United States v. Rivera, Lissett

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3238
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LISSETT RIVERA,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 98 CR 923—Blanche M. Manning, Judge.
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ARGUED MAY 31, 2005—DECIDED JUNE 16, 2005
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Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. In an unpublished order
issued today, we affirm the convictions of Lissett Rivera
and her co-defendants, who according to the jury’s verdict
conspired to distribute more than five kilograms of crack
cocaine. 21 U.S.C. §846. This opinion addresses Rivera’s
objections to her sentence.
A first offender who conspires to distribute more than five
kilograms of cocaine “shall be sentenced to a term of
imprisonment which may not be less than 10 years or more
than life”. 21 U.S.C. §841(b)(1)(A)(ii). Rivera has no prior
2 No. 02-3238
convictions for drug offenses or violent felonies, and given
the jury’s conclusion that she conspired to distribute more
than five kilograms of cocaine the statute calls for a mini-
mum sentence of 10 years’ imprisonment. Yet the district
judge sentenced her to 97 months, and she contends that
even this is too high because the judge should not have
found that she is accountable for her confederates’ use of
weapons, and should have concluded that she is a minor
participant. Adjustments for possessing weapons, or role in
the offense, matter to the Guidelines’ sentencing range but
do not affect statutory minimum sentences. A sentence
below the statutory minimum is proper if the accused
substantially assists the prosecution, see 18 U.S.C.
§3553(e), or qualifies for the “safety valve” in §3553(f), but
neither exception applies.
Because the district judge treated the Guidelines range
rather than the statutory minimum as the effective legal
constraint, Rivera insists that the court violated her right
under the sixth amendment to have the jury determine all
factors that affect the minimum sentence to which she is
exposed. See United States v. Booker, 125 S. Ct. 738 (2005).
Accordingly she seeks a remand under United States v.
Paladino, 401 F.3d 471, 481-85 (7th Cir. 2005)—though, her
counsel informed us after oral argument, not a full remand,
which, for reasons now to be explained, could lead to a
higher sentence. See also United States v. Goldberg, 406
F.3d 891 (7th Cir. 2005).
An argument based on Booker is hard to maintain when
the cornerstone of the defendant’s position is that the jury’s
actual verdict counts for nothing. The jury’s verdict by itself
establishes that Rivera is accountable for five kilograms
and thus must serve the statutory minimum sentence.
Findings that may lead to a higher sentence remain the
judge’s responsibility, but the minimum has been taken out
of the judge’s hands.
No. 02-3238 3
When deciding to disregard the jury’s finding, the district
judge relied on United States v. Young, 997 F.2d 1204, 1209-
10 (7th Cir. 1993), which holds that the drug quantity that
is material to the minimum sentence in a conspiracy case is
the amount for which the defendant is substantively
accountable under Pinkerton v. United States, 328 U.S. 640
(1946)—which is to say, all criminal acts within the scope
of the conspiracy and foreseeable to the accused. Young’s
principle is unexceptionable and applies whenever the judge
must make findings that set a statutory minimum sentence,
something that judges may continue to do even after
Apprendi v. New Jersey, 530 U.S. 466 (2000). See Harris v.
United States, 536 U.S. 545 (2002). But Young does not hold
that judges may disregard the jury’s own conclusion that
some fact has been established. Once the jury has spoken,
its verdict controls unless the evidence is insufficient or
some procedural error occurred; it is both unnecessary and
inappropriate for the judge to reexamine, and resolve in the
defendant’s favor, a factual issue that the jury has resolved
in the prosecutor’s favor beyond a reasonable doubt.
When Young was decided, this court thought that all
disputes about drug type and quantity, to the extent they
affected the sentence, were to be resolved by the judge
rather than the jury. See United States v. Edwards, 105
F.3d 1179 (7th Cir. 1997), affirmed, 523 U.S. 511 (1998).
Apprendi and its successors, such as Booker, establish a
new allocation of tasks between judge and jury. So although
Young’s conclusions about the legal significance of particu-
lar facts remains sound, its assumption that judges neces-
sarily resolve factual disputes about drug quantities has
been superseded.
The jury found that Rivera conspired to distribute more
than five kilograms of cocaine, and she does not maintain
that the evidence is insufficient to support that verdict. She
would have been free to argue at trial that, even if she
joined with the other defendants in a drug-distribution
4 No. 02-3238
venture, the goal (as she understood it) was to distribute
some lower amount; that might have led the prosecutor to
request a lesser-included-offense instruction, so that the
jury could determine whether Rivera’s objectives were less
ambitious, and her knowledge less extensive, than her con-
federates (who, the judge found, actually distributed more
than 150 kilograms of cocaine). We need not speculate,
however, on what could or might have happened. What did
happen at trial fixes Rivera’s minimum penalty at 120
months’ imprisonment.
By deciding not to take a cross-appeal, the United States
has ensured that Rivera’s sentence cannot be increased. But
the lack of a cross-appeal does not entitle Rivera to another
shot at a sentence below 97 months, if the only lawful
outcome on remand would be application of the statutory
minimum. It is accordingly unnecessary for us to consider
whether Rivera’s sentencing range under the Guidelines
was calculated correctly; she cannot benefit from
resentencing. Nor is a remand under Paladino appropriate,
for Booker does not confer on district judges any discretion
to give sentences below statutory floors. Any error the
district judge may have made in resolving factual disputes
in order to apply the Guidelines was harmless. Cf. United
States v. Lee, 399 F.3d 864 (7th Cir. 2005).
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-16-05