United States v. Cotto-Santiago , 15 F. App'x 2 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1495
UNITED STATES,
Appellee,
v.
EDWIN COTTO SANTIAGO, a/k/a SEALED DEFENDANT 8,
a/k/a EL GATO, a/k/a EL NINO,
a/k/a EL LOCO, a/k/a EL PEQUENO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Ignacio Fernandez de Lahongrais on Anders brief for
appellant.
Edwin Cotto Santiago on brief pro se.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Thomas F.
Klumper, Assistant United States Attorney, on brief for
appellee.
July 10, 2001
Per Curiam. Defendant’s counsel has submitted an Anders
brief and motion to withdraw, asserting that there are no
meritorious issues to be raised on appeal. See Anders v.
California, 386 U.S. 738, 744 (1967); 1st Cir. Loc. R.
46.4(a)(4). Defendant Edwin Cotton Santiago has filed a pro
se brief claiming ineffective assistance of counsel and
sentencing error. He seeks only to be re-sentenced, not to
withdraw his guilty plea. As required by Anders, we have
conducted a full examination of the proceedings. Based on
that examination, we conclude that this appeal is wholly
frivolous as it presents no issue having an arguable basis in
law or fact.
This case was consolidated for purposes of briefing and
argument with five appeals by co-defendants and the government
has filed a single brief in all six appeals. However, this is
the only case in which defense counsel has filed a motion to
withdraw and an Anders brief. Accordingly, we are issuing a
separate opinion in this case.
Santiago pled guilty to a single count of a multi-count
indictment charging him and twenty co-defendants with
conspiring “to possess with intent to distribute more than one
-2-
kilogram of heroin, and to distribute more than one kilogram
of heroin,” in violation of 21 U.S.C. §§ 841(a)(1) & 846. The
statutorily prescribed penalty for that quantity of heroin is
a mandatory minimum of ten years and a maximum of life
imprisonment. After pleading guilty, Santiago filed a pro se
motion seeking dismissal of his indictment on double jeopardy
grounds, which the court denied. The probation department
calculated a guideline sentencing range of 121 to 151 months,
as set forth in the presentence investigation report.
Santiago received a ten-year sentence (the statutory mandatory
minimum).
In his pro se brief, Santiago indicates that he does not
seek to withdraw his guilty plea. In any event, we agree with
appellant’s counsel that the change-of-plea hearing covered
all of the necessary points. Appellant’s counsel also
correctly concluded that there was no meritorious issue
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). “By
its own terms, the holding in Apprendi applies only when the
disputed ‘fact’ enlarges the applicable statutory maximum and
the defendant’s sentence exceeds the original maximum.” United
States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001). Here, the
statutory maximum was dictated by Santiago’s guilty plea to a
count that specified a drug quantity of “one or more
-3-
kilograms” of heroin. He received a sentence well below that
original maximum.
Similarly, our review of the record indicates that the
district court did not err in denying Santiago’s motion to
dismiss his indictment on double jeopardy grounds. We focus
only on the counts to which Santiago pled guilty “because in
the taking of pleas jeopardy ordinarily does not attach to
counts which are dismissed and on which no finding of guilt is
made.” United States v. Rivera-Feliciano, 930 F.2d 951, 954
(1st Cir. 1991). Santiago pled guilty in the United States
District Court for the Eastern District of New York to one
count of conspiracy to import heroin (encompassing the time
period of the present conspiracy charge). In this case,
Santiago pled guilty to one count of conspiracy to possess
with intent to distribute and to distribute heroin. Those
offenses each contain an element not contained in the other.
See United States v. Gomez-Pabon, 911 F.2d 847, 861-62 (1st
Cir. 1990). Therefore, the Double Jeopardy Clause does not bar
this prosecution. See United States v. Dixon, 509 U.S. 688,
696 (1993).
In his pro se brief, Santiago claims ineffective
assistance of counsel resulting in a sentencing error. The
crux of his argument is that counsel was ineffective in
-4-
allowing him to agree to a guideline sentencing range (“GSR”)
of 121 to 151 months. He argues that the stipulated facts
incorporated in the plea agreement supported a finding of a
drug quantity of only 375 grams of heroin, corresponding with
a base offense level (“BOL”) of 26. That BOL would have
yielded a GSR of 70 to 87 months. “We do not normally
consider ineffective-assistance- of-counsel claims on direct
appeal.” United States v. Natanel, 938 F.2d 302, 309 (1st Cir.
1991). However, this case falls within the following
exception to that rule:
[W]here the critical facts are not genuinely in
dispute and the record is sufficiently developed to
allow reasoned consideration of an ineffective
assistance claim, an appellate court may dispense
with the usual praxis and determine the merits of
such a contention on direct appeal.
Id.Even if the applicable GSR should have been 70 to 87
months (an issue that we need not decide), the sentencing
guidelines would not permit imposition of a sentence below the
statutory mandatory minimum of 120 months. See U.S.S.G. §
5G1.1(b) (“Where a statutorily required minimum sentence is
greater than the maximum of the applicable guideline range,
-5-
the statutorily required minimum sentence shall be the
guideline sentence.”). Santiago does not dispute that he has
more than one criminal history point, which precludes
application of the safety valve provision and imposition of a
sentence below the statutory minimum. See 18 U.S.C. § 3553(f).
Therefore, he cannot meet the prejudice prong of the
ineffective assistance of counsel test. Santiago received the
lowest sentence permitted by statute for the count to which he
pled guilty.1
Counsel’s motion to withdraw is granted and appellant’s
conviction and sentence are affirmed. See 1st Cir. Loc. R.
27(c).
1 The only sentencing error that we detect is in Santiago’s
favor. It appears that the district court erred in imposing the
statutory mandatory minimum sentence even though that sentence
was below the GSR. See U.S.S.G. § 5G1.1. We do not correct that
error, however, because the government did not deign to file a
cross-appeal.
-6-