” The government maintains Franco’s U.S.S.G. § 2D1.1 objection plainly
falls outside the scope of this limited mandate.
But as we have previously recognized, “Haynes offers no support for the proposition that
issues related to guidelines determinations-matters that are inextricably linked to the sentencing
process-are not properly before the court following a Booker remand.” United States v. Nanez, No.
06-6039, 2007 WL 2386474, *2 (6th Cir. Aug. 21, 2007) (unpublished). Haynes merely prohibits
a sentencing court from entertaining challenges to a defendant’s underlying conviction when the
prior remand order is limited to re-sentencing in light of Booker. See id. It does not foreclose the
district court from revisiting a defendant’s objections to the initial sentencing guidelines
computation. See id. As indicated by Nanez, a Booker remand permits a defendant to revisit those
sentencing objections properly raised and preserved earlier in the litigation, which have yet to be
decided on appeal. See id. Notably, the government conceded this very point at oral argument. As
a result, the issue for this Court becomes whether Franco adequately raised and preserved his
objection to the district court’s application of U.S.S.G. § 2D1.1 prior to the Franco I remand.
At the re-sentencing hearing held on October 4, 2007, the district court refused to consider
Franco’s U.S.S.G. § 2D1.1 argument because it found his objection to be untimely.4 Transcript of
4
The district court judge also implied he would not rule on the objection because it was
beyond the scope of the Booker remand when he stated that Franco’s re-sentencing was “really
[about] allocution.” Transcript of Re-sentencing Hearing at 5. As suggested herein, the timeliness
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Re-sentencing Hearing at 5. A failure to object on particular grounds at sentencing generally forfeits
any challenge to the sentence on those same grounds during appeal, although an appellate court may
overlook a defendant’s failure to do so. See United States v. Wade, 266 F.3d 574, 585-86 (6th Cir.
2001). But when a defendant seeks appellate review of an issue underlying a district court’s
decision, he will not be permanently “barred from reasserting that issue in any subsequent appeals
occurring in that case.” See United States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000). By
extension, the defendant would similarly be barred from raising the issue on remand in the district
court if he neglected to assert it in the preceding appeal. Thus, Franco would only be foreclosed
from challenging his guidelines calculation during re-sentencing if he had failed to raise the issue
in Franco I.
Review of the prior appeal reveals that Franco adequately preserved his objection to the
relevant drug quantity considered by the district court. In his brief filed in the prior appeal, Franco
specifically argued:
Significantly, Mr. Franco was not charged with attempting to possess with intent to
distribute under 21 U.S.C. §§ 841(a)(1) and 846. Cf. United States v. Pennell, 737
F.2d 521 at n.2 (6th Cir. 1984) (upholding conviction for attempt to possess with
intent to distribute despite use of sham cocaine in reverse sting but emphasizing that
that was an attempt case, not one charged under 841(a)(1)). He was charged with
actual possession with intent to distribute, a crime requiring the possession of an
actual controlled substance. Because he only actually possessed one kilogram of
cocaine, but he was sentence (sic) for the possession of nine kilograms, his
conviction and sentence must be reversed.
of Franco’s objection and the scope of the remand in this case are interrelated and most efficiently
addressed together.
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Mr. Franco was unfairly prejudiced [when charged with possession of nine kilograms
of cocaine], as he was sentenced pursuant to a guideline range that resulted in a 136
month sentence. But “In calculating the applicable guideline range, the district court
was . . . required to consider ‘the entire weight of any mixture or substance
containing a detectable amount of the controlled substance.(sic)” United States v.
White, No. 97-6132, 1998 U.S. App. LEXIS 20665 (6th Cir., Aug. 11, 1998) (quoting
U.S.S.G. § 2D1.l(c) Drug Quantity Table). If the district court had started with the
offense level specified in U.S.S.G. § 2D1.1 for one kilogram of cocaine, level 26, Mr.
Franco would have had a sentence imposed between 63 and 78 months, and may
have already completed his sentence by now.
Brief for Defendant-Appellant, 2006 WL 5721960, at *20 (emphasis added). Franco claimed the
district court erred by sentencing him under U.S.S.G § 2D1.1 for possession of nine kilograms of
cocaine, when in reality he possessed only one kilogram containing actual cocaine. Thus, he
disputed his sentence based on the inclusion of the eight kilograms of sham cocaine sold to him
during the reverse sting operation. This is precisely the same argument Franco raised in his objection
at re-sentencing, and in the brief he submitted on this appeal.
Although Franco I acknowledged Franco’s opposition to the lower court’s scoring of the
eight kilograms of sham cocaine, it never reached the issue before remanding the case. See Franco
I, 484 F.3d at 355. We specifically limited our discussion of sham cocaine to Franco’s separate
argument that a jury, rather than the judge, should have determined the type and quantity of drugs
upon which his sentence was based pursuant to the Supreme Court’s decision in Apprendi. See id.
at 356. Franco’s contention that the district court misapplied U.S.S.G. § 2D1.1 in calculating his
guideline range, however, represented a distinct basis for challenging his sentence that was not
resolved by our Apprendi analysis. Thus, Franco’s U.S.S.G. § 2D1.1 objection was left undecided
in his prior appeal.
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Because Franco raised the U.S.S.G. § 2D1.1 objection based on the inclusion of the sham
cocaine in his prior appeal and the issue was left undecided by the Court, he was not barred from
asserting it at re-sentencing following the Booker remand as well as in this appeal. See McKinley,
227 F.3d at 718. To find to the contrary would improperly “insulate the district court’s guidelines
computations from appellate review.” Nanez, 2007 WL 2386474, at * 2. Therefore, the district
court erred in refusing to consider Franco’s U.S.S.G. § 2D1.1 objection following the remand for
re-sentencing in light of Booker.5
We are compelled to note that Franco also raised a U.S.S.G. § 2D1.1 objection during initial
sentencing. In the presentencing memorandum submitted to the district court, Franco claimed
through counsel that the district court improperly applied U.S.S.G. § 2D1.1 by finding that the
relevant drug quantity was nine kilograms when the evidence allegedly established that he only had
funds to pay for approximately two kilograms. Defendant’s Memorandum in Support of Sentencing
Submission, United States v. Franco, No. 05-80248 (E.D. Mich. Sep. 23, 1999). The ability-to-pay
theory, however, arguably represents a different rationale for attacking the district court’s application
of U.S.S.G. § 2D1.1 than that raised by the Defendant in Franco I, where he opposed the guideline
calculation due to the inclusion of sham cocaine in his relevant drug quantity. As mentioned above,
the consideration of sham cocaine was also the basis for Franco’s objection at re-sentencing as well
as the argument Franco relied upon in his brief filed in the instant appeal. It was only at oral
5
Given that Franco properly raised and preserved his U.S.S.G. § 2D1.1 objection, we need
not decide the separate question of whether the district court would have had discretion to revisit its
guideline calculation following the Booker remand in the event Franco had not raised the issue
earlier in the litigation.
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argument on the instant appeal did Franco’s counsel resurrect the ability-to-pay challenge to the
lower court’s application of U.S.S.G. § 2D1.1.
A defendant’s failure to object to his sentence before the district court on the same ground
raised on appeal limits subsequent review to plain error. See United States v. Darwich, 337 F.3d
645, 655 n. 11 (6th Cir. 2003). But as demonstrated below, Franco’s arguments on the merits are
not persuasive, whether the district court’s decision is reviewed de novo or only for plain error.
Thus, we need not determine whether Franco materially changed the grounds for his objection such
that the district court’s decision would be subject to a more deferential standard of review. It is
sufficient to rule that Franco’s U.S.S.G. § 2D1.1 objection was properly raised before the district
court at re-sentencing as well as before this Court in the instant appeal.
B. U.S.S.G. § 2D1.1 Objection
Franco contends that a proper application of U.S.S.G. § 2D1.1 would establish a relevant
drug quantity for him of only one kilogram of cocaine. This lesser figure would have reduced his
advisory imprisonment range from 121-156 months to 63-78 months. Franco argues in his brief the
alleged error prejudiced him as he received 120 months’ imprisonment.6
Appellate courts “generally review[] a district court’s drug quantity calculation for clear
error” while “interpretations of the guidelines are legal questions that this Court reviews de novo.”
6
It should be noted that Franco completed his imprisonment term on February 8, 2008, while
this appeal was pending. This case is not moot, however, because he is still subject to five years of
supervised release and his appeal “potentially implicates” the length of that term. United States v.
Maken, 510 F.3d 654, 656 n. 3 (6th Cir. 2007).
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United States v. Olsen, 537 F.3d 660, 663 (6th Cir. 2008). Franco’s opposition to the lower court’s
inclusion of sham cocaine in its relevant drug quantity determination raises a legal argument, which
we find to be without merit. The commentary accompanying U.S.S.G. § 2D1.1 provides in relevant
part:
In an offense involving an agreement to sell a controlled substance, the agreed-upon
quantity of the controlled substance shall be used to determine the offense level
unless the sale is completed and the amount delivered more accurately reflects the
scale of the offense . . . . [I]n a reverse sting, the agreed-upon quantity of the
controlled substance would more accurately reflect the scale of the offense because
the amount actually delivered is controlled by the government, not by the defendant.
U.S.S.G. § 2D1.1 cmt. 12 (“Note 12”) (emphasis added). Note 12, in this respect, makes it plain that
in cases of a reverse sting operation, the relevant figure a sentencing court should consider under
U.S.S.G. § 2D1.1 is the amount of drugs the unsuspecting defendant agreed to purchase because the
defendant’s intention to purchase that amount defines the “scale of the offense.” We find no
authority in the Guidelines, nor in interpreting case law, that says the relevant drug quantity should
be limited to the actual amount of genuine drugs sold. Thus, the presence of fake drugs during such
a reverse sting transaction does not materially diminish the scale of the offense or the severity of the
offender’s sentence. See United States v. Burke, 12 F. App’x 209, 213 (6th Cir. 2001) (holding
defendant responsible for an agreed purchase amount of 100 kilograms of cocaine even though only
75 kilograms, including 74 kilograms of fake cocaine, were actually delivered).
The dispositive fact in this case is that Franco concedes he agreed to buy nine kilograms of
cocaine from the undercover agent and informant.7 Given Note 12’s focus on the “agreed-upon
7
Franco’s PSR states although he agreed beforehand to buy ten kilograms of cocaine, he only
took possession of what he believed to be nine kilograms. The distinction make no difference under
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quantity,” we find Franco’s reliance on the fact that only one kilogram of the drugs handed over to
him contained genuine cocaine to be misplaced. Indeed, Franco’s relevant drug quantity under
U.S.S.G. § 2D1.1 would remain unchanged even if the quantities supplied to him were entirely
devoid of actual cocaine. Thus, the district court properly applied U.S.S.G. § 2D1.1 in holding
Franco responsible for the nine kilograms he agreed to purchase, and which nine kilograms he
actually took possession of, believing them to be nine kilograms of cocaine.
At oral argument, Franco’s counsel further contended that even though Franco agreed to
purchase nine kilograms of cocaine, he should only be held responsible for, at most, $39,546 worth
of drugs–which was the dollar amount Franco brought to the sale and which counsel argued was
barely enough to purchase two kilograms of cocaine. Relying on Note 12, counsel reasoned that
because no significant funds were found by law enforcement on Franco’s person nor in his home
following his arrest, he could not possibly have “intended” to purchase, nor have been “reasonably
capable” of purchasing, all nine kilograms provided to him.8 Counsel instead theorized that Franco
intended to run off with the approximately seven kilograms of cocaine that was fronted him, for
which he still owed payment.
the Guidelines as the drug quantity table assigns the same base offense level of 32 when at least five
kilograms but less than 15 kilograms of cocaine are involved. U.S.S.G. § 2D1.1(c)(4).
8
Note 12 relevantly states that if the “defendant establishes that he or she did not intend to
provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled
substance, the court shall exclude from the offense level determination the amount of controlled
substance that the defendant establishes that he or she did not intend to provide or was not
reasonably capable of providing.”
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Setting aside our doubts on the merits of this argument, we note as a procedural matter that
Franco failed to address this intent/capability argument in the opening brief he submitted on appeal,
in addition to eschewing submission of a reply brief altogether. It is well-established that arguments
not adequately developed are waived on appeal. Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir.
1995). Therefore, we do not find Franco’s Note 12 argument a valid basis for disturbing the district
court’s guideline calculation under U.S.S.G. § 2D1.1.
III. CONCLUSION
For the foregoing reasons, the district court’s amended judgment of sentence is AFFIRMED.
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