14‐4120
United States v. Guerrero
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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August Term, 2015
(Argued: November 17, 2015 Decided: February 11, 2016)
Docket No. 14‐4120
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UNITED STATES OF AMERICA,
Appellee,
–v.–
ANTONIO GUERRERO, aka Tony,
Defendant‐Appellant.
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Before:
KEARSE, STRAUB, and WESLEY, Circuit Judges.
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Appeal from the United States District Court for the Southern District of New
York (Sweet, J.). Defendant‐Appellant Antonio Guerrero was convicted after a
jury trial of two counts of intentional murder while engaged in a drug trafficking
The Clerk of Court is respectfully requested to amend the caption as set forth above.
offense, in violation of 21 U.S.C. § 848(e)(1)(A). On appeal, Guerrero seeks
vacatur of his conviction on the grounds that: (1) the Fair Sentencing Act of
2010’s enactment before his sentencing retroactively modified the drug quantity
aspect of the murder offense’s drug trafficking element, 21 U.S.C. § 841(b)(1)(A);
(2) the Government failed to separately charge him with, and convict him of, the
predicate drug trafficking offense; (3) the statute of limitations for the predicate
drug trafficking offense governed and barred his murder prosecution; and (4) the
Government’s search of his home violated his Fourth Amendment constitutional
rights. We reject these challenges and AFFIRM the judgment of conviction, but
the matter is REMANDED for the sole purpose of making a clerical correction to
the judgment’s description of Count 1 by replacing “844(e)(1)(A)” with
“848(e)(1)(A)”.
JEFFREY M. BRANDT, Robinson & Brandt, P.S.C.,
Covington, KY, for Defendant‐Appellant.
LAURIE A. KORENBAUM, Assistant United States
Attorney (Michael D. Maimin, Justin Anderson,
Assistant United States Attorneys, on the brief), for Preet
Bharara, United States Attorney for the Southern
District of New York, New York, NY, for Appellee.
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WESLEY, Circuit Judge:
Defendant‐Appellant Antonio Guerrero was convicted, after a jury trial in
the United States District Court for the Southern District of New York (Sweet, J.),
of two counts of intentional murder while engaged in a drug trafficking offense,
in violation of § 848(e)(1)(A). Guerrero challenges his conviction on several
grounds related to that statute’s drug trafficking element. He also raises Fourth
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Amendment issues. We reject his challenges and AFFIRM the judgment of
conviction.
A murder conviction under 21 U.S.C. § 848(e)(1)(A) requires proof that the
defendant was “engaging” in a drug trafficking offense punishable under 21
U.S.C. § 841(b)(1)(A) at the time he committed the intentional murder. On
appeal, Guerrero presents three challenges related to § 848(e)(1)(A)’s drug
trafficking element: (1) that the Fair Sentencing Act of 2010 (“FSA” or “Act”)
retroactively invalidates a pre‐Act verdict under § 848(e)(1)(A) predicated upon a
pre‐Act drug trafficking quantity under § 841(b)(1)(A), where the defendant is
sentenced post‐Act; (2) that he could not properly be indicted for violating
§ 848(e)(1)(A) unless he had previously been convicted of the predicate drug
trafficking offense; and (3) that the predicate drug trafficking offense’s statute of
limitations governs a § 848(e)(1)(A) murder prosecution.
As noted, Guerrero also claims Fourth Amendment violations arising from
his arrest. Specifically, Guerrero challenges the admission of certain evidence
recovered from his home during his arrest on the grounds that it was discovered
as a result of (1) an unlawful protective sweep and (2) an involuntary consent.
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BACKGROUND
In the 1990s, Antonio Guerrero was a member of “Solid Gold,” a drug
organization that sold crack cocaine out of gold‐capped vials near 173rd Street in
the Bronx, New York. Solid Gold engaged in many turf battles with rival drug
dealers over the years. In connection with one such dispute, Guerrero shot and
killed rival crack cocaine dealer Livino Ortega, who apparently had been
impinging on Solid Gold’s territory and damaging its brand by selling inferior‐
quality crack cocaine using Solid Gold’s packaging. Guerrero also killed
Ortega’s friend, Fernando Garrido, in the same September 3, 1994 shooting
incident.
On April 7, 2009, a federal grand jury in the Southern District of New York
returned an indictment charging, inter alia, Guerrero with the intentional
murders of Ortega (Count One) and Garrido (Count Two) while engaged in an
offense punishable under § 841(b)(1)(A), “to wit, a conspiracy to distribute fifty
grams and more” of crack cocaine, in violation of § 848(e)(1)(A). App’x 27–28.
Guerrero was arrested at his Miami, Florida home the following week and
tried to a jury in the Southern District of New York beginning April 2010. After a
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six‐week trial, Guerrero was found guilty of both counts on June 7, 2010.1
Guerrero thereafter filed a series of unsuccessful post‐trial motions, and the
District Court sentenced him principally to two concurrent terms of 25 years’
imprisonment. A judgment of conviction was entered October 16, 2014.2
DISCUSSION3
I. Fair Sentencing Act Challenge
Guerrero was convicted of intentional murder while engaged in a drug
trafficking conspiracy, in violation of § 848(e)(1)(A), which provides in pertinent
part:
[A]ny person engaging in an offense punishable under section
841(b)(1)(A) of this title . . . who intentionally kills . . . or causes the
intentional killing of an individual and such killing results, shall be
sentenced to any term of imprisonment, which shall not be less than
20 years, and which may be up to life imprisonment, or may be
sentenced to death . . . .
1 The record reflects a discrepancy regarding the date of the jury verdict. Compare
App’x 15, 24, and 525 (indicating June 4, 2010), with App’x 18, 22, 421, and 423
(indicating June 7, 2010). We rely on the trial transcript, which indicates the correct date
to be June 7, 2010. See App’x 402, 415–19.
2 The judgment contains a typographical error. It misidentifies Count 1 as pursuant to
§ 844(e)(1)(A), see App’x 553, but both counts are in fact pursuant to § 848(e)(1)(A), see
App’x 27–28, 415.
3 Guerrero’s challenges to his conviction implicate questions of statutory interpretation,
which are questions of law that we review de novo. See United States v. Santos, 541 F.3d
63, 67 (2d Cir. 2008).
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21 U.S.C. § 848(e)(1)(A). At the times of Guerrero’s murder offense conduct,
indictment, and conviction, the threshold quantity of crack cocaine for an offense
punishable under § 841(b)(1)(A) was 50 grams or more. Then, on August 3, 2010,
Congress enacted the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat.
2372, a law designed to help reduce sentencing disparities between powder
cocaine and crack cocaine offenses. See Dorsey v. United States, 132 S. Ct. 2321,
2329 (2012); United States v. Johnson, 732 F.3d 109, 112 (2d Cir. 2013). Among
other changes, the FSA increased the threshold quantity of crack cocaine
necessary to trigger the enhanced sentencing provision under § 841(b)(1)(A) from
50 grams to 280 grams. See Pub. L. No. 111–220, § 2(a), 124 Stat. 2372. The Act
makes no mention of § 848(e)(1)(A). See id.
A few years after the FSA’s enactment, the Supreme Court in Dorsey
addressed whether the Act’s more lenient sentencing regime applied
retroactively to defendants who committed crack cocaine offenses before August
3, 2010, but who were not sentenced until after that date. Dorsey, 132 S. Ct. at
2326. The Court held that it did, reasoning in part that Congress through the
FSA intended to apply to mandatory minimum sentences the established
principle that “sentencing judges [are] to use the Guidelines Manual in effect on
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the date that the defendant is sentenced, regardless of when the defendant
committed the offense, unless doing so would violate the ex post facto clause.” Id.
at 2332 (internal quotation marks omitted); accord United States v. Highsmith, 688
F.3d 74, 77 (2d Cir. 2012) (per curiam).
Guerrero argues that the FSA compels vacatur of his conviction. He
reasons that, while his September 1994 murder offense conduct and June 2010
conviction preceded the FSA, his October 2014 sentencing occurred after the Act
went into effect, and, under Dorsey’s retroactivity rule, § 848(e)(1)(A)’s drug
trafficking element required the jury to find that the conspiracy involved at least
280 grams of crack cocaine. Because only a quantity of 50 grams was alleged and
proved, the argument goes, the Government failed to establish an element of the
charged murder offense and Guerrero’s conviction must be vacated.
This argument misreads § 848(e)(1)(A), misunderstands the FSA, and
misapplies Dorsey. A defendant may be convicted under § 848(e)(1)(A) if he was
engaged in a drug trafficking offense punishable under § 841(b)(1)(A) at the time
he committed intentional murder.4 The crime is complete at the time of the
4 Of course, a defendant need not be “actively engaged in the distribution of drugs in
order to be convicted under the drug‐related murder prong of section 848(e)(1)(A). The
defendant need only be engaging in an offense punishable under section 841(b)(1)(A),
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murder, see 21 U.S.C. § 848(e)(1)(A), and it is as of that time that the statute’s
drug trafficking element is measured. Here, Guerrero committed the murders in
September 1994, at which time the threshold quantity of crack cocaine necessary
under § 841(b)(1)(A) was 50 grams or more. The jury’s finding that Guerrero had
been engaged in a conspiracy to distribute 50 grams or more of crack cocaine at
the time he intentionally killed Ortega and Garrido therefore satisfied the drug
trafficking element of the § 848(e)(1)(A) murder offense. There was no error in
the indictment, the instructions, or the verdict.
No other conclusion flows from the FSA, a sentencing statute principally
designed to increase threshold quantities of drugs necessary to trigger certain
enhanced penalty schemes, to remove certain mandatory minimum sentences,
and to direct the promulgation of new Sentencing Guidelines. See Pub. L. No.
111–220, 124 Stat. 2372. The general federal savings statute provides in pertinent
part:
The repeal of any statute shall not have the effect to release or
extinguish any penalty, forfeiture, or liability incurred under such
statute, unless the repealing Act shall so expressly provide, and such
statute shall be treated as still remaining in force for the purpose of
which includes conspiracy to commit such an offense.” Santos, 541 F.3d at 68 (citation
omitted) (internal quotation marks omitted).
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sustaining any proper action or prosecution for the enforcement of
such penalty, forfeiture, or liability.
1 U.S.C. § 109. Because the FSA did not expressly extinguish any criminal
liability under § 848(e)(1)(A), the law’s enactment did not retroactively invalidate
Guerrero’s conviction.
Dorsey is equally unaccommodating to Guerrero’s challenge. That
decision’s retroactivity rule simply permits defendants who committed offenses
before August 3, 2010, but who were not sentenced until after that date, to be
sentenced under the FSA’s more lenient sentencing regime. See Dorsey, 132 S. Ct.
at 2335 (“Congress intended the Fair Sentencing Act’s new, lower mandatory
minimums to apply to the post‐Act sentencing of pre‐Act offenders.”). Dorsey
nowhere purports to limit criminal liability for an offense such as murder in
violation of § 848(e)(1)(A). Guerrero’s FSA‐based challenge to his conviction
fails.
II. Predicate Drug Trafficking Offense & Statute of Limitations Challenges
Guerrero next argues that the Government could not even ʺcharge[]” him
with murder in violation of § 848(e)(1)(A) unless he had, “before” being so
charged, “be[en] convicted of the underlying drug offense.” See Appellant’s Br.
52. Section 848(e)(1)(A) makes no such demand. The statute requires the
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Government to prove that the defendant was engaged in a predicate drug
offense at the time of the intentional murder. Guerrero does not dispute that the
evidence at trial was sufficient to establish that at the time of the murders he was
engaged in trafficking in crack cocaine as a member of Solid Gold; and he
acknowledges that “the district court instructed the jury that, to find Guerrero
guilty of the § 848(e) charges, it had to find that Guerrero killed while engaged in
a drug conspiracy involving 50 grams or more of crack cocaine (and, therefore,
punishable under § 841(b)(1)(A)).” See Appellant’s Br. 15; see also Trial Tr. 3383
(instructing that to convict under § 848(e)(1)(A) the jury must find, inter alia, that
the defendant “intentionally killed” and that the drug dealing and the killing
“were in some way related or connected”). There is no suggestion that the jury
was not properly instructed on all of the elements of the § 848(e)(1)(A) offense.
The statute does not require that the defendant have been previously convicted
of, or be separately charged with, the predicate drug offense in order to be
charged or convicted under § 848(e)(1)(A).
Guerrero relatedly argues that his § 848(e)(1)(A) murder prosecution is
governed by the predicate drug offense’s five‐year statute of limitations, as set
forth in 18 U.S.C. § 3282. It is not. Section 848(e)(1) establishes a capital offense
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punishable by “any term of imprisonment, which shall not be less than 20 years,
and which may be up to life imprisonment, or . . . death.” 21 U.S.C.
§ 848(e)(1)(A). Guerrero’s § 848(e)(1)(A) prosecution is therefore governed by 18
U.S.C. § 3281, which provides that “[a]n indictment for any offense punishable
by death may be found at any time without limitation.”5 18 U.S.C. § 3281. That
the Government elected not to pursue capital punishment here is immaterial to
whether Guerrero’s § 848(e)(1)(A) offenses are in fact capital offenses for
purposes of § 3281. Cf. United States v. Payne, 591 F.3d 46, 59 (2d Cir. 2010).
III. Fourth Amendment Challenges
As part of Guerrero’s April 15, 2009 arrest at his Florida home pursuant to
a warrant, agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives
conducted a protective sweep of Guerrero’s home and, in the process, saw a
photograph of Guerrero with suspected members of a drug trafficking
organization. They then obtained Guerrero’s oral and written consent for a
limited search for, and seizure of, photographs depicting members of that
Indeed, courts of this Circuit have held the same. See, e.g., Soler v. United States, No. 05
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CR. 165 LAP, 2015 WL 4879170, at *22 (S.D.N.Y. Aug. 14, 2015); United States v. Dames,
No. 04 CR. 1247 PAC, 2007 WL 1032257, at *1 (S.D.N.Y. Mar. 30, 2007); United States v.
Martinez‐Martinez, No. 01 CR 307, 2001 WL 1287040, at *2 (S.D.N.Y. Oct. 24, 2001).
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organization. Guerrero challenges the admission of those photographs as fruits
of an unlawful protective sweep and an involuntary consent.
Under the Fourth Amendment’s protective sweep exception, agents
executing an arrest inside a home may, “as a precautionary matter and without
probable cause or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an attack could be
immediately launched.” Maryland v. Buie, 494 U.S. 325, 334 (1990); United States
v. Jackson, 778 F.2d 933, 937 (2d Cir. 1985) (stating principle that officers may
perform a protective sweep “to check for third persons who may destroy
evidence or pose a threat to the officers” (internal quotation marks omitted)).
Where agents execute an arrest just outside the home, they are authorized to
sweep the house if there are articulable facts that would warrant the reasonable
belief that someone within the home is “aware of the arrest outside the premises”
and “might destroy evidence, escape or jeopardize the safety of the officers or the
public.” United States v. Oguns, 921 F.2d 442, 446 (2d Cir. 1990) (internal
quotation marks omitted). Here, whether Guerrero’s arrest occurred inside his
home or just outside of it, we find no error in the District Court’s conclusion that
the protective sweep was justified under the circumstances.
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Under the Fourth Amendment’s consent exception, “warrantless entry and
search are permissible if the authorities have obtained the voluntary consent of a
person authorized to grant such consent.” United States v. Elliott, 50 F.3d 180, 185
(2d Cir. 1995). To be valid, consent must be voluntary and therefore cannot “be
coerced, by explicit or implicit means, by implied threat or covert force.” United
States v. Snype, 441 F.3d 119, 131 (2d Cir. 2006) (internal quotation marks omitted)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). We do “not reverse
a finding of voluntary consent except for clear error.” United States v. Moreno,
701 F.3d 64, 76 (2d Cir. 2012) (internal quotation marks omitted). Here, based on
the record, including the District Court’s credibility determinations, we find no
such error.
CONCLUSION
We have considered all of Guerrero’s arguments on appeal and find them
to be without merit. For the foregoing reasons, the judgment of the District
Court is AFFIRMED, but the matter is REMANDED for the sole purpose of
making a clerical correction to the judgment’s description of Count 1 by
replacing “844(e)(1)(A)” with “848(e)(1)(A)”.
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