United States v. Gonzalez , 682 F.3d 201 ( 2012 )

11-2722-cr
United States v. Deida
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2011
(Argued: May 29, 2012 Decided: June 20, 2012)
Docket No. 11-2722-cr
UNITED STATES OF AMERICA,
Appellee,
v.
DOMINGO GONZALEZ, JR.,
Defendant,
FRANCISCO DEIDA,
Defendant-Appellant.
Before:
WINTER, MCLAUGHLIN, and CHIN, Circuit Judges.
Appeal from a judgment of conviction and sentence
of the United States District Court for the District of
Connecticut (Underhill, J.).
AFFIRMED.
ANTHONY EDWARD KAPLAN, Assistant United
States Attorney (Sarah P. Karwan,
Sandra S. Glover, Assistant United
States Attorneys, on the brief), for
David B. Fein, United States
Attorney, District of Connecticut,
New Haven, Connecticut, for
Appellee.
DAVID VINCENT DEROSA, Law Offices of David
V. DeRosa, Naugatuck, Connecticut;
Donald Cretella, Zingaro & Cretella,
LLC, Bridgeport, Connecticut, for
Defendant-Appellant.
PER CURIAM:
Defendant-appellant Francisco Deida, convicted
after a jury trial of two counts of bank robbery in
violation of 18 U.S.C. § 2113(a) and sentenced to life
imprisonment, appeals from a judgment of conviction and
sentence entered by the United States District Court for the
District of Connecticut (Underhill, J.) on July 6, 2011. We
hold that the district court did not err in sentencing Deida
to a mandatory term of life imprisonment pursuant to 18
U.S.C. § 3559(c). Accordingly, we affirm.
BACKGROUND
Deida's conviction stems from two armed bank
robberies in Connecticut on January 28, 2009, and April 6,
2009. Deida committed both robberies with co-defendant
Domingo Gonzalez, who entered the banks with Deida, and co-
defendant Henry Crespo, who served as the getaway driver
both times. During the first robbery, Deida and Gonzalez
entered the Webster Bank in Milford wearing heavy clothing
and masks, carrying umbrellas that partially blocked the
bank's video surveillance, and wielding guns. The
defendants fled in a car driven by Crespo with approximately
$84,000.
The second robbery was of a TD Bank in Woodbridge,
Connecticut. Deida and Gonzalez again wore heavy clothing
and masks and carried umbrellas and guns. Deida also wore a
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fake mustache and prosthetic nose. A postal worker who had
been delivering mail to the bank observed the crime in
progress, left the bank, and called 911 from his postal
truck. The defendants left the bank with approximately
$23,000 and fled in Gonzalez's Cadillac, driven by Crespo.
A high speed police chase ensued. Crespo drove the getaway
car to New Haven, where Deida and Gonzalez jumped out of the
car and fled on foot. Crespo abandoned the car a few blocks
away and was apprehended by police later that day.
Before trial, the government filed an information
pursuant to 18 U.S.C. § 3559(c) and 21 U.S.C. § 851notifying Deida of its intention to seek a sentence of
mandatory life imprisonment. The information asserted three
prior felony convictions: robbery in the first degree,
assault in the first degree, and manslaughter in the first
degree, all in violation of Connecticut law.
At trial, the government presented evidence found
in the vicinity of the abandoned getaway car that connected
the three defendants to the two bank robberies. The
evidence included Gonzalez's cell phone, and records for the
phone showed that Gonzalez called a telephone number around
the times of both robberies that matched a telephone number
listed as Deida's contact number in a job application found
in his possession at the time of his arrest. On March 4,
2010, the jury found Deida guilty of both robberies.
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At sentencing on June 21, 2011, the government
presented evidence of Deida's three prior convictions. The
government argued that the convictions were "serious violent
felonies" under the three strikes provision of 18 U.S.C. §
3559(c), thereby subjecting him to a mandatory sentence of
life imprisonment. The district court agreed and found that
"each of the three crimes set forth in the information ha[s]
been proven to have been committed by the defendant here,
Francisco Deida," and that the crimes were serious violent
felonies under § 3559(c). The district court sentenced
Deida to a term of life imprisonment on each of the two
counts.
This appeal followed.
DISCUSSION
Title VII of the Violent Crime Control and Law
Enforcement Act of 1994 (the "Act"), Pub. L. No. 103-322,
108 Stat. 1796 (1994), created a mandatory sentencing scheme
for federal defendants convicted of repeat violent felonies.
Under Section 7001, known as the "three strikes" provision,
any individual convicted of three violent felonies faces a
mandatory sentence of life imprisonment. 108 Stat. 1982-
1085 (codified as amended at 18 U.S.C. § 3559(c) (mandating
life imprisonment for defendants convicted of "serious
violent felon[ies]" if they have previously been convicted
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of two more serious violent felonies)); see 18 U.S.C. §
3559(c)(2)(F) (defining "serious violent felony").
On appeal, Deida makes two arguments: (1) the
three strikes provision of § 3559 violates the principle of
separation of powers and (2) prior convictions subjecting a
defendant to a statutory sentencing enhancement must be
found by a jury and not a judge. Both questions raise
issues of law, which we generally review de novo, but
because Deida did not raise the issues below, the district
court's failure to rule as Deida now urges is reviewed for
plain error. See, e.g., United States v. Reyes, 557 F.3d
84, 87 (2d Cir. 2009).
First, Deida's argument that the three strikes
statutory scheme violates the principle of separation of
powers is without merit. Although this Court has not yet
considered the question, all four Courts of Appeals that
have addressed the issue have upheld the statute. See,
e.g., United States v. Gurule, 461 F.3d 1238, 1246-47 (10th
Cir. 2006); United States v. Kaluna, 192 F.3d 1188, 1199
(9th Cir. 1999); United States v. Rasco, 123 F.3d 222, 226-
27 (5th Cir. 1997); United States v. Washington, 109 F.3d
335, 338 (7th Cir. 1997). We agree and hold that the three
strikes provision of § 3559(c)(1) is constitutional and does
not violate the doctrine of separation of powers.
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Deida argues that the statute gives the executive
branch, via the United States Attorney, the authority to
determine a defendant's sentence when the judiciary should
have full control over sentencing. The Constitution,
however, does not require all governmental duties to be the
exclusive realm of one branch. See Mistretta v. United
States, 488 U.S. 361, 380 (1989) ("[T]he Framers did not
require -- and indeed rejected -- the notion that the three
Branches must be entirely separate and distinct."). While
the three branches of government must remain "entirely free
from the control of coercive influence, direct or indirect,
of either of the others," id. at 380 (citation and internal
quotation marks omitted), "a degree of overlapping
responsibility [and] a duty of interdependence" is both
expected and necessary, id. at 381. Specifically, the
Supreme Court has acknowledged the need for, and
constitutionality of, coordination among the branches for
matters of federal sentencing. See Mistretta, 488 U.S. at
365, 380-412 (upholding Congress's creation of the
Sentencing Commission); see also Chapman v. United States,
500 U.S. 453, 467 (1991) ("Congress has the power to define
criminal punishments without giving the courts any
sentencing discretion."). This Court, too, has consistently
recognized that the judiciary does not possess exclusive
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control over sentencing matters. See United States v.
Sanchez, 517 F.3d 651, 670-71 (2d Cir. 2008) ("Although [21
U.S.C. § 851] gives prosecutors some degree of control over
a defendant's ultimate sentence, it does not violate the
principle of separation of powers."); see also United States
v. Acoff, 634 F.3d 200, 201-02 (2d Cir. 2011) ("'[T]he scope
of judicial discretion with respect to a sentence is subject
to congressional control.'" (quoting Mistretta, 488 U.S. at
364)). Moreover, prosecutors are permitted discretion as to
which crimes to charge and which sentences to seek. See
United States v. Jennings, 652 F.3d 290, 301 (2d Cir. 2011).
The authority that § 3559 delegates to prosecutors,
therefore, does not unconstitutionally delegate the
judiciary's power to the executive branch. See Washington,
109 F.3d at 338 ("The prosecutor's power to pursue an
enhancement under § 3559(c)(1) is no more problematic than
the power to choose between offenses with different maximum
sentences.").
We conclude that § 3559 poses no danger of
"coercive influence" by the executive branch over the
judiciary or of "aggrandizement or encroachment." See
Mistretta, 488 U.S. at 380-82. Deida's separation of powers
argument therefore fails.
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Second, Deida's argument that prior convictions
subjecting a defendant to life imprisonment under § 3559
must be found by a jury in a bifurcated jury trial is also
without merit. In Almendarez-Torres v. United States, 523
U.S. 224 (1998), the Supreme Court held that while elements
of a crime in general must be proven beyond a reasonable
doubt, prior convictions leading to a recidivism-based
statutory sentencing enhancement are not "elements" of an
offense and are to be found by a judge rather than a jury.
Id. at 239-247; see also Apprendi v. New Jersey, 530 U.S.
466, 498-90 (2000) (preserving Almendarez-Torres exception).
Deida argues that Almendarez-Torres is no longer good law,
but he is simply incorrect. Although it is true that
Almendarez-Torres has been criticized, see, e.g., Shepard v.
United States, 544 U.S. 13, 26-28 (2005) (Thomas, J.,
concurring in part and concurring in the judgment);
Apprendi, 530 U.S. at 489 and n.15 ("[I]t is arguable that
Almendarez-Torres was incorrectly decided . . . ."), the
decision has not been overturned, as this Court recognized
in United States v. Snype, 441 F.3d 119, 147-52 (2d Cir.
2006) (rejecting Sixth Amendment and due process challenges
to § 3559(c)(3)(A)). Deida's second argument fails as well.
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CONCLUSION
We have considered all of Deida's remaining
arguments on appeal 1 and find them to be without merit.
Accordingly, the judgment of the district court is AFFIRMED.
1
Deida argues that the district court erred in admitting
into evidence the job application found on his person at the time
of his arrest because it was hearsay. Because he did not make
this argument below, the argument was not preserved and we review
the district court's ruling only for plain error. The district
court did not err at all, much less plainly err.
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