Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1110
UNITED STATES,
Appellee,
v.
JEAN COLON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, U.S. District Judge]
Before
Boudin, Howard and Thompson,
Circuit Judges.
Victoria M. Bonilla and Bourbeau & Bonilla, LLP on brief for
appellant.
Kelly Begg Lawrence, Assistant U.S. Attorney, Dina Michael
Chaitowitz, Assistant U.S. Attorney, Chief of Appeals, and Carmen
M. Ortiz, U.S. Attorney, on Motion for Summary Disposition for
appellee.
September 2, 2010
Per Curiam. Defendant-appellant Jean Colon appeals from
his 120-month prison sentence, the statutory mandatory minimum
sentence imposed on the basis of the district court's determination
by a preponderance of the evidence that he was accountable for five
kilograms of cocaine in connection with the conspiracy charge to
which he pled guilty. The government has filed a motion for
summary disposition. We affirm.
I. Apprendi Challenge
Colon asks this court to overrule its precedents holding
that judicially-found facts may be used to increase a mandatory
minimum sentence without running afoul of the Sixth Amendment. See
United States v. Malouf, 466 F.3d 21, 27 (1st Cir. 2006).
Appellant relies upon recent concurring opinions by Justices
Stevens and Thomas in United States v. O'Brien, 130 S.Ct. 2169
(2010), urging that "McMillan and Harris should be overruled, at
least to the extent that they authorize judicial factfinding on a
preponderance of the evidence standard of facts that 'expos[e] a
defendant to [a] greater punishment than what is otherwise legally
prescribed . . . '" Id. at 2183 (Stevens, J., concurring).
However, "[t]he Supreme Court has repeatedly instructed lower
courts that only it has the prerogative to overrule its own
decisions." United States v. Siciliano, 578 F.3d 61, 69 n. 5 (1st
Cir. 2009). Until the Supreme Court overrules them, McMillan v.
Pennsylvania, 477 U.S. 79 (1986) and Harris v. United States, 536
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U.S. 545 (2002) remain good law. See United States v. Vilches-
Navarrete, 523 F.3d 1, 20 n. 14 (1st Cir. 2008). The district
court correctly concluded that it was required to abide by the
statutory mandatory minimum sentence that corresponded to its drug
quantity finding.
II. Individualized Drug Quantity Finding
"When sentencing a participant in a drug-trafficking
conspiracy, the district court must make an individualized finding
concerning the quantity of drugs attributable to, or reasonably
foreseeable by, the offender." United States v. Cintron-Echautegui,
604 F.3d 1, 5 (1st Cir. 2010). Similarly, "to apply the mandatory
minimum to a particular coconspirator, the sentencing court must
make a specific finding, supportable by a preponderance of the
evidence, ascribing the triggering amount to that coconspirator."
United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir. 2004).
Here the triggering amount that established the 120-month mandatory
minimum sentence was 5 kilograms of cocaine. Appellant argues that
the sentencing court failed to make such an individualized drug
quantity determination. "Because the question of whether the
district court's drug quantity determination was based on an
individualized determination or not presents a question of law, our
review is de novo." Cintron-Echautegui, 604 F.3d at 5.1
1
The government maintains that plain error review should
apply because appellant failed to raise this argument before the
district court. It is unnecessary to decide that question,
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The transcript of the sentencing disposition clearly
demonstrates that the district court made the requisite
individualized finding with respect to the drug quantity for which
Colon was responsible. It specifically found that there was an
intention and an agreement between Colon and his co-defendant
Alexander Sanchez to supply five kilograms of cocaine, that Colon
"was capable of acquiring additional kilograms of cocaine," beyond
the three kilograms that were recovered, and that both Colon and
Sanchez were members of the conspiracy. That constitutes an
individualized finding that five kilograms of cocaine was a drug
quantity that was attributable to, or foreseeable by, Colon as a
member of the conspiracy.
III. Evidentiary Support for Drug Quantity Finding
"The sentencing court must determine drug quantity only
by a preponderance of the evidence. A sentencing court's
determination of drug quantity is a finding of fact and, as such,
will be upheld on appeal unless it is clearly erroneous. Clear
error will be found only when, upon whole-record-review, an
inquiring court 'form[s] a strong, unyielding belief that a mistake
has been made.'" Cintron-Echautegui, 604 F.3d at 6. Having
carefully reviewed the entire record, we are not persuaded that
however, because appellant's claim cannot survive even de novo
review.
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such a mistake was made with respect to the court's drug quantity
determination.
Appellant relies upon note 12 of U.S.S.G. §2D1.1, which
provides that the "agreed-upon quantity" shall be reduced to
exclude "the amount of controlled substance that the defendant
establishes that the defendant . . . was not reasonably capable of
providing or purchasing." Id. However, it is the defendant's
burden to "prove[] that the transaction could not have been
accomplished." United States v. Campusano, 556 F.3d 36, 40 (1st
Cir. 2009). Appellant relies largely upon the fact that co-
defendant Matthew Leonard was sentenced for his participation in
the same conspiracy on the basis of a drug quantity of only four
kilograms.
The discrepancy between the drug quantities for which
Colon and Leonard were held responsible does not establish that the
court's drug quantity finding with respect to Colon was clearly
erroneous. The record does not indicate that Leonard participated
in the recorded negotiations between Sanchez and Colon and the
cooperating witness and undercover officer for the delivery of five
kilograms. Therefore, the Probation Office may have concluded that
there was not sufficient evidence to find that Leonard could have
foreseen that five kilograms would be distributed as part of the
conspiracy. Although the record indicates that the three kilograms
that were delivered were supplied by Leonard, the record does not
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establish who would supply the additional two kilograms that were
promised by Colon and Sanchez. The sentencing court referenced
Leonard as one potential source of supply, but the government's
evidence that co-conspirators Sanchez and Eric Gonzalez
participated in other multi-kilogram cocaine transactions in the
fall of 2007 did not specify who the supplier was. On this record,
the court was not required to find that Leonard was the only
possible supplier of the additional two kilograms. Therefore, the
fact that Leonard was held responsible for only four kilograms of
cocaine as a participant in the conspiracy does not amount to proof
that Colon and Sanchez did not have the capacity to obtain the
additional two kilograms that they had negotiated to supply to the
undercover officer. The district court's drug quantity
determination was not clearly erroneous.
Affirmed. See 1st Cir. R. 27.0(c).
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