[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-11273
U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ June 29, 2005
THOMAS K. KAHN
D. C. Docket No. 03-00008-CR-T-23-TGW CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE MELQUIADES, a.k.a. Jorge Melquiades,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 29, 2005)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
George Melquiades appeals his sentences for conspiracy to possess with
intent to distribute 500 grams or more of methamphetamine, in violation of 21
U.S.C. § 846 (Count One), and three counts of distributing 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii)
(Counts Three through Five). Because the amounts of methamphetamine not
challenged by Melquiades were sufficient to support his base offense level, we find
his argument regarding the district court’s calculation of the methamphetamine
weight attributed to him moot. Because Melquiades failed to show that a
connection between the sold pistols and the offense was clearly improbable, the
district court did not clearly err in applying the enhancement for possession of a
weapon. Because Melquiades denied, rather than clarified, his post-arrest
statements to police, the district court did not clearly err in applying the
enhancement for obstruction of justice. Because Melquiades cannot show that the
Booker error affected his substantial rights, the district court did not err in
enhancing his sentence under the Sentencing Guidelines. Melquiades’s sentence
is, therefore, AFFIRMED.
I. BACKGROUND
Melquiades and two co-defendants, including Zeferino Carlos, were indicted
for conspiracy to possess with intent to distribute 500 grams or more of
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methamphetamine and three counts of distributing 50 grams or more of
methamphetamine. He pled not guilty and, following a jury trial, was convicted of
all counts.
The facts, as set forth in the presentence investigation report (PSI), revealed
that a confidential informant (CI) provided information to authorities that Carlos
was selling methamphetamine at his business, Su-Tienda Guadalupana Restaurant.
The CI subsequently received .86 gram of methamphetamine from Carlos and
returned to purchase 114.8 and 235.1 grams of methamphetamine from him.
During one of the purchase transactions, the CI introduced Carlos to an undercover
police officer (UC) who asked Carlos about purchasing handguns.
On 8 October 2002, the UC met Carlos and Melquiades at Carlos’s
restaurant to negotiate the sale of two handguns and methamphetamine.
Melquiades and the UC went to an adjacent business, where Melquiades sold the
UC two pistols. After Melquiades told the UC that he was Carlos’s
methamphetamine supplier, the UC advised Melquiades that he would contact him
regarding the possible purchase of one-quarter to one-half pound of
methamphetamine. The UC later met with Melquiades and purchased 109.8 grams
of methamphetamine. At another meeting, the UC purchased 227 grams from
Melquiades, who indicated that he would obtain two fully-automatic machineguns
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for the UC. Melquiades also stated that the methamphetamine was being stored in
detergent boxes in Carlos’s restaurant. The UC conducted another purchase from
Melquiades of 441.8 grams of methamphetamine. The UC later went to Carlos’s
restaurant and observed Carlos, who had a handgun wrapped in a cloth next to him,
talking to an individual.
Carlos was arrested, and several firearms were found in his residence. A
search of Melquiades’s residence yielded 428.4 grams of methamphetamine as
well as drug paraphernalia. In a search of Carlos’s restaurant and the adjacent
grocery store, police seized 248.9 grams of methamphetamine hidden in a box.
Melquiades admitted that he had transported methamphetamine on three occasions
for an individual who was one of Carlos’s suppliers. He further stated that he
transported unknown amounts of methamphetamine on the first and third trips, and
five pounds of methamphetamine on the second trip.
The probation officer calculated that Melquiades was accountable for four of
the five pounds (1.8 kilograms) involved in the second trip, plus an additional 1.8
kilograms, which was the amount of drugs distributed to the UC plus the amount of
drugs seized from Melquiades’s residence and Carlos’s restaurant. Based on the
amount of drugs involved, the PSI calculated Melquiades’s base offense level as
34, and added a 2-level increase for possession of a firearm, pursuant to U.S.S.G. §
4
2D1.1(b)(1). The PSI added 2 levels for obstruction of justice, in accordance with
U.S.S.G. § 3C1.1, because Melquiades denied his post-arrest statement, for a total
offense level of 38. The PSI determined that Melquiades’s criminal history
category was I, which yielded a guidelines range of 235 to 293 months in prison.
Melquiades objected to the amount of methamphetamine attributed to him, denying
that he admitted post-arrest to the weight of the transported methamphetamine.
At the sentencing hearing, Melquiades argued that he should be held
accountable for no more than 1.4 kilograms of methamphetamine, because (1) he
was not involved in Carlos’s other sales; (2) the drugs found at Carlos’s residence
and restaurant should not be attributed to him; and (3) the weight of the drugs
involved in Melquiades’s trips was unknown. The district court overruled this
objection.
In addition, Melquiades objected to the two-level increase in offense level
for possession of a firearm, arguing that there was no testimony that he had been
seen with a gun, other than those that he sold. The district court found that
Melquiades could not bear the burden of establishing clear improbability that the
gun was not connected with the underlying offense and overruled his objection.
Melquiades also objected to the obstruction of justice enhancement and the
denial of acceptance of responsibility. Although he argued that he never told the
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officers the weight of the transported drugs, he later conceded that he “believe[d]
that he did tell the [officers] that he believed it was five pounds” but later filed an
objection to the PSI stating that “he did not know the weight” of the drugs. R10 at
46; R11 at 18, 21. The district court overruled both objections. Melquiades was
then sentenced to a term of imprisonment of 235 months on Counts One and Three
through Five, to be served concurrently.
Melquiades raises four issues on appeal. First, he argues that the district
court erred in applying a sentence enhancement based on the weight of the
methamphetamine found at Carlos’s restaurant because Carlos had numerous
suppliers. Second, he contends that the district court erred in enhancing his
sentence based on the determination that he possessed a weapon during the offense
of conviction or related relevant conduct, because the only incident involving
weapons was when he delivered two pistols to the UC, with whom Melquiades had
no previous dealings. Third, Melquiades asserts that the district court erred in
enhancing his sentence for obstruction of justice because the government did not
prove that (1) he was acting with malice to intentionally obstruct justice, and
(2) his false statement actually hindered investigation. Fourth, he argues for the
first time on appeal that the district court erred by imposing a harsher sentence than
the jury verdict allowed.
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II. DISCUSSION
We review “a district court’s factual findings for clear error and their
application of the Guidelines to those facts de novo.” United States v. Bradford,
277 F.3d 1311, 1312 (11th Cir. 2002) (per curiam).
A. Drug Quantity
Melquiades argues that he should not have been held responsible for the
weight of the drugs seized at Carlos’s restaurant because Carlos had a number of
suppliers and the source of the seized drugs was uncertain. Melquiades also
contends that he should have been held responsible for only the drugs he sold to
the UC and the drugs found at his residence but admits that he transported five
pounds of methamphetamine.
We may “decline to consider issues raised for the first time in a reply brief.”
United States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir. 1996). A defendant
“seeking to raise a claim or issue on appeal must plainly and prominently so
indicate” such that the claims are “unambiguously demarcated.” United States v.
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). “Otherwise the issue—even if
properly preserved at trial—will be considered abandoned.” Id. Under Section
2D1.1(a)(3) of the Sentencing Guidelines, the base offense level for more than 1.5
kilograms but less than 5 kilograms of methamphetamine is 34.
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Other than stating that only the amounts found in his residence and sold by
him to the agent should have been attributed to him, Melquiades failed to raise
arguments in his appellate or reply brief regarding the 1.8 kilograms attributed to
him from the drug shipment. Consequently, he has failed to properly challenge
this amount on appeal. Since the amount transported by Melquiades–1.8
kilograms—is sufficient to support the district court’s application of a base offense
level of 34, Melquiades’s arguments on this issue are moot. See U.S.S.G. §
2D1.1(a)(3).
B. Possession of a Weapon
Melquiades argues that the district court erred by enhancing his sentence
based on the possession of a weapon during the offense because no weapons were
found on him or at his residence. He also contends that there was no connection
between the firearms and the drugs as he neither possessed a weapon during his
discussions regarding methamphetamine nor discussed methamphetamine while he
was in possession of the firearms. Melquiades maintains that he should not be held
accountable for Carlos’s possession of a firearm during a drug transaction because
he knew only that they were in the business of selling guns but did not know that
Carlos possessed one.
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Under the Sentencing Guidelines, a two-level enhancement to a base offense
level for an offense involving drugs is appropriate if the defendant possessed a
dangerous weapon. U.S.S.G. § 2D1.1(b)(1). The government must show “by a
preponderance of the evidence that the weapon was present at the site of the
charged conduct.” United States v. Diaz, 190 F.3d 1247, 1256 (11th Cir. 1999)
(internal quotations and citation omitted). In United States v. Hunter, we explained
that “‘site of the charged conduct’ includes conduct relevant to the offense of
conviction, that is, acts ‘that were part of the same course of conduct or common
scheme or plan as the offense of conviction.’” 172 F.3d 1307, 1309 (11th Cir.
1999) (citation omitted). Once the government has met its burden, the evidentiary
burden shifts to the defendant to show that a “connection between the firearm[] and
the offense is ‘clearly improbable.’” Diaz, 190 F.3d at 1256 (citation omitted).
Melquiades sold the two pistols to the UC in the business adjacent to
Carlos’s restaurant. At another meeting, Melquiades said that the
methamphetamine in the conspiracy was being stored in Carlos’s restaurant, where
the UC later observed Carlos with a handgun next to him. Additionally, a search
of the restaurant and adjacent business yielded 248.9 grams of methamphetamine.
Consequently, the government showed by a preponderance of the evidence that
weapons were possessed at the site of the charged conduct—a conspiracy to
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distribute methamphetamine. Melquiades failed to demonstrate that a connection
between the weapons and the offense is clearly improbable, because he and Carlos
both sold weapons and methamphetamine to the UC, and negotiations for the sale
of both occurred at the same time. Further, Melquiades’s contention that Carlos’s
possession of a weapon was not foreseeable is meritless, since he admits that he
and Carlos were in the business of selling weapons.
C. Obstruction of Justice
Melquiades argues that the district court erred by enhancing his sentence for
obstruction of justice because the government failed to show that he acted with
malice and because his statements were made as a result of confusion regarding the
exact amount of transported methamphetamine. He also contends that his false
statement at sentencing did not hinder the government’s investigation.
Section 3C1.1 of the Sentencing Guidelines provides for a two-level increase
in offense level if the defendant:
willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction, and
(B) the obstructive conduct related to (i) the defendant’s offense of
conviction and any relevant conduct; or (ii) a closely related offense. .
..
U.S.S.G. § 3C1.1.
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Both in his written objections and at the sentencing hearing, Melquiades
denied that he had made post-arrest statements to police officers regarding the
weight of the drug shipment, which was relevant conduct included in the
calculation of his base offense level. With such a denial, he attempted to obstruct
or impede his sentencing by denying the quantity of drugs to which he had
previously admitted and which had been taken into account in his base offense
level. Melquaides’s argument that he could not impede the investigation of the
offense because the investigation was complete is without merit, because Section
3C1.1 includes attempts to obstruct or impede sentencing of the offense of
conviction. See id.
D. Booker
On appeal, for the first time, Melquiades argues that, pursuant to United
States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005), the district court erred by
imposing a harsher sentence based on the enhancements for the drug quantity,
weapon, and obstruction, than the jury verdict allowed.1 He maintains that,
pursuant to, his sentence should be reversed and remanded.
1
Although Melquiades initially argued that the district court erred based on Blakely v.
Washington, 542 U.S. , 124 S. Ct. 2531 (2004) (holding unconstitutional the imposition of a
sentencing enhancement under a state mandatory sentencing scheme based on facts neither
admitted by the defendant nor proved at trial), he supplemented his argument by citing Booker.
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Because Melquiades did not object on this basis in the district court, we
review only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir.), cert. denied, U.S. , S. Ct. (2005). Under the plain error analysis, we
can not correct the error unless there is: “(1) error, (2) that is plain, and (3) that
affects substantial rights.” Id. (quotation and citation omitted). Because
Melquiades’s sentence was enhanced under a mandatory guidelines system based
on findings made by the judge that went beyond facts found by a jury, the first
prong of the plain error test is satisfied. See id. The second prong of the plain
error test is also satisfied because such an error is plain during appellate
consideration. See id. at 1299. To satisfy the third prong of the plain-error test, a
defendant
must establish a reasonable probability that if the district court had
considered the guidelines range it arrived at using extra-verdict
enhancements as merely advisory, instead of mandatory, and had
taken into account any otherwise unconsidered [18 U.S.C.] § 3553
factors, the court would have imposed a lesser sentence than it did.
Id. at 1302. If these three conditions are satisfied, we may then exercise our
discretion as to the forfeited error “only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 1298
(quotations and internal citation omitted).
12
In Booker, the court held that “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” 543 U.S. at , 125 S.
Ct. at 756. We have found that there is no Sixth Amendment violation under
Booker where the defendant admits to the facts that were used to enhance his
sentence. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).
In Rodriguez, we held that the “constitutional error” in Booker was the use
of extra-verdict enhancements under a mandatory system, not the use of
extra-verdict enhancements to increase a defendant’s guideline range. Id. at 1300,
1301. We rejected the defendant’s Blakely/Booker claim because the defendant
had failed to meet his burden of showing that the imposed sentence would have
been different if the district court had applied the guidelines in an advisory, rather
than mandatory, manner. Id. In order to show that an imposed sentence would
have been different with the advisory use of the guidelines, the defendant must
show that there is a reasonable probability of a different result if the guidelines had
been applied in an advisory manner. United States v. Duncan, 400 F.3d 1297,
1304 (11th Cir. 2005).
1. Sentencing Enhancements
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a. Drug Quantity
In the indictment, Melquiades was alleged to have conspired to possess 500
grams of methamphetamine between 1 May 2002 and 13 January 2003 (Count
One), 50 grams of methamphetamine on 10 October 2002 (Count Three), 50 grams
of methamphetamine on 23 October 2002 (Count Four), and 50 grams of
methamphetamine on 22 November 2002 (Count Five). The jury convicted
Melquiades of all counts, and by special verdict, of the quantity of drugs alleged in
the indictment. The base offense level for that quantity of drugs, 650 grams of
methamphetamine, is Level 32. U.S.S.G. § 2D1.1(c)(4). Melquiades, however,
admitted to transporting 1.8 kilograms of methamphetamine, a quantity covered by
Level 34, the level attributed to Melquiades by the probation officer. Where a
defendant is sentenced based on facts to which he admitted, there is no Sixth
Amendment violation under Booker. Shelton, 400 F.3d at 1330. Melquiades is
thus unable to satisfy the first prong of the plain error analysis as to this issue.
b. Weapon
The indictment did not charge Melquiades with conduct involving a
weapon. The probation officer’s initial recommendation for an enhancement was
based on Carlos’s possession of a firearm on 10 December 2002, but was later
expanded to incorporate Melquiades’s 8 October 2002 meeting with the UC at the
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restaurant where firearms and drugs were stored, his discussion with the UC
regarding the sale of firearms and methamphetamine, and his display of several
firearms to the UC, and his subsequent discussions with the UC regarding the sale
of firearms. Melquiades’s attorney argued that, even though Melquiades was
present when the UC picked up the weapon, drug transactions were not discussed
at that time. Melquiades never admitted his possession of nor presence near any
firearms. The district court’s factual finding was based on the evidence presented
at trial. Because Melquiades’s sentence was enhanced for possession of a firearm
as a result of findings made by the judge that went beyond the facts admitted by
Melquiades or found by the jury, the first prong of the plain error test is satisfied.
See Rodriquez, 398 F.3d at 1298. Because Melquiades’s appeal was pending when
Booker was issued, the error is plain and the second prong of the plain error test is
also satisfied. Id. at 1299.
The third prong of the test requires that Melquiades show that the error
affected the outcome of the district court proceedings and, specifically, that there is
a reasonable probability that the district court would have imposed a lesser
sentence if it had considered the guidelines’ range as advisory instead of
mandatory as to the extra-verdict enhancement. Absent the weapons enhancement,
Melquiades’ guideline range would have been based on an adjusted offense level
15
36, or 188 to 235 months instead of 235 to 293 months. The statutory mandatory
minimum for Melquiades’ four counts was twenty-five years, see 21 U.S.C. §§
841(b)(1)(A)(viii) and 841(b)(1)(B)(viii), or 300 months. Because the weapons
enhancement would have made no difference in Melquiades’s resulting sentence,
he cannot show that there is a reasonable probability that a lesser sentence would
have been imposed if the district court had considered the guidelines advisory
rather than mandatory.
c. Obstruction
The district court’s enhancement of Melquiades’ sentence for obstruction of
justice was not based on facts tried to the jury or admitted by Melquiades but was
based on the district court’s finding that Melquiades had admitted the quantity of
drugs in his post-arrest statement which he later contested. It thus satisfies the
first prong and second prongs of the plain error test. The obstruction of justice
enhancement raised Melquiades’ base offense level from a level 36 to a level 38, or
from a range of 188-235 months to 235-293 months. Since Melquiades’s
minimum mandatory sentence was 25 years, Melquiades’s resulting sentence
would not differed without the obstruction enhancement or if the district court had
applied the guidelines in an advisory instead of mandatory fashion.
III. CONCLUSION
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The district court did not err in calculating the drugs attributed to
Melquiades, enhancing his sentence for possession of a weapon, or in applying an
enhancement for obstruction of justice. Nothing in the record establishes a
reasonable probability that if the district court had considered the guidelines range
it arrived at using these enhancement as merely advisory, instead of mandatory,
and had taken into account any otherwise unconsidered § 3553 factors, the court
would have imposed a lesser sentence than it did.
AFFIRMED.
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United States v. George Melquiades
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-06-29
Citations: 139 F. App'x 172
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