United States v. Perez-Ruiz

United States Court of Appeals
For the First Circuit

No. 04-1853

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO PÉREZ-RUIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Boudin, Chief Judge,
Siler,* Senior Circuit Judge,
and Saris,** District Judge.

Bruce J. McGiverin, by appointment of the court, for
appellant.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, Senior Appellate Attorney, were
on brief for appellee.

August 26, 2005

*
Of the Sixth Circuit, sitting by designation.
**
Of the District of Massachusetts, sitting by designation.
 BOUDIN, Chief Judge. Julio Perez-Ruiz ("Perez") was

indicted in June 2000 for conspiring to distribute heroin, cocaine

and cocaine base and in July 2001 was convicted after a jury trial.

Because of evidence at trial that Perez had participated in the

murder of a dealer who had broken with the ring, the district court

found that the maximum sentence under the Sentencing Guidelines was

life imprisonment and imposed this sentence upon Perez, who

appealed both from his conviction and the sentence. On appeal,

this court affirmed the conviction but remanded for re-sentencing.

United States v. Perez-Ruiz, 353 F.3d 1 (1st Cir. 2003), cert.

denied, 541 U.S. 1005 (2004) ("Perez-Ruiz I").

The reason for the remand was that the guideline sentence

imposed on Perez exceeded the statutory maximum that could be

imposed under Apprendi v. New Jersey, 530 U.S. 466 (2000). Absent

a finding either of prescribed amounts of drugs or of death or

serious bodily injury, a conspiracy to distribute heroin, cocaine

and cocaine base (or any one of them alone) has a maximum sentence

of twenty years' imprisonment. 21 U.S.C. §§ 841(b)(1)(C), 846

(2000). Under Apprendi, that finding must be made by the jury

because it enlarges the statutory maximum. See United States v.

Eirby, 262 F.3d 31, 36-37 (1st Cir. 2001).

Under subsection (A) of section 841(b)(1), the amounts of

the three drugs charged in the Perez indictment (or any one of

them) would have permitted a life sentence, but the jury

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instructions did not require the jury to find specific amounts in

order to convict, nor were there special verdict findings. And

although subsection (C) also permits a maximum sentence of life

imprisonment where death results from the drug crime, again the

jury made no determination that such a death had occurred. The

Apprendi objection had been preserved and, given that the trial

evidence as to drug quantity was not overwhelming, we refused to

find the Apprendi error harmless. Perez-Ruiz I, 353 F.3d at 18.

The case was therefore remanded to the district court for

re-sentencing up to a maximum of twenty years. On May 20, 2004,

the district court re-sentenced Perez, imposing a sentence of 235

months. The district judge computed the guideline range as 188-235

months based upon the quantity of drugs he found attributable to

Perez and further enhancements for use of a firearm and Perez'

supervisory status. Under United States v. Booker, 125 S. Ct. 738

(2005), these findings may be made by the judge alone. Perez

appeals again to challenge this new sentence on several different

grounds.

Perez' first argument is that the true statutory maximum

is not twenty years but only five--the maximum that applies if the

drug involved in the conspiracy is marijuana of no specified

amount. 21 U.S.C. § 841(b)(1)(D). The first difficulty with this

argument is that we determined on the prior appeal, in the face of

the same argument, that twenty years was the correct maximum.

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Perez-Ruiz I, 353 F.3d at 15 n.2. Although the governing law of

the case doctrine arguably permits us to reexamine our own prior

determination at a later stage of the same case (if we deem that

appropriate), United States v. Moran, 393 F.3d 1, 7-8 (1st Cir.

2004), it will soon be apparent that there is no basis for doing so

here.

The crime charged in the indictment was a conspiracy to

distribute heroin, cocaine and cocaine base, and the jury was

instructed that it was this conspiracy that had to be found in

order to convict. The indictment also referred to three episodes

involving marijuana; but they were not charged as objects of the

conspiracy. The jury instructions mentioned marijuana, along with

heroin, cocaine and crack cocaine, as controlled substances, but

the jury instructions thereafter expressly identified the

conspiracy at issue as an agreement to distribute heroin, cocaine

and cocaine base and did not include marijuana.

At trial, there was some evidence as to marijuana

presented, including description of a delivery of the drug to

Perez' drug point, but also evidence of the hard drugs charged in

the indictment. In order to convict, the jury had to find that the

conspiracy was directed to the hard drugs, not marijuana; strictly

speaking, it had to conclude that all three hard drugs were objects

of the conspiracy because the indictment charged in the

conjunctive. See United States v. Soto-Beniquez, 356 F.3d 1, 48-50

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(1st Cir. 2003), cert. denied, 541 U.S. 1074 (2004). In all

events, there is no realistic chance that, in convicting under this

indictment and these instructions, the jury constructively amended

the indictment by convicting Perez solely for a marijuana

conspiracy--itself never charged.

Perez' next argument is that the district judge violated

the Sixth Amendment by himself making the determinations as to drug

quantity and other enhancements, and that the remedial holding of

Booker violates the ex post facto and due process clauses of the

Constitution. U.S. Const. art. I, § 9, cl. 3; Id. amend. V.

Although arguably this claim was not properly preserved in the

remanded proceeding, our case law has already rejected such claims

on the merits so we bypass the preservation question.

Under the 5-4 constitutional ruling in Booker, judge-made

enhancements under the guidelines that result in a sentence greater

than the sentence that could be imposed based solely on the facts

found by the jury do amount to Sixth Amendment violations if the

guidelines are treated as mandatory; but under the companion 5-4

remedial ruling in Booker, this problem is washed out by treating

the guidelines as advisory. A defendant sentenced under the

mandatory regime may be entitled to re-sentencing under the

advisory one--we return to this issue--but Booker both created and

cured the constitutional error at the same time. See United States

v. Antonakopoulos, 399 F.3d 68, 75-76 (1st Cir. 2005).

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 Perez' fallback is that it was (in some metaphysical

sense) always a violation of the Sixth Amendment to permit such

judge-made findings at sentencing and that it violates ex post

facto and due process principles to apply Booker's remedial cure of

advisory guidelines for a crime that occurred prior to that

decision. As we explained in United States v. Lata, 415 F.3d 107,

2005 WL 1491483, at *2 (1st Cir. June 24, 2005), the ex post facto

clause does not apply because the changes wrought by Booker were by

judicial decision and not by statute. The due process argument

remains available to Perez, protecting against adverse changes in

the law after the crime was committed where the change denies the

defendant fair warning, but "only where the alteration is

'unexpected and indefensible' by reference to the case law that had

been expressed prior to the offense." Id. at *3 (citing Rogers v.

Tennessee, 532 U.S. 451, 461 (2001)).

There is no fair warning problem in this case. At the

time of Perez' crime--indeed, until the morning that Booker was

announced by the Supreme Court--Perez faced a foreseeable risk that

any crime he committed would result in a guideline sentence (within

the statutory maximum) based on judge-made fact-finding. That is

exactly what he got in this case. For Perez, the change wrought by

Booker might now permit a still lower sentence, but it did not

produce one higher than any pre-Booker reasonable expectation.

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 As to the possibility of a lower sentence, Perez has been

free for months to point to any circumstance that might suggest

that--if the district judge were offered the opportunity--the judge

might under advisory guidelines impose a sentence below 235 months.

No such suggestion has been made and for good reason. The judge

sentenced Perez at the very top of the available guideline range,

compare United States v. Vázquez-Rivera, 407 F.3d 476, 490 (1st

Cir. 2005), petition for cert. filed (U.S. Aug. 5, 2005) (No. 05-

5686), and Perez points to no mitigating factors that mandatory

guidelines forbad or discouraged the district judge to consider.

If anything, an advisory-guideline sentence for Perez

could easily be longer--although only by five months. The district

judge earlier made clear his view that Perez was not only a

conspirator but also an enforcer who had committed a murder in aid

of the conspiracy. Absent a jury determination, this fact cannot

raise the statutory maximum, but it could easily have been

considered in deciding where to sentence under an advisory system

(and, seemingly, in fixing the guideline range itself although the

district judge did not base his sentencing range on this fact).

Next, Perez argues that the district judge erred in his

factual findings by attributing to him 15 kilograms of cocaine--

findings that we review for clear error. United States v. Santos,

357 F.3d 136, 140 (1st Cir. 2004). In a drug conspiracy, a

defendant is responsible "not only for the drugs he actually

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handled but also for the full amount of drugs that he could

reasonably have anticipated would be within the ambit of the

conspiracy." Id.

The district court's findings as to the 15 kilograms are

adequately supported. At trial, a member of the conspiracy

testified that he had supplied the conspiracy with 2-4 kilograms of

cocaine on "several" occasions, amounting to "more than 15"

kilograms of cocaine; a federal agent stated summarily that the

conspiracy distributed "over 150 kilograms of cocaine"; and--

perhaps at least as important--there was evidence that the drug

conspiracy was a broad one covering a substantial number of drug

"points" (locations of sale) over a substantial period.

As for Perez' own role, he was not a minor figure, such

as a courier or lookout on the fringe of the operation. The

evidence at trial indicated that he had participated in the

conspiracy for five years and controlled his own drug point,

purchasing supplies at a higher level and employing others to

assist him. Tellingly, the district judge found enough evidence to

justify ranking Perez as a supervisor under the guidelines, and

summed up his sentencing determination as follows:

I think there is plenty on this record to
state this was an encompassing organization
that ran a ton of points, many, many points.
And those who were in the managerial levels of
the organization had reason, []or should have
known, you know, and in that sense, it ought
to be 15 kilos is a very, very conservative
estimate.

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 The specific evidence is not without weaknesses. The man

who delivered the "several" multi-kilogram shipments gave them not

to Perez but to a senior figure in the conspiracy, and these

deliveries occurred just about the time that Perez apparently

joined. The agent who estimated that the conspiracy handled over

ten times as much cocaine gave no foundation for his estimate. It

was concerns of this kind that led us in the earlier decision to

conclude that the evidence as to amount was not so powerful as to

overcome the preserved Apprendi error. Perez-Ruiz I, 353 F.3d at

18-19.

But it is one thing to disregard an error on the ground

that it has not been shown harmless beyond a reasonable doubt; it

is quite another to conclude that the district court committed

clear error in making findings about foreseeable amounts in a

conspiracy described at length as having multiple sales points, a

hierarchy of suppliers and an existence over a substantial period

of time. Whether "conservative" or not, the district court's

finding of 15 kilograms was adequately supported against any charge

that the finding was clear error.

Finally, Perez argues that the sentencing was

procedurally faulty. The pre-sentence report, issued before his

initial sentencing and unaltered for the re-sentencing, focused

exclusively upon a homicide with which Perez was associated but

which did not factor into the district court's eventual sentencing

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determination now on appeal. The government's objections to the

pre-sentence report, filed for the re-sentencing, also offered an

alternative sentence calculation to the homicide cross-reference,

containing the drug quantity calculation and firearm and

supervisory enhancements on the basis of which the district court

eventually sentenced.

Because the alternative sentencing basis had been

presented in the pre-sentence process, the district judge's

decision to base Perez' sentence on this alternative calculation

was not improper under Fed. R. Crim. P. 32, which effectively

mandates--although it does not state the matter in these general

terms--a measure of notice to the defendant of the bases on which

the court may impose a sentence. However, the government filed its

objections containing the new calculations on the day of the re-

sentencing hearing, thus arguably depriving Perez of adequate

notice of this new calculation.1

Nevertheless, at the sentencing hearing defense counsel

ably (although unsuccessfully) argued on the merits against the

court's contemplated findings as to drug quantity and use of a

firearm, an argument complete with case citations. More important,

counsel did not object that he had been given inadequate notice or

1
Because the original pre-sentence report was resubmitted
without revisions, it is debatable which, if any, of the prescribed
time limits found in Fed. R. Crim. P. 32 applied to the parties.
See Fed. R. Crim. P. 32(f)(1), (g). At the very least, the spirit
of the rules required some notice and opportunity to object.

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ask for a continuance on the ground that he needed more time to

prepare to contest the calculations based on newly minted bases.

Although the sentencing procedures laid out by Rule 32

are designed to narrow the issues and provide due notice, see Fed.

R. Crim. P. 32, it is well settled that counsel is expected to

object if he conceives that these procedures have been violated and

that, in the absence of a timely objection, only plain error review

is available. Soto-Beniquez, 356 F.3d at 53; United States v.

López-López, 295 F.3d 165, 169 (1st Cir. 2002). Nothing said on

this appeal explains why the sentencing might have come out

differently if more time had been afforded.

Perez' brief also complains that the district judge

failed to require the probation officer to revise the pre-sentence

report in light of the alternative sentencing calculations, and

that the court then failed to make formal rulings on any disputed

portion of the report or other controverted matters as required by

Fed. R. Crim. P. 32(i)(3)(B). The rule provides that the probation

officer "may" revise the pre-sentence report, Fed. R. Crim. P.

32(f)(3), and as to the findings it is plain from the sentencing

transcript that the district court specifically spelled out its

determinations and the bases on which it made them.2

2
The government misinterprets or mischaracterizes this
argument as addressed to the supposed failure of the district court
to append a copy of its determinations to the version of the pre-
sentence report that is submitted to the Bureau of Prisons. See
Fed. R. Crim. P. 32(i)(3)(C). This is not the relief Perez seeks;

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 There is a separately filed pro se brief by Perez himself

which we have considered together with the briefs filed by counsel.

In this brief, Perez' first claim is the same Booker claim made by

his counsel and rejected above; his second claim is that Booker

error is a form of structural error, an argument flatly contravened

by our precedent, most recently in Vázquez-Rivera, 407 F.3d at 489,

and on which nothing more need be said.

Affirmed.

if the government views this failure to append as error it should
raise that objection with the district court.

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