IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20978
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
Nicholas SANCHEZ
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-89-CR-411-4)
February 23, 1999
Before HIGGINBOTHAM, JONES and DENNIS, Circuit Judges.
PER CURIAM:*
In March 1990, Sanchez was convicted by a jury of the
following offenses: conspiracy to aid and abet in the possession
with the intent to distribute cocaine (count one); aiding and
abetting the possession of cocaine with the intent to distribute
(count three); and money laundering (count four). He was sentenced
to 324 months of imprisonment for count one and three, and 240
months for count four, to run concurrently. Sanchez’s conviction
on count four was reversed on appeal, and he was resentenced in
1992 to 324 months of imprisonment for counts one and three.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
In March 1997, Sanchez filed a motion under § 2255 alleging
that count one did not state an offense against the United States,
his trial and appellate counsel were ineffective for failing to
raise the issue, and his appellate counsel was ineffective for
failing to tell him of his right to appeal after resentencing. The
district court allowed Sanchez to file an out-of-time appeal of his
resentencing but denied the motion in all respects otherwise.
Sanchez then filed a notice of appeal raising two arguments.
Sanchez’s first argument is that the indictment against him
was insufficient because there is no such crime as “conspiracy to
aid and abet” in the context of drug-trafficking offenses. Sanchez
raises this argument for the first time on appeal after his
resentencing. A claim that an indictment is so deficient as to
deprive the convicting court of jurisdiction is an issue that is
cognizable under a § 2255 motion. United States v. Prince, 868
F.2d 1379, 1383 (5th Cir. 1989). However, when such a claim is
raised for the first time in a § 2255 habeas petition, the
appellate court can “consider the challenge only in exceptional
circumstances." Id. at 1384. Furthermore, the indictment is
entitled to liberal review in favor of the government and will be
held sufficient if "by any reasonable construction" it is
understood to charge an offense. Id.
Here, the indictment can easily be understood essentially to
charge the offenses of conspiracy and possession. In fact, the
jury instructions addressing counts one and three only outlined the
definitions of conspiracy and possession without mention of “to aid
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and abet.” Likewise, the original judgment and the one after the
resentencing both recite that Sanchez was adjudged guilty of
“conspiracy to possess with intent to distribute . . .” and not
conspiracy to aid and abet the distribution of cocaine.
Despite the wording of the indictment, it appears as though
Sanchez was convicted of conspiracy to possess with the intent to
distribute cocaine and with possession of cocaine; both are valid
counts in an indictment. We find that Sanchez’s challenge
regarding the sufficiency of his indictment does not rise to the
level of “exceptional circumstances” necessary to sustain a
challenge.
Sanchez’s second argument is that the district court violated
the Due Process and Double Jeopardy Clauses by failing to depart
downwardly at the resentencing hearing after his conviction on
count four was reversed. The district court’s decision not to
depart downward was based upon its determination that departure was
not warranted on the facts of Sanchez’s case. Therefore, this
court lacks jurisdiction to review Sanchez’s second argument. See
United States v. Lugman, 130 F.3d 113, 115 (5th Cir. 1997) (holding
trial court’s decision to refuse downward departure may not be
reviewed if refusal was based trial court’s determination that
departure is not warranted on the facts of the case).
Accordingly, Sanchez’s argument that the indictment was
insufficient is DENIED, and his argument about downward departure
is DISMISSED for lack of subject-matter jurisdiction.
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