United States v. Parrilla-Sanes , 6 F. App'x 38 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-2158
UNITED STATES,
Appellee,
v.
LUIS ANGEL PARRILLA-SANES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Luis Angel Parrilla-Sanes 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.
April 9, 2001
Per Curiam. Defendant Luis Angel Parrilla-Sanes,
having been convicted by a jury of two drug-related
offenses, and having opted to proceed pro se on appeal in
response to his counsel's submission of an Anders brief,
advances various challenges to his sentence. His primary
contention is that the district court failed to anticipate
the rule announced in Apprendi v. New Jersey, 530 U.S. 466(2000). Defendant is correct that an Apprendi violation
occurred here, but his victory is a Pyrrhic one; we review
that claim only for plain error and find none. As
defendant's remaining contentions also prove unavailing, we
will thus affirm the judgment--after first pausing to
correct a clerical error therein.
Defendant, a former police officer, participated
in a scheme to transport 109 kilograms of cocaine from
Colombia to Puerto Rico. The drug shipment ended up making
it only part way--to the island of Dominica in the West
Indies--before the plot was foiled. Defendant was indicted
and convicted on two charges: conspiracy to possess with
intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1) & 846,
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and conspiracy to import same into the United States, id. §§
952(a)(1) & 963. The district court, after making two
adjustments to the offense level and rejecting two others,
imposed concurrent prison terms of 292 months along with
five years of supervised release.
The Apprendi rule provides that any fact (other
than a prior conviction) that increases the maximum penalty
for a crime is an element of the offense, and accordingly
must be (1) set forth in the indictment, (2) submitted to a
jury, and (3) proven beyond a reasonable doubt. The
district judge here, applying then-prevailing circuit
precedent, withheld the issue of drug quantity from the jury
and instead determined it at sentencing. Had defendant's
sentence not exceeded the 20-year default maximum that
applies under 21 U.S.C. § 841(b)(1)(C) regardless of drug
quantity, Apprendi would not have been implicated. See,
e.g., United States v. Robinson, 241 F.3d 115, 119-20 (1 st
Cir. 2001); United States v. Houle, 237 F.3d 71, 78-81 (1st
Cir. 2001). Yet because his 292-month sentence was in
excess thereof, the government correctly concedes that the
question of drug quantity should have gone to the jury.1
1 It is doubtful, however, that the indictment itself
contravened the Apprendi rule. It specifically charged that
more than five kilograms of cocaine were involved--an amount
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Nonetheless, we review only for plain error
inasmuch as no such objection was voiced below. See, e.g.,
United States v. Baltas, 236 F.3d 27, 40 (1st Cir. 2001). To
prevail under that standard, defendant must establish not
only that a clear error occurred but that it affected his
"substantial rights," which usually requires a showing that
the error was "prejudicial." United States v. Olano, 507
U.S. 725, 734 (1993). Even then, an appellate court will
grant relief only if the error "seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings." Id. at 736 (internal quotation marks
omitted); accord, e.g., Johnson v. United States, 520 U.S.
461, 467 (1997). Petitioner falls well short of the
requisite showing--for the simple reason that the drug
amount, which was established through the uncontested
testimony of a forensic scientist, was never thereafter
placed in dispute. The Court in Johnson found no plain
error where the element in question was "essentially
sufficient to trigger the enhanced penalties in 21 U.S.C. §§
841(b)(1)(A) & 960(b)(1). We need not resolve this question,
since an unpreserved challenge to a defective indictment in this
context is subject to plain-error review (just like the other
two prongs of Apprendi). See, e.g., United States v. Terry, 240
F.3d 65, 74 (1st Cir. 2001); United States v. Mojica-Baez, 229
F.3d 292, 307-12 (1st Cir. 2000), petition for cert. filed, No.
00-8464 (Jan. 30, 2001). Contra United States v. Tran, 234 F.3d
798, 809-10 (2d Cir. 2000).
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uncontroverted at trial," id. at 470; here, the quantity of
drugs was entirely uncontroverted. Under analogous
circumstances, this court and others have readily concluded
that plain error was lacking. See, e.g., United States v.
Terry, 240 F.3d 65, 74-75 (1st Cir. 2001) (alternative
holding); United States v. Keeling, 235 F.3d 533, 539-40
(10th Cir. 2000); United States v. Swatzie, 228 F.3d 1278,
1283 (11th Cir. 2000). Compare, e.g., United States v.
Nordby, 225 F.3d 1053, 1061 (9th Cir. 2000). Defendant's
Apprendi-based claims thus entitle him to no relief.2
Defendant's remaining challenges, which pertain to
the sentencing adjustments, require little discussion. He
first assigns error to the court's finding that he did not
warrant a two-level decrease under U.S.S.G. § 3B1.2(b) as a
minor participant. Yet the evidence showed that defendant
was "a player rather than ... a dabbler," United States v.
Ortiz-Santiago, 211 F.3d 146, 149 (1st Cir. 2000)--for
2 No need arises to address the government's alternative
contention: that plain error is lacking because two 20-year
sentences could have been imposed and made to run consecutively
to the extent necessary to achieve the 292-month sentence
prescribed by the Guidelines. While some other courts have
endorsed such reasoning (at least in the plain-error context),
see, e.g., United States v. Page, 232 F.3d 536, 544-45 (6th Cir.
2000), cert. denied, ___ S. Ct. ___, 2001 WL 121935; compare
United States v. Jones, 235 F.3d 1231, 1237-38 (10th Cir. 2000),
we express no views thereon.
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example, that he was involved in various planning sessions
and helped to recruit a pilot. There was no clear error.
Second, defendant objects to a two-level
enhancement imposed under § 2D1.1(b)(1) for possession of a
dangerous weapon. While conceding that he knew of the
presence of firearms, he protests that he was never in
possession thereof and that the evidence was insufficient to
warrant conviction under 18 U.S.C. § 924(c). Yet the
enhancement "requires only that it have been reasonably
foreseeable that an accomplice would possess a gun." United
States v. De Leon Ruiz, 47 F.3d 452, 454 (1st Cir. 1995).
And "section 924(c)'s 'use or carry' language and the
restrictive gloss from Bailey [v. United States, 516 U.S.
137 (1995)] are not used in the guideline." United States
v. Aker, 181 F.3d 167, 172 (1st Cir. 1999).
Finally, defendant complains of a two-level
adjustment under § 3C1.1 for obstruction of justice--an
enhancement arising from his attempt to tamper with
potential witnesses. The same allegations resulted in the
pretrial revocation of his bail. While the record before us
omits some of the particulars, we find it sufficient to
uphold the enhancement. For example, defendant does not
deny making the comments in question to the pilot Maldonado;
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he simply points out that it was Maldonado who initiated the
conversation--a contention that, even if true, has little
relevance. Defendant does not dispute that attempted
subordination of perjury warrants an obstruction-of-justice
enhancement. See, e.g., Aker, 181 F.3d at 172.
As a postscript, we take note of a clerical error
on page four of the written judgment. The judgment
incorrectly reports that the district court adopted the
guideline calculations in the pre-sentence report (PSR); in
fact, the court diverged therefrom. More particularly, in
listing the sentencing enhancements that ended up being
imposed, the judgment incorrectly mentions an abuse-of-
position-of-trust enhancement (which the PSR had recommended
but the court rejected) while making no reference to the
gun-possession enhancement. This was obviously a clerical
oversight. Cf. United States v. Muniz, 49 F.3d 36, 42 n.5
(1st Cir. 1995) (noting that court's oral expression of
sentencing rationale is normally honored over divergent
written explanation). Even though the miscue made no
difference below--the total offense level, the ensuing
range, and the actual sentence were all accurately reported-
-it conceivably could have collateral consequences. We
therefore direct the Clerk of the district court to amend
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the judgment accordingly. See, e.g., Ansin v. River Oaks
Furniture, Inc., 105 F.3d 745, 761 (1st Cir. 1997).
As amended, the judgment is affirmed.
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