United States v. Rios-Quintero ( 2000 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-51084
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LUIS OBED RIOS-QUINTERO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
February 10, 2000
Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Luis Obed Rios-Quintero appeals his federal criminal
convictions on charges that he possessed heroin with the intent to
distribute the drug in violation of 21 U.S.C. § 841(a)(1) and that
he imported heroin in violation of 21 U.S.C. §§ 952(a) and
960(a)(1). On appeal, Rios-Quintero argues that his convictions
must be vacated because the district court treated the relevant
quantity of heroin as a sentencing factor, rather than an as
essential element of his drug trafficking offenses. The single
issue presented for review is whether, in light of the Supreme
Court’s recent decision in Jones v. United States, 119 S. Ct. 1215
(1999), this Court can or should deviate from existing precedent
treating drug quantity as a sentencing factor by holding that drug
quantity is an essential element of the offenses defined by §§ 841,
952, and 960.
The impact of Jones upon the federal drug offenses defined in
§§ 841, 952, and 960 is an important issue of first impression in
our Circuit. We are not, however, at liberty to give free-ranging
consideration to that issue in this appeal. Jones was decided
after Rios-Quintero was convicted and sentenced in the district
court, but before the briefs were filed in this Court. Given that
timing, Rios-Quintero’s Jones-based argument that drug quantity is
an essential element of his offenses that should have been charged
in his indictment, submitted to the jury, and proven beyond a
reasonable doubt, was not made in the district court. We are
therefore constrained to review the error identified by Rios-
Quintero for plain error only. See Johnson, 117 S. Ct. at 1549
(reviewing the district court’s failure to submit an essential
element of offense to the jury as mandated by the Supreme Court’s
intervening decision in United States v. Gaudin, 115 S. Ct. 2310
(1995) for plain error only). Under that standard, the Court does
not grant relief unless there is (1) error, (2) that is plain, and
(3) affects the defendant’s substantial rights. See United States
2
v. Johnson, 117 S. Ct. 1544, 1549 (1997). Even when those three
prerequisites are met, plain error should not be remedied unless
the Court determines that the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. See id.
Having concluded our plain error review, we hold that the
impact of Jones is not sufficiently obvious or clear to permit this
panel to deviate from thise Circuit’s existing precedent
characterizing drug quantity as a sentencing factor under §§ 841,
952, and 960. Stated simply, the error identified in this case is
not sufficiently plain to merit relief. See Johnson, 117 S. Ct. at
1549; United States v. Olano, 113 S. Ct. 1770, 1777 (1993); United
States v. Leonard, 157 F.3d 343, 345 (5th Cir. 1998) (error may not
be characterized as plain unless it is clear or obvious).
Moreover, even if such error were obvious or plain, the
circumstances of this case do not even potentially implicate any of
the constitutional concerns that gave rise to constitutional doubt
in Jones. See Jones, 119 S. Ct. at 1224 n.6 (placing emphasis on
fair notice of the charge, an adequately supported finding by the
relevant fact finder, and proof beyond a reasonable doubt). For
that reason, there is no risk that the error identified in this
case will affect the “fairness, integrity or public reputation of
judicial proceedings,” and relief is not warranted under our plain
error standard. See Johnson, 117 S. Ct. at 1549. We therefore
affirm.
3
BACKGROUND
Rios-Quintero was arrested at the Paso Del Norte Port of Entry
after more than one kilogram of heroin was found stitched into the
lining of clothing he was transporting as a passenger in a taxi
entering Texas from Mexico. Rios-Quintero was subsequently charged
in a two count indictment alleging in count 1 that he imported an
unspecified “quantity” of heroin, in violation of 21 U.S.C.
§§ 952(a) and 960(a)(1), and alleging in count 2 that he possessed
an unspecified “quantity” of heroin with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1). The government filed a Notice
of Enhanced Penalty with the indictment, stating its intent to seek
enhanced penalties because Rios-Quintero possessed more than one
kilogram of heroin.
At trial, Rios-Quintero’s defense was that he did not know
there was heroin stitched into the clothes he was carrying.
Specifically, Rios-Quintero claimed that he was carrying the
clothes, which contained heroin valued between $800,000 and
$900,000, to New York City for a stranger he met in a bar in Mexico
City.
Rios-Quintero did not dispute the quantity of heroin found.
Indeed, his attorney conceded the quantity of heroin at issue in
argument to the jury. Moreover, Rios-Quintero signed a joint
stipulation providing that more than one kilogram of heroin was
4
recovered from the clothes in his suitcase. That stipulation was
read to the jury at trial and then entered into the record as one
of the few exhibits submitted to the jury. The jury was instructed
on the statutory language as contained in §§ 841(a), 952(a), and
960(a), without reference to the quantity of heroin or the
quantity-based penalties provided in §§ 841(b) and 960(b). Rios-
Quintero did not object to the jury charge, and the jury eventually
convicted Rios-Quintero on both counts.
Rios-Quintero was sentenced on the basis of the ten year to
life range required by §§ 841(b)(1)(A) and 960(b)(1)(A) for
offenses involving at least one kilogram of heroin. Rios-
Quintero’s guideline range, based upon the same quantity, was 121-
151 months.1 The district court responded to Rios-Quintero’s plea
for leniency within the range by sentencing Rios-Quintero to two
121 month concurrent sentences, to be followed by five years of
supervised release. Rios-Quintero did not object to the quantity
determination of more than one kilogram, as listed in the
presentence report and used for sentencing. Rios-Quintero
thereafter filed a timely notice of appeal from his conviction and
sentence.
DISCUSSION
1
The presentence report used an offense level of 32 and a
criminal history category of I.
5
I.
Rios-Quintero maintains that his drug convictions must be
vacated because drug quantity is an essential element of his
offenses, which was not charged in the indictment, submitted to the
jury for decision, or proven beyond a reasonable doubt. Rios-
Quintero premises his argument upon a broad reading of the Supreme
Court’s recent decision in Jones V. United States, 119 S. Ct. 1215
(1999), in which the Supreme Court held that constitutional doubt
about certain provisions of the federal car-jacking statute, 18
U.S.C. § 2119, required that the provisions be construed as
creating three separate offenses rather than one offense subject to
three separate punishments. Id. at 1228. In reaching that
holding, the Jones Court stated the relevant constitutional
principle at issue as follows:
[U]nder the Due Process Clause of the Fifth
Amendment and the notice and jury trial guarantees
of the Sixth Amendment, any fact (other than
conviction) that increases the maximum penalty for
a crime must be charged in an indictment, submitted
to a jury, and proven beyond a reasonable doubt.
Id. at 1224 n.6. Drug quantity clearly increases both the minimum
and maximum statutory penalties defined by §§ 841(b) and 960(b).
Thus, Rios-Quintero argues that Jones sets forth a new rule
requiring that drug quantity be charged in his indictment,
submitted to his jury, and proven beyond a reasonable doubt.
The government interprets Jones quite narrowly, responding
6
that Jones merely addressed the parameters of an unresolved
constitutional issue, rather than announcing any new constitutional
rule which Rios-Quintero would be entitled to take advantage of in
this appeal. Indeed, the government maintains that no
constitutional lessons may be drawn from Jones at all, offering a
number of superficially persuasive quotes from the case. See
Jones, 119 S. Ct. at 1228 n.11 (“our decision today does not
announce any new principle of constitutional law, but merely
interprets a particular federal statute in light of a set of
constitutional concerns that have emerged through a series of our
decisions for the past quarter century”). In a related argument,
the government maintains that the relevant language in Jones is
dicta because the case was premised upon the doctrine of
constitutional doubt, not certainty, and therefore did not actually
resolve the thorny issues of constitutional law presented therein.
See id. at 1224 n.6 (“Because our prior cases suggest rather than
establish this principle, our concern about the Government’s
reading of the statute rises only to the level of doubt, not
certainty.”); id. at 1226 (diminution of the jury’s significance
raises genuine Sixth Amendment concerns that remain unresolved).
The government reinvents the same argument a third time to argue
that any lessons to be drawn from Jones must be applied only to the
car-jacking statute and no other. Given these fundamental
limitations on the holding in Jones, the government responds that
7
the effect of Jones is neither clear nor obvious enough to support
a determination of plain error in this case.
II.
Prior to Jones, this Court routinely held that drug quantity
is a sentencing factor that need not be included in the indictment,
submitted to the jury, or proven beyond a reasonable doubt. See,
e.g., United States v. Hare, 150 F.3d 419, 428 n.2 (5th Cir. 1998);
United States v. Cisneros, 112 F.3d 1272, 1282 (5th Cir. 1997);
United States v. Ruiz, 43 F.3d 985, 989 (5th Cir. 1995); United
States v. Montes, 976 F.2d 235 (5th Cir. 1982); United States v.
Royal, 972 F.2d 643, 650 (5th Cir. 1990); United States v. Brown,
887 F.2d 537, 540 (5th Cir. 1989). At least some of the reasoning
used to reject constitutional challenges to §§ 841, 952, or 960 in
those cases is consistent with and therefore probably remains
viable after the constitutional doubt analysis applied in Jones.
See, e.g., United States v. Morgan, 835 F.2d 79, 81 (5th Cir. 1987)
(citing legislative history for proposition that Congress did not
intend for quantity to be an element with respect to § 841
offenses). Indeed, several of our sister Circuits have relied upon
the continuing viability of pre-Jones precedent to hold that Jones
either will not support a finding of plain error or will not
support a finding of error at all when the defendant’s argument is
that drug quantity is an essential elements of conviction under
8
§§ 841, 952, and 960 that should have been charged in the
indictment and submitted as an essential element to the jury. See
United States v. Hester,__ F.3d __, 2000 WL 11751 (11th Cir. Jan.
7, 2000) (reaffirming pre-Jones precedent that drug quantity is a
sentencing factor under § 841); United States v. Jones, 194 F.3d
1178, 1185-86 (10th Cir. 1999) (concluding that Jones’ application
to § 841 is insufficiently clear to permit an abandonment of pre-
Jones precedent holding that quantity is a sentencing factor under
§ 841); United States v. Williams, 194 F.3d 100, 105-07 (D.C. Cir.
1999) (same); United States v. Talley, No. 99-4146, 1999 WL 1054151
*2 (4th Cir. Nov. 22, 1999) (unpublished) (absence of authority
applying Jones to § 841 negates premise that error arising from
failure to submit quantity as an essential element was plain
error); see also United States v. Bennett, 60 F. Supp. 2d 1318 (N.D.
Ga. 1999) (denying defendant’s motion to dismiss the indictment for
failure to allege drug quantity with respect to §§ 841 and 846
offenses); United States v. Magana, No. 98-C-1846, 1999 WL 691854
(N.D. Ill. Aug. 26, 1999) (unpublished) (denying § 2255 relief
sought on the basis, inter alia, that drug quantity is an essential
element of the federal drug offense defined in § 841).
Our Court has not yet examined the effect of Jones on the
federal drug offenses defined by 21 U.S.C. §§ 841, 952, and 960.
The Court has, however, applied Jones to arguments involving
different statutory provisions. See Bledsue v. Johnson, 188 F.3d
9
250 (5th Cir. 1999) (reading Jones broadly in dicta, but eventually
denying state habeas relief because the phrase “adulterants and
dilutants” was not an essential element under the state drug
statute at issue); United States v. Nunez, 180 F.3d 227 (5th Cir.
1999) (reading Jones broadly and holding that the constitutional
doubt underpinning Jones requires that 18 U.S.C. § 111(a), which
defines a substantive offense, and § 111(b) which provides for an
“[e]nhanced penalty,” be construed as setting forth two different
federal offenses); United States v. Castillo, 179 F.3d 321 (5th
Cir. 1999) (examining the structure of 18 U.S.C. § 924(c) and
concluding that “the type of weapon used or carried is a sentencing
enhancement, and not an element” of the offense), cert. granted,
120 S. Ct. 865 (2000); United States v. Matthews, 178 F.3d 295 (5th
Cir. 1999) (relying upon legislative history for the proposition
that Congress clearly intended for the enhanced penalty provided in
the applicable version of 18 U.S.C. § 521(b) and (d) to be a
sentencing enhancement provision rather than a separate federal
offense or essential element of a defined offense), cert. denied,
120 S. Ct. 359 (1999); see also Texas Office of Public Utility
Counsel v. F.C.C., 183 F.3d 393 (5th Cir. 1999) (citing Jones for
constitutional doubt doctrine in civil case), pet. for cert. filed,
(U.S. Dec. 23, 1999) (No. 99-1072). These cases provide some
insight into how broadly various panels of our Court have been
willing to construe Jones.
10
Clearly, this Court’s precedent does not limit Jones to the
car-jacking statute. In Nunez, the Court indicated its willingness
to derive broad constitutional lessons from Jones by stating that
“Jones teaches us to avoid encroaching on a defendant’s Fifth
Amendment rights by construing statutes setting out separate
punishments as creating separate, independent criminal offenses
rather than a single criminal offense with different punishments.”
Nunez, 180 F.3d at 233. In Bledsue, the one post-Jones Fifth
Circuit case involving a drug offense, the Court eventually denied
state habeas relief sought on the premise that the phrase
“adulterants and dilutants” was an essential element of the
offense. In broadly written dicta, however, the Court relied upon
Jones for the proposition that:
[T]he state would violate Bledsue’s Sixth Amendment
jury trial rights if it proved that he possessed
less than 28 grams, then convinced the court to
impose a heavier sentence based on a non-jury
finding that he possessed more than 28 grams. In
other words, because the amount of the controlled
substance possessed determines the severity of the
punishment, the amount possessed is a jury question
and an essential element under Jones and Jackson
[v. Johnson, 150 F.3d 520 (5th Cir. 1998), cert.
denied, 119 S. Ct. 1339 (1999)].
Bledsue, 1999 WL 675097 at *9 (emphasis added). If accepted
without qualification, the Bledsue dicta can be cited for the
proposition that drug quantity is an essential element in the
statutes at issue here. At a minimum, Bledsue, particularly when
paired with Nunez, demonstrates that the government’s attempt to
11
narrowly limit Jones to the factual confines of that case must be
rejected.
Nonetheless, and without regard to how these difficult
constitutional issues may ultimately be resolved in a case in which
error was preserved, we cannot conclude that the Supreme Court’s
identification of unresolved constitutional issues in Jones is
sufficiently plain or obvious with respect to its application to
the federal drug trafficking statutes to permit a finding of
remediable plain error in this case. Even if we were to conclude
that Jones gives rise to “grave doubt” about the constitutionality
of treating drug quantity as a sentencing factor, see Jones, 119 S.
Ct. at 1222, such doubt would not support a determination of
obvious or conspicuous error. Jones is simply too thin a reed upon
which to hang a wholesale abandonment of this Court’s pre-Jones
precedent in this case.
Of equal importance, Jones identified the constitutional
guarantees implicated when an essential element of an offense is
impermissibly treated as a sentencing factor. The Jones Court
placed an emphasis on (1) fair notice of the charge, (2) submission
to and a finding by the relevant fact finder, and (3) proof beyond
a reasonable doubt. See Jones, 119 S. Ct. at 1224 n.6. None of
those guarantees are implicated in this case. While the relevant
drug quantity was not charged in Rios-Quintero‘s indictment, the
indictment was filed with a Notice of Enhancement that listed the
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relevant drug quantity. Therefore, Rios-Quintero was provided
notice that the government intended to seek a penalty commensurate
with his possession and importation of more than one kilogram of
heroin.
In addition, Rios-Quintero stipulated that the offense
involved more than one kilogram of heroin and that evidence was
submitted to the jury. Rios-Quintero’s attorney conceded the
relevant quantity in argument before the jury. Thus, the issue of
quantity was undisputed. The undisputed and well-documented
quantity of heroin at issue, when combined with Rios-Quintero’s
stipulation and his concession at trial before the jury, is
adequate to support the proposition that the government met its
burden of proving quantity, without regard to which standard of
proof is applied. Similarly, the record evidence unequivocally
supports an affirmative jury finding on the issue of quantity. In
sum, Rios-Quintero cannot argue that he was prejudiced by the
government’s failure to submit an issue that was both uncontested
and conclusively established. See Johnson, 117 S. Ct. at 1550
(failure to submit essential element of offense to jury amounted to
plain error, but did not justify relief because the issue was both
uncontroverted and conclusively established at trial). None of the
constitutional guarantees identified by the Supreme Court in Jones
are implicated in this case. For that reason, the error identified
13
in this case does not affect the “fairness, integrity or public
reputation of judicial proceedings,” and relief is not warranted
under our plain error standard.
We hold only that Jones does not support a determination of
plain error in this case. We are not presented with and do not
decide the more complex issue of whether the Supreme Court’s
decision in Jones, that there are grave doubts about the
constitutionality of statutory language defining facts that
increase the maximum penalty as sentencing factors rather than
essential elements, should have any affect upon our pre-Jones
precedent construing 21 U.S.C. §§ 841, 952, and 960. Such a
contention would require a defendant’s inclusion of fair notice
arguments in a motion to quash an indictment that does not list
quantity, and a defendant’s objection at trial that quantity is an
essential element of conviction under these statutes. But such
contentions will certainly need to be presented to and preserved in
the district court before it may be properly considered by this
Court on appeal.
CONCLUSION
The district court is AFFIRMED.
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