United States v. Santana , 84 F. App'x 245 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-6-2004
USA v. Santana
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3626
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"USA v. Santana" (2004). 2004 Decisions. Paper 1115.
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3626
___________
UNITED STATES OF AMERICA
vs.
HENRY SANTANA
Appellant.
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 99-cr-00631-4)
District Judge: The Honorable Anita B. Brody
___________
Submitted Under Third Circuit LAR 34.1(a)
October 28, 2003
BEFORE: SCIRICA, Chief Judge, NYGAARD, and AMBRO, Circuit Judges.
(Filed: January 6, 2004 )
___________
OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellant Henry Santana pleaded guilty to drug charges in February 2001.
He appeals his 210-month sentence on the grounds that: (1) it violates Apprendi, (2) the
District Court misallocated the burdens at the sentencing hearing, and (3) the District
Court erred by enhancing his sentence for distribution in proximity to a school. Santana
seeks a remand for resentencing, or alternatively, a reversal of his conviction. We will
affirm the sentence as imposed by the District Court.
I. FACTS AND PROCEDURAL HISTORY
Because the facts are known to the parties, we review them only briefly.
Santana was a known supplier of a Philadelphia drug conspiracy known as the Bailey
Organization. On February 22, 2001, Santana pleaded guilty to conspiracy to distribute
marijuana within 1000 feet of a school and two counts of attempted possession of 1000
kg of marijuana with intent to distribute. At a sentencing hearing in November 2001, the
District Court began with a base offense level of 34 and added two enhancements
amounting to four additional levels—two points for proximity to a school and two points
for possession of a firearm. The Court then deducted three points for acceptance of
responsibility. Santana’s total offense level was 35, which combined with Santana’s
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criminal history to yield a sentencing range of 210 to 262 months. The Court sentenced
Santana to 210 months.
We have jurisdiction over Santana’s appeal under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
II. DISCUSSION
Santana’s arguments on appeal can be consolidated into three issues. First,
he argues that his sentence is invalid under the Supreme Court’s decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000). Next, Santana contends the District Court’s
distribution of burdens at the sentencing hearing was inappropriate. Finally, Santana
claims that the District Court erred by enhancing his sentence for distribution in proximity
to a school. We consider each issue in turn, and discuss the applicable standards of
review therein.
A. Apprendi
The applicability of Apprendi is a question over which this court exercises
plenary review. United States v. Williams, 235 F.3d 858, 861 (3d Cir. 2000). Santana
alleges his sentence violates Apprendi because the quantity of drugs attributed to him at
sentencing (3000 to 10,000 kg) exceeded the amount indicated in the indictment (1000
kg). We will affirm the District Court’s holding that there is no Apprendi violation.
The Supreme Court in Apprendi held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
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maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S.
at 490. Because Santana’s 210-month sentence does not exceed the statutory maximum
of life available for at least one of the counts to which he pleaded guilty, 1 we conclude, as
did the District Court, that Apprendi is not implicated.
B. Burdens at Sentencing Hearing
We exercise plenary review over questions of law related to the District
Court’s application of the Sentencing Guidelines. United States v. James, 78 F.3d 851,
855 (3d Cir. 1996).
The District Court determined facts relevant to sentencing using a
preponderance of the evidence standard. According to Santana, because the Court
applied enhancements amounting to four offense levels, the standard should have been
stepped up to beyond a reasonable doubt. Santana mistakenly analogizes to United States
v. Kikumura, where this court required use of a clear and convincing evidence standard.
918 F.2d 1084, 1089 (3d Cir. 1990) (holding that a higher standard was warranted where
the District Court increased the sentence from a range of 27-33 months to 360 months, the
largest departure from an applicable guideline range, in absolute or percentage terms,
since the Guidelines became effective). The much smaller increase applied to Santana
(from base level of 34 to total offense level of 35) does not raise the concerns voiced in
1 The charge of conspiracy to distribute marijuana within 1000 feet of a school, 21
U.S.C. § 846, to which Santana pleaded guilty, carries a penalty of ten years to life. 21
U.S.C. § 841(b)(1)(A)(vii).
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Kikumura. See United States v. Mack, 229 F.3d 226, 234 (3d Cir. 2000) (refusing to
apply Kikumura’s heightened standard except in “similarly extreme upward departures”);
see also Kikumura, 918 F.2d at 1101-02 (citing a list of cases recognizing the general rule
is to apply a preponderance of the evidence standard).
C. Enhancement for Proximity to a School
We exercise plenary review over questions of law related to the District
Court’s application of the Sentencing Guidelines. James, 78 F.3d at 855. Over questions
of fact, the standard of review is clear error, with due deference to the District Court’s
application of the Guidelines to the facts. United States v. Thomas, 327 F.3d 253, 255 (3d
Cir. 2003).
The District Court applied a two-point enhancement to Santana’s sentence
under Sentencing Guideline § 2D1.2, for distribution in proximity to a school. Santana’s
argument that this enhancement was inappropriate seems to stem from his statement at the
sentencing hearing that he did not realize the Bailey Organization was operating in
proximity to a school. Santana’s knowledge, or lack thereof, does not defeat the
applicability of the two-point enhancement. See United States v. Rodriguez, 961 F.2d
1089, 1092-93 (3d Cir. 1992) (holding that mere possession within proximity to a school
was sufficient to apply enhancement; intent was immaterial).
III. CONCLUSION
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For the reasons set forth, we will affirm the 210-month sentence imposed by
the District Court.
_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge
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