United States v. Winkelman , 180 F. App'x 397 ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-18-2006
    USA v. Winkelman
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 03-4500
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    "USA v. Winkelman" (2006). 2006 Decisions. Paper 1096.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1096
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 03-4500
    UNITED STATES OF AMERICA
    vs.
    GEORGE A. WINKELMAN
    George Winkelman,
    Appellant
    (D.C. Criminal No. 01-cr-00304-8)
    No. 03-4753
    UNITED STATES OF AMERICA
    vs.
    JOHN F. WINKELMAN, JR.,
    Appellant
    (D.C. Criminal No. 01-cr-00304-9)
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    District Judge: The Honorable James F. McClure, Jr.
    Submitted Under Third Circuit LAR 34.1(a)
    April 28, 2006
    Before: SCIRICA, Chief Judge, and NYGAARD, Circuit Judge,
    and ALARCON,* Circuit Judge.
    (Filed: May 18, 2006)
    OPINION OF THE COURT
    NYGAARD, Circuit Judge.
    Appellants, George and John Winkelman, appeal their convictions and sentences
    on numerous weapons and narcotics charges. We will affirm the conviction of George
    Winkelman, 03-4500, but vacate his sentence and remand his case to the District Court
    for resentencing under United States v. Booker, 
    463 U.S. 220
    (2005) and United States v.
    Cooper, 
    437 F.3d 324
    (3d Cir. 2006). We will affirm both the conviction and sentence of
    John Winkelman, 03-4753.
    I.
    After trial, a jury returned a verdict of guilty against both George and John
    Winkelman for conspiracy to distribute cocaine and conspiracy to distribute five
    kilograms or more of cocaine and distribution of cocaine to persons less than 21 years of
    age, in violation of 21 U.S.C. §§ 846 and 859 respectively (count one). Both were also
    *Honorable Arthur L. Alarcon, Senior Circuit Judge for the Ninth Circuit Court of
    Appeals, sitting by designation.
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    found guilty of possession with intent to distribute 500 grams or more of cocaine, also in
    violation of 21 U.S.C. §§ 841(a) and (b)(1)(B)(ii) (count nine). John Winkelman was
    found guilty of substantive distribution, attempted distribution and possession with intent
    to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (counts two, three, four and
    eight), as well as carrying or using a firearm during and in relation to a drug trafficking
    crime, in violation of 18 U.S.C. §924(c)(1) (count thirteen). George Winkelman was
    found guilty of two counts of substantive distribution, attempted distribution and
    possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (counts
    five and eight), as well as two 18 U.S.C. § 924(c)(1) weapons violations (counts ten and
    twelve).1
    Over George Winkelman’s objections to his pre-sentence report, the trial judge
    sentenced him to an aggregate term of 720 months’ imprisonment: 360 months on counts
    one and nine and 240 months on counts five, all to be served concurrently; 60 months on
    count ten, to be served consecutively; and 300 months on count twelve to be served
    consecutively. Over objections to his pre-sentence report, particularly to the findings of
    drug quantities, leadership role in the offense and that he was a career offender because of
    his two prior felony drug trafficking convictions, John Winkelman was sentenced to an
    aggregate term of life imprisonment plus five years, consisting of concurrent life
    sentences on counts one and nine, 30 years each on counts two, three, four and eight, and
    1       Counts six and seven were withdrawn from the jury’s consideration and deleted
    from the indictment.
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    60 months on count thirteen to be served consecutively. Both filed timely notices of
    appeal. Their appeals were consolidated.
    Five issues are now before us: (1) whether the District Court erred by denying
    Appellants’ motions to dismiss the third superceding indictment on the grounds of
    prosecutorial vindictiveness; (2) whether the District Court’s deletion of the reference to a
    specific firearm in count twelve of the indictment charging George Winkelman with
    carrying, using or possessing a firearm in furtherance of a drug trafficking crime was an
    unlawful amendment of the indictment; (3) whether the District Court erred by engaging
    in impermissible judicial fact-finding as to John Winkelman’s two prior felony controlled
    substance convictions which in turn mandated his life sentence; (4) whether the District
    Court violated the Eight Amendment’s prohibition of cruel and unusual punishment when
    it sentenced John Winkelman to life in prison after it found that he was a career offender
    responsible for the distribution of at least fifteen kilograms of cocaine; and (5) whether
    the District Court’s judicial fact-finding as to the quantity of narcotics attributed to
    George Winkelman, his leadership role in the offense and his obstruction of justice
    unlawfully enhanced his sentence under United States v. Booker, 
    463 U.S. 220
    (2005).
    II.
    We first conclude that the District Court did not err when it denied Appellants’
    motions to dismiss the third superceding indictment on the grounds of prosecutorial
    misconduct. Appellants’ argument that the third superceding indictment was filed in
    4
    retaliation for their rejection of proposed guilty pleas is unsupported by the record. First,
    just because one event follows another does not necessarily suggest a causal connection
    between the two. “[T]he mere fact that a defendant refuses to plead guilty and forces the
    government to prove its case is insufficient to warrant a presumption that subsequent
    changes in the [indictment] are unjustified.” United States v. Goodwin, 
    457 U.S. 368
    ,
    382-83 (1982). Appellants argue that because prosecutors had sufficient information to
    charge them with trading weapons for narcotics as part of the general conspiracy charge
    in count one, that the charge should have been contained in one of the previous
    superceding indictment. However, prosecutors are permitted to make charging decisions,
    and the decision to exclude the illegal trading from the conspiracy count is entirely
    permissible. The prosecutor in this case declared before the Court that the entire trading
    scheme did not become clear until after substantial witness interrogation while preparing
    for trial. Even if the prosecutor possessed information on the trading scheme at the time
    the first and second superceding indictments were filed, there would be no presumption of
    vindictiveness because a prosecutor may charge a defendant with crimes bearing an
    increase in punishment in response to the defendant’s rejection of a negotiated guilty plea.
    “[J]ust as a prosecutor may forego legitimate charges already brought in an effort to save
    the time and expense of trial, [he] may [also] file additional charges if an initial
    expectation that a defendant would plead guilty to lesser charges proves unfounded.”
    
    Goodwin, 457 U.S. at 380
    (citing Bordenkircher v. Hayes, 
    434 U.S. 357
    , 362-65 (1978)).
    5
    Here, Appellants were given proposed plea deals after lengthy negotiations
    between counsel in which the prosecution informed defense counsel that both George and
    John Winkelman faced potentially significant weapons charges in addition to the
    narcotics charges. Trial was fast approaching. It had already been delayed because the
    trial judge had generously extended the time for Appellants’ to file various motions and
    responses and to hold hearings on those motions. After Appellants’ refused the
    negotiated plea agreements, and the judge rescheduled trial once again, prosecutors
    continued questioning witnesses and gathering further evidence to support the weapons
    for narcotics trading scheme. The grand jury then returned the third superceding
    indictment containing these additional charges, trial ensued and Appellants’ were
    convicted. Both were free to accept negotiated plea deals, as had their seven co-
    defendants, but chose otherwise. Appellants cannot convince us now that just because
    going to trial and challenging the additional charges, of which the jury found both guilty
    beyond a reasonable doubt, resulted in harsher punishment for them that they were
    vindictively prosecuted.
    III.
    We next conclude that the District Court did not err when it deleted the reference
    to a specific firearm in count twelve of the third superceding indictment, which charged
    George Winkelman with carrying, using or possessing a firearm in furtherance of a drug
    trafficking crime. This deletion did not amount to an impermissible amendment of the
    6
    indictment but was a mere variance from the indictment. See United States v.
    DeCavalcante, 
    440 F.2d 1264
    , 1270-71 (3d Cir. 1971) (describing the evolution of
    indictment by grand jury and the differences between an amendment and variance).
    We review a variance from the indictment for harmless error. See 
    DeCavalcante, 440 F.2d at 1271
    . Toward the end of the trial, the prosecution moved to strike as
    surplusage the reference to the Mossberg 12-gauge shotgun in count twelve as the
    weapon George Winkelman was alleged to have used, carried and possessed during his
    cocaine distribution activities in the fall of 2000. The District Court granted the motion
    over George Winkelman’s objections. As a result, the jury could convict George
    Winkelman of using, carrying or possessing any firearm in relation to drug trafficking
    during this period. George Winkelman was charged with three counts of violating 18
    U.S.C. § 924(c)(1) (counts ten, eleven and twelve), and fifteen different weapons were
    listed and alleged to have been used during the entire drug trafficking operation, from
    January 1986 to October 2001. The Court’s instructions to the jury did not reference any
    specific firearm in relation to any of the § 924(c)(1) charges, only that to be found guilty
    of using, carrying or possessing a firearm in relation to drug trafficking, the prosecution
    must prove beyond a reasonable doubt that the defendant actively employed the firearm,
    carried the firearm (such as transporting it by person or vehicle) and that defendant’s
    possession of the firearm furthered or advanced the drug trafficking operation. Therefore,
    no matter what firearm the jury found George Winkelman guilty of using, carrying or
    possessing, the statute forbidding it would have been violated, and he would have been
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    found – and was found – guilty on count twelve. We find no error. “The variance . . .
    added nothing new . . . and constituted no broadening” of the indictment. See United
    States v. Miller, 
    471 U.S. 130
    , 145 (1985).
    IV.
    We next decide that the District Judge did not commit plain error when he
    determined that John Winkelman was to be sentenced to life in prison because he had
    been twice convicted for drug trafficking felonies. First, the argument that a prior
    conviction must be found by a jury was explicitly rejected in both Almendarez-Torres v.
    United States, 
    523 U.S. 224
    , 244 (1998) (“to hold that the Constitution requires
    recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt
    departure from a longstanding tradition of treating recidivism as ‘go[ing] to the
    punishment only.’”), reh’g denied, 
    530 U.S. 1299
    (2000), and in Apprendi v. New Jersey,
    
    530 U.S. 466
    (2000) (“Other than the fact of a prior conviction, any fact that increases the
    penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
    and proved beyond a reasonable doubt.”). Booker did not affirmatively overrule the
    holding of either case. See 
    Ordaz, 398 F.3d at 241
    (quoting Rodriguez de Quijas v.
    Shearson/American Express, Inc. 
    490 U.S. 477
    , 484 (1989) (“If a precedent of this Court
    has direct application in a case, yet appears to rest on reasons rejected in some other line
    of decisions, the Court of Appeals should follow the case which directly controls, leaving
    to this Court the prerogative of overruling its own decisions.”)) Therefore, we hold that
    the District Judge permissibly found that John Winkelman had previously been twice
    8
    convicted of felony drug offenses and used this finding to sentence him to life in prison
    pursuant to 21 U.S.C. § 841(b)(1)(A).
    V.
    We next conclude that the District Court neither violated John Winkelman’s
    Eighth Amendment rights nor committed plain error when it sentenced him to life in
    prison, after finding that he was criminally responsible for distributing at least 15
    kilograms of cocaine and was a career offender. Because this issue was not raised in the
    District Court, we apply plain error review. When analyzing proportionality, we consider
    the seriousness of the offense, the magnitude of the penalty and the sentences imposed on
    other defendants for the same crime both within and without the jurisdiction. We also
    accord deference to the legislatures within whose broad authority rests the power to
    determine types of and limits on punishments for crimes. However, the Eighth
    Amendment protects only against punishments grossly disproportionate to the crime. See
    United States v. MacEwan, 
    2006 WL 861184
    , at *7 (3d Cir. 2006) (citing Ewing v.
    California, 
    538 U.S. 11
    , 30 (2003)). Therefore, if the defendant cannot show a “gross
    imbalance” between the sentence and the crime, we end our analysis. MacEwan 
    2006 WL 861184
    , at *7.
    John Winkelman has been twice convicted of felony drug offenses, has been
    convicted of the present offenses on appeal, including long-term drug trafficking as well
    as trading drugs for weapons, and has been convicted of trafficking in more than 15
    kilograms of cocaine. We cannot term “cruel and unusual” a sentence of life in prison for
    9
    a career drug trafficker who adamantly refuses to abide by our nation’s drug laws, despite
    prior convictions and punishment, and as a result of his voluntary choices, has landed
    back in prison. The District Court neither erred nor violated John Winkelman’s
    constitutional rights when imposing this sentence, and it will therefore be affirmed.
    VI.
    Lastly, we determine that the District Judge erred when he engaged in fact-finding
    regarding the quantity of drugs for which George Winkelman was responsible, his
    leadership role in the offense and his obstruction of justice. Because this issue was not
    raised in the District Court, we apply plain error review. The challenged judicial fact-
    finding at issue here violated the now-advisory federal sentencing scheme articulated in
    United States v. Booker, 
    463 U.S. 220
    (2005), and therefore, we find plain error. See
    United States v. Davis, 
    407 F.3d 162
    , 164 (3d Cir. 2005) (“In cases where a defendant’s
    sentence is enhanced based on facts neither admitted to nor found by a jury, the defendant
    can demonstrate plain error and may be entitled to resentencing.”) We will therefore
    vacate George Winkelman’s sentence and remand his case to the District Court for
    resentencing under Booker and our recent guidance as articulated in United States v.
    Cooper, 
    437 F.3d 324
    (3d Cir. 2006).
    VII.
    We will affirm the conviction of George Winkelman, 03-4500, but vacate his
    sentence and remand his case to the District Court for resentencing under United States v.
    10
    Booker, 
    463 U.S. 220
    (2005) and United States v. Cooper, 
    437 F.3d 324
    (3d Cir. 2006).
    We will affirm both the conviction and sentence of John Winkelman, 03-4753.
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