IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 4, 2008
No. 07-10143 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
PEDRO RAFAEL MOLINA,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Pedro Rafael Molina appeals his criminal sentence. We affirm.
I
Molina was indicted by a grand jury and charged with the following
counts:
Count 1: Possession of a controlled substance (marijuana) with intent to
distribute1 and aiding and abetting;2
1
21 U.S.C. § 841(a)(1) & (b)(1)(D).
2
18 U.S.C. § 2.
No. 07-10143
Count 2: Possession of a firearm in furtherance of a drug trafficking crime,
and carrying a firearm during and in relation to a drug trafficking
crime;3
Count 3: Possession of a firearm by a convicted felon.4
Molina pleaded guilty to the indictment with no plea agreement.
The probation officer prepared a presentencing report5 (PSR) that grouped
Counts 1 and 36 and considered Count 2 separately.7 For Count 1, the probation
officer determined that the offense involved 33.5 kilograms of marijuana,
resulting in a base offense level of 18.8 The probation officer reduced this level
by 3 for acceptance of responsibility.9 The total offense level for grouped Counts
1 & 3 was 15. Combined with Molina’s criminal history category of III, the
advisory Guidelines sentencing range for these Counts was 24–30 months of
imprisonment. The Guideline sentence for Count 2 was the statutory minimum:
5 years,10 to run consecutively to the other sentence.11
Neither Molina nor the government objected to the final revision of the
PSR. The district court adopted the PSR, sentenced Molina to 30 months’
3
18 U.S.C. § 924(c).
4
18 U.S.C. § 922(g)(1).
5
The PSR was amended twice; the amendments are not relevant to this appeal.
Citations to the PSR refer to the Second Amended PSR (the final version).
6
See UNITED STATES SENTENCING GUIDELINES MANUAL (2006) (U.S.S.G. or Guidelines)
§ 3D1.1 (grouping rules).
7
See id. § 2K2.4(b) (making U.S.S.G. Chapters 3 & 4, including the grouping rules,
inapplicable to violations of 18 U.S.C. § 924(c)).
8
See id. § 2D1.1(c)(11).
9
See id. §§ 3E1.1(a) & (b).
10
See id. § 2K2.4(b).
11
See 18 U.S.C. § 924(c).
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No. 07-10143
imprisonment for Counts 1 and 3, which when added to the mandatory 60
months, totaled 90 months’ imprisonment. The district court also imposed a 3
year term of supervised release on each Count, to run concurrently, and a $100
special assessment on each Count, for a total of $300. Molina did not object to
his sentence in the district court.
Molina timely appealed his sentence.
II
Molina’s sole argument on appeal is that his sentence is unreasonable.
Because Molina did not object to his sentence on this basis before the district
court, we review his challenge for plain error.12 To prevail, Molina must
establish: “(1) an error; (2) that is clear and obvious; [and] (3) that affected his
substantial rights. If these conditions are met, this court can exercise its
discretion to notice the forfeited error only if ‘the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’”13
Molina asserts that the Guidelines are “internally inconsistent” because
the conduct of possessing a firearm in furtherance of (or carrying a firearm
during and in relation to) a drug trafficking crime can either be prosecuted by
the government as an independent substantive criminal offense under 18 U.S.C.
§ 924(c) (i.e., Count 2 in this case), or instead urged as a 2-level sentencing
enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), for the crime of possession of
a controlled substance with intent to distribute (i.e., Count 1 in this case). A
sentence for a drug trafficking conviction under 18 U.S.C. § 924(c) cannot be
enhanced under section 2D1.1(b)(1) of the Guidelines.14 Molina asserts that the
applicable Guidelines range would have been 30–37 months if the conduct
12
United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007).
13
Id. at 273 (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
14
U.S.S.G. § 2K2.4 cmt. n.4.
3
No. 07-10143
supporting Count 2 had been considered only as an enhancement rather than
prosecuted as a separate offense. It is unreasonable, Molina argues, that the
same criminal conduct (i.e., possessing marijuana with intent to distribute it
while also carrying a firearm during and in relation to the intended distribution)
results in different Guidelines ranges depending only on the government’s
charging decision (i.e., whether to bring a separate charge under 18 U.S.C.
§ 924(c) or instead to seek an enhancement under 2D1.1(b)(1)). This “internal
contradict[ion]” and “inconsistency” resulting from the government’s charging
decision, he argues, strips his Guidelines sentence of its “mantle of presumed
reasonableness.”
Molina argues that any sentence above section 924(c)’s mandatory
minimum “must be based on addition[al] aggravating circumstances in order for
the term ‘reasonable’ to have any logical meaning,” though he cites no authority
for this proposition. Because he never intended to and never did harm any
person or property during the offense, Molina asserts, his 90-month sentence is
greater than necessary to serve the sentencing goals of 18 U.S.C. § 3553(a) and
is therefore unjustified. He concedes that, having been convicted of Count 2, his
sentence can be no less than 60 months. He asks us to vacate his sentence and
either remand for resentencing or reform his sentence to 60 months.
At various points in his brief, Molina describes the result of this
inconsistency in different ways. He argues: (a) a Guidelines sentence imposed
because of this inconsistency is unreasonable; (b) a Guidelines sentence imposed
because of this inconsistency should not be presumed reasonable; and
(c) regardless of the correct Guidelines range, any sentence above the mandatory
minimum must be supported by additional aggravating circumstances. The
issue—in any of the ways Molina has cast it—appears to be one of first
impression in this Circuit.
4
No. 07-10143
III
Although we have not addressed the precise issue before us, our case law
strongly undermines his theory, and three other Circuits have considered and
rejected the same or similar legal theories.15
The Eighth Circuit’s decision in United States v. Foote16 is the most
analogous. The criminal defendants in Foote challenged their sentences, arguing
that the Sentencing Guidelines were “invalid” because the prosecutor’s discretion
to choose between pursuing the independent charge and pursuing the sentencing
enhancement for the same conduct created a sentencing disparity in violation of
18 U.S.C. § 3553(a)(6).17 The Eighth Circuit rejected their argument:
The Sentencing Commission was fully aware of the existence of
section 924(c) and its mandatory sentencing requirement when it
constructed the Guidelines sentencing system. The fact that the
prosecutor is empowered to choose between charging a violation of
section 924(c) and merely seeking an enhancement of sentence
based on his evaluation of the strength of the case against the
defendant does not in any way violate the statutory goal of
“avoid[ing] unwarranted sentence disparities.”18
The court also cited the Supreme Court’s decision in United States v.
Batchelder19 for the principle that “‘[j]ust as a defendant has no constitutional
right to elect which of two applicable federal statutes shall be the basis of his
15
See United States v. Duncan, 479 F.3d 924 (7th Cir. 2007); United States v. Stanley,
928 F.2d 575 (2d Cir. 1991); United States v. Foote, 898 F.2d 659 (8th Cir. 1990).
16
Foote, 898 F.2d at 666.
17
Id.
18
Id. (quoting 18 U.S.C. § 3553(a)(6)).
19
United States v. Batchelder, 442 U.S. 114 (1979).
5
No. 07-10143
indictment and prosecution, neither is he entitled to choose the penalty scheme
under which he will be sentenced.’”20
The Second Circuit’s decision in United States v. Stanley21 is also
instructive. Like Molina, Stanley was convicted of both a drug trafficking
offense and possessing a weapon in furtherance of that offense. Under the then-
mandatory Guidelines, the district court departed downward from the
recommended sentence range for the drug trafficking offense to avoid what it
perceived to be an unwarranted sentencing disparity. The district court believed
the government only used the threat of a section 924(c) charge in plea bargaining
and that a defendant should not be subject to a different sentence merely
because he refused to plead guilty to the underlying drug trafficking charge. The
sentencing disparity between defendants who pleaded guilty and those who went
to trial, the district court believed, was unwarranted. The Second Circuit held
that the supposed disparity was not a ground for a downward departure. First,
U.S.S.G. § 2K2.4(a) application note (2) (now note (4)) demonstrated that the
Sentencing Commission “certainly considered” that the same conduct might be
subject to either a mandatory minimum under 18 U.S.C. § 924(c) or to a two-
level enhancement of a drug trafficking charge: the application note prevents the
enhancement from being included if there was a simultaneous conviction under
section 924(c).22 The “disparity” was thus not beyond the Commission’s
consideration and was not a valid ground for departure from the then-mandatory
Guidelines under controlling Second Circuit precedent.23 Second, any disparity
resulting from the government’s prosecutorial decisions was not unwarranted
20
Foote, 898 F.2d at 666. (quoting Batchelder, 442 U.S. at 125).
21
United States v. Stanley, 928 F.2d 575 (2d Cir. 1991).
22
Id. at 580.
23
Id. (citing United States v. Joyner, 924 F.2d 454, 460 (2d Cir. 1991)).
6
No. 07-10143
because United States v. Batchelder24 and Bordenkircher v. Hayes25 permit the
government to choose between different statutory penalty schemes applying to
the same conduct as long as its selection is not “‘based upon an unjustifiable
standard such as race, religion, or other arbitrary classification.’”26 The Second
Circuit also pointed out that section 924(c) requires that the five-year minimum
sentence be imposed in addition to any other term of imprisonment. The court
reasoned that to reduce the drug trafficking sentencing range because of the
length of the section 924(c) minimum would be to nullify Congress’s intent that
a conviction under that section require five years in addition to the drug
trafficking sentence.27
More recently, in United States v. Duncan,28 the Seventh Circuit rejected
a similar argument. Duncan and his co-defendant robbed a bank using machine
guns and later opened fire upon police while fleeing. Duncan’s co-defendant
pleaded guilty pursuant to a plea agreement, while Duncan went to trial and
was convicted. Duncan’s sentence included a 30-year mandatory minimum
sentence because he had used a machine gun,29 while his co-defendant’s sentence
included only a 10-year mandatory minimum, apparently for discharging a
firearm other than a machine gun.30 Duncan argued this disparity between the
30-year mandatory minimum applied to him and the 10-year minimum applied
24
United States v. Batchelder, 442 U.S. 114 (1979).
25
Bordenkircher v. Hayes, 434 U.S. 357 (1978).
26
United States v. Stanley, 928 F.2d 575, 581 (2d Cir. 1991) (quoting Bordenkircher, 434
U.S. at 364).
27
See id. at 582.
28
United States v. Duncan, 479 F.3d 924 (7th Cir. 2007).
29
18 U.S.C. § 924(c)(1)(B)(ii).
30
18 U.S.C. § 924(c)(1)(A)(iii).
7
No. 07-10143
to his co-defendant, when they had engaged in the same conduct, was an
unwarranted disparity under 18 U.S.C. § 3553(a)(6).31 The Seventh Circuit held
that the government’s decision not to prosecute the co-defendant for use of the
machine gun was a matter of prosecutorial discretion that the court would not
“second guess” absent a showing of invidious discrimination.32 Citing earlier
Circuit precedent, the court also echoed the Second Circuit’s logic in Stanley that
reducing the sentence for an underlying offense in reaction to a statutory
minimum additional sentence would “effectively reduce[] the mandatory
minimum sentence.”33
There are two principal legal doctrines that underlie these decisions, and
the law in this Circuit is congruent with the law of our sister Circuits with
respect to those principles. The first addresses a court’s deference to
prosecutorial discretion. The second addresses Congress’s intent as expressed
in 18 U.S.C. § 924(c) and the intent of the Guidelines.
The government has great discretion in deciding whether, and which
offenses, to prosecute. As we stated in United States v. Lawrence, “[a]s a general
rule, . . . substantial deference is accorded decisions requiring the exercise of
prosecutorial discretion,”34 and those decisions are not subject to judicial review
“‘absent a showing of actual vindictiveness or an equal protection violation.’”35
“We allow the government discretion to decide which individuals to prosecute,
which offenses to charge, and what measure of punishment to seek.”36 Citing the
31
Duncan, 479 F.3d at 928.
32
Id.
33
Id. at 930 (citing United States v. Roberson, 474 F.3d 432, 436 (7th Cir. 2007)).
34
United States v. Lawrence, 179 F.3d 343, 347 (5th Cir. 1999).
35
Id. (quoting United States v. Ballard, 779 F.2d 287, 295 (5th Cir. 1986)).
36
Id. at 348 (citing United States v. Batchelder, 442 U.S. 113, 124 (1979)).
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No. 07-10143
Supreme Court’s decision in Williams v. Illinois, we specifically rejected the
theory that the same conduct could not be subject to different punishment
depending only on the government’s prosecutorial decisions.37 Molina has not
argued that the government was vindictive in its prosecution or that it violated
any provisions of the Constitution. Molina’s argument that his sentence is
infirm because his conduct could have been subject to a less severe punishment
if the government had made a different prosecutorial decision fails.
To the extent that Molina’s argument is founded upon a theory that
Congress did not intend for a person convicted of both drug trafficking and a
weapons offense under section 924(c) to be imprisoned longer than section
924(c)’s mandatory minimum requires, at least absent aggravating
circumstances, his argument is refuted by the plain language of section 924(c)
and the Guidelines’ application notes. One convicted under section 924(c)
shall, in addition to the punishment provided for [the underlying]
crime of violence or drug trafficking crime . . . be sentenced to a
term of imprisonment of not less than 5 years . . . .38
The plain meaning of the text is that the mandatory minimum is a punishment
in addition to any punishment for the drug trafficking crime (or crime of
violence).39
If Molina’s argument is that the Sentencing Commission misunderstood
or misapplied Congress’s intent regarding section 924(c), he is also mistaken.
The Guidelines recognize section 924(c)’s mandatory minimum punishment and
they specifically account for the possibility that the same conduct could be
punished either as a substantive count or as an enhancement:
37
Id. (citing Williams v. Illinois, 399 U.S. 235, 243 (1970)).
38
18 U.S.C. § 924(c) (emphasis added).
39
See also United States v. Martinez, 28 F.3d 444, 446 (5th Cir. 1994).
9
No. 07-10143
If a sentence under this guideline is imposed in conjunction with a
sentence for an underlying offense, do not apply any specific offense
characteristic for possession, brandishing, use, or discharge of an
explosive or firearm when determining the sentence for the
underlying offense.40
We reject Molina’s argument that Section 924(c) and the Guidelines are
inconsistent.
Molina has failed to show that his sentence is unreasonable.
* * *
AFFIRMED.
40
U.S.S.G. § 2K2.4 cmt. n.4.
10