United States v. Medina

United States Court of Appeals
For the First Circuit

No. 04-2527

UNITED STATES OF AMERICA,

Appellee,

v.

EDGAR MEDINA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Elaine Pourinski for appellant.
Donald Lockhart, Assistant United States Attorney, with whom
Robert Clark Corrente, United States Attorney, and Stephen G.
Dambruch, Assistant United States Attorney, were on brief, for
appellee.

October 25, 2005
 STAHL, Senior Circuit Judge. Edgar Medina was convicted

of illegal possession with intent to distribute cocaine base,

heroin, and marijuana, and for possession of a firearm in

furtherance of a drug trafficking crime. He appeals his conviction

and his sentence, which was imposed under the Federal Sentencing

Guidelines before they were held to be advisory rather than binding

on trial courts. United States v. Booker, 125 S.Ct. 738 (2005).

We affirm the conviction but remand to the trial court for

resentencing in light of Booker.

I. Background

On February 7, 2004, the Providence Police responded to

a call from Iyonna Washington, who reported that Edgar Medina had

threatened her with physical harm and had just broken the

windshield of her car with a silver gun. When the officers arrived

at the scene, Washington directed them to a nearby apartment to

which she said Medina had retreated. Making their way into the

apartment with the permission of its owner, the police took Medina

into custody.

One of the arresting officers escorted Medina downstairs

to a waiting patrol car, while the other stayed behind and, with

permission, searched the apartment in which Medina had been

apprehended. In a shoe box hidden under a bed, the officer found

a black hand gun, drug processing supplies, and a sizeable quantity

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of drugs packed into small plastic bags. The box also contained a

number of documents, including court papers bearing Medina's name.

Medina was indicted on April 7, 2004, on charges that he

possessed with intent to distribute over 50 grams of cocaine base

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii); possessed

with intent to distribute quantities of heroin and marijuana in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and (b)(1)(D); and

possessed a firearm in furtherance of a drug trafficking crime in

violation of 18 U.S.C. § 924(c)(1)(A). After a jury trial, he was

convicted on all counts. The trial judge, expressing dismay over

the length of the sentence that the Guidelines obligated her to

impose on Medina, who was, she noted, just 19 years old at the time

of the sentencing, imposed the minimum sentence available under the

Guidelines for the drug charges, a term of 15 years, 8 months. The

gun possession charge carried an additional, statutorily-mandated

consecutive sentence of 5 years, bringing Medina’s total sentence

to nearly 21 years. Medina now appeals both his conviction and his

sentence.

II. Discussion

Medina challenges his conviction on three grounds. He

argues that 1) his counsel failed to provide effective assistance;

2) the trial court admitted evidence in violation of the Federal

Rules of Evidence; and 3) the trial court erroneously instructed

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the jury as to one of the drug charges. Medina also challenges his

sentence under Booker. We address each challenge in turn.

A. Ineffective Assistance of Counsel

Medina claims that his counsel’s performance fell short

of the Sixth Amendment standard for effective assistance set forth

in Strickland v. Washington, 466 U.S. 668 (1984). We generally do

not entertain claims of ineffective assistance of counsel on direct

appeal. United States v. Martinez-Vargas, 321 F.3d 245, 251 (1st

Cir. 2003). We have repeatedly said that the habeas court is in a

better position to explore the basis of an ineffective assistance

claim, and barring exceptional circumstances we will not examine

such a claim unless and until it comes on appeal from the habeas

court. Medina points to no exceptional circumstances in this case

that would compel us to break with our usual practice, and so we

decline to review his ineffective assistance claims.

B. Admission of Evidence

The box in which the police found a cache of drugs also

contained a number of documents bearing Medina’s name. Among the

papers were a variety of court documents indicating that Medina had

previously been in trouble for “evading police” and which also

listed various fees and fines that he had been required to pay as

a result. The prosecutor sought to introduce the documents in an

effort to demonstrate that the contents of the box belonged to

Medina. Defense counsel declined the court’s invitation to object

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and its offer to give the jury a limiting instruction with respect

to the evidence admitted. Medina now claims that the admission of

the documents at trial was barred by the Federal Rules of Evidence,

which prohibit the use of evidence of prior acts “to show action in

conformity therewith.” Fed. R. Evid. 404(b).

Under Federal Rule of Criminal Procedure 52(b), a claim

that has been otherwise forfeited by a party’s failure to object at

trial will still be reviewed for plain error. United States v.

Olano, 507 U.S. 725 (1993). Where a defendant has waived a rule,

however, there is no error. Id. at 732-33; United States v.

Rodriguez-Leon, 402 F.3d 17, 26 (1st Cir. 2005).1

Here the trial judge called a bench conference before the

prosecution introduced the contested evidence. She asked counsel,

“You have no objection to these coming in?” to which counsel

replied, “Judge, I have no objection to them coming in.” The judge

then asked, “Do you want a cautionary instruction? It appears to me

it talks about fines --” Counsel interrupted the judge, saying,

“Judge, it’s going to come out. [Medina’s] going to take the

stand.”

1
The extinguishment of error through waiver has been sometimes
described as precluding plain error review altogether. See, e.g.,
Rodriguez-Leon, 402 F.3d at 26 (“A party waives a right when he
intentionally relinquishes or abandons it, and a waived issue
ordinarily cannot be raised on appeal.”) (citing United States v.
Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002); United States v.
Mitchell, 85 F.3d 800, 807 (1st Cir. 1996)).

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 A party’s considered decision not to avail itself of a

procedural right, evidenced here by counsel’s persistent and

reasoned refusal of the judge’s suggestions, waives that right.

Trial counsel was entitled to make out his client’s case as he saw

fit,2 and our even contemplating a claim of error here would imply

an obligation on trial judges to second-guess counsel in a way that

would disturb that entitlement. This we will not do. See United

States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st Cir. 1995)

(declining to impose obligation on trial court to issue limiting

instruction sua sponte). We hold instead that Medina, through

counsel, waived any objection to the evidentiary admission at

issue, and so we do not consider the argument.

C. Crack Cocaine

Medina urges that the trial court erred in instructing

the jury on the charge of possession of cocaine base. He did not

raise this objection at trial. In the absence of an objection

below, we review the trial court’s instruction of the jury for

plain error. United States v. Bailey, 405 F.3d 102, 110 (1st Cir.

2005).

The trial judge instructed the jury that, in order to

sustain its burden of proof as to the cocaine base charge under 21

U.S.C. § 841(a)(1) and (b)(1)(A)(iii), the government was required

2
Whether counsel’s decision was competent is of course another
matter, and Medina’s challenge on that claim will be brought before
the habeas court if Medina chooses to pursue it.

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to prove, inter alia, “that the controlled substance involved here

was cocaine base.” Medina claims that the instruction was

deficient because it permitted the jury to convict him under the

statute, which punishes trafficking in “cocaine base,” §

841(b)(1)(A)(iii), without determining whether the substance he

possessed was the particular form of cocaine base known as “crack”

or was rather some other form of cocaine base.

The question whether the statute regulates only

possession of crack or whether its rule encompasses other forms of

cocaine base is the subject of some debate and of a conflict among

the circuits. See, e.g., United States v. Edwards, 397 F.3d 570,

575-77 (7th Cir. 2005) (describing split). In this circuit,

however, it is settled that 21 U.S.C. § 841 regulates exactly what

its terms suggest: the possession of any form of “cocaine base.”

United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir. 1992)

(opinion on rehearing); see also United States v. Richardson, 225

F.3d 46, 49 (1st Cir. 2000). Crack is a form of cocaine base and

so is among the substances regulated by the statute, but the

government is not required to prove that the substance involved in

a given case is crack in order to secure a conviction under it.3

3
Medina’s argument, which does not advert to Lopez-Gil or its
progeny despite their clear applicability to this case, appears to
be predicated on a misunderstanding of the relationship between the
criminal statute prohibiting possession of cocaine base and the
provision of the Sentencing Guidelines that will sometimes suggest
a higher sentence when a defendant is convicted under the statute.
Since 1993, the Sentencing Guidelines have specified that the term

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Medina cannot show plain error because the trial court’s

instructions were simply correct, and Medina’s challenge on this

score therefore also fails.

D. Resentencing Under Booker

Medina’s several convictions subjected him to a

statutorily-prescribed minimum sentence of 15 years, composed of a

mandatory 10-year sentence under 21 U.S.C. § 841 for drug

possession and a 5-year addition for the weapons count under 18

U.S.C. § 924(c). The trial court determined that the Federal

Sentencing Guidelines mandated a longer sentence for the drug-

possession charges, and sentenced Medina to 15 years, 8 months for

the drugs, the minimum it believed the Guidelines permitted it to

impose. The Guidelines sentence and the consecutive 5-year sentence

for the weapons charge together left Medina facing a total sentence

of 20 years, 8 months.

In the time since the sentencing, the United States

Supreme Court decided Booker, which severed the provisions of the

Sentencing Guidelines that made those Guidelines binding on the

district courts. Booker, 125 S.Ct. at 764. Because this case was

“cocaine base,” as used in the Guidelines, means “crack.” See
U.S.S.G. § 2D1.1(c), Note (D). The definition in the guideline
note, however, is only relevant to the court at sentencing under §
2D1.1(c), and not to the jury in coming to a verdict under 21
U.S.C. § 841. What matters for the purposes of the conviction, and
thus for the jury instruction, is the meaning of the term “cocaine
base” under the statute, which was resolved by Lopez-Gil.

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pending on direct review when Booker was decided, we are obligated

to apply Booker to it. Id. at 769.

We have held that “Booker error is established whenever

‘a defendant's Guidelines sentence was imposed under a mandatory

Guidelines system.’” United States v. Fornia-Castillo, 408 F.3d

52, 73 (1st Cir. 2005) (quoting United States v. Antonakopoulos,

399 F.3d 68, 75 (1st Cir. 2005)). Where an objection to the

mandatory application of the Guidelines was made before the trial

court, the government has the burden of proving the harmlessness of

the error beyond a reasonable doubt. Fornia-Castillo, 408 F.3d at

73-74. Here the government concedes that Medina preserved his

Booker claim below, and further concedes that it cannot prove the

harmlessness of the error. It therefore agrees with Medina that

remand for resentencing is warranted. Accordingly, we remand the

case for resentencing in light of Booker.

III. Conclusion

For the foregoing reasons, the appellant’s conviction is

affirmed, his sentence is vacated, and the case is remanded to the

district court for resentencing.

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