United States v. Gomez, Rosemary , 431 F.3d 818 ( 2005 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2005 Decided December 13, 2005
No. 04-3063
UNITED STATES OF AMERICA,
APPELLEE
v.
ROSEMARY E. GOMEZ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 90cr00189-01)
Paul Y. Kiyonaga argued the cause and filed the briefs for
appellant.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S.
Attorney at the time the brief was filed, and Thomas J. Tourish,
Jr., Assistant U.S. Attorney.
Before: ROGERS and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
2
WILLIAMS, Senior Circuit Judge: Rosemary Gomez was
convicted of four counts involving distribution of, or possession
with intent to distribute, cocaine base (in this case, crack
cocaine), plus one count of failure to appear before a court as
required by conditions of release, see 18 U.S.C. §§ 3146(a)(1)
and 3146(b)(1)(A)(i). Under counts three and four, conviction--
and the substantive issue before us--required involvement with
five or more grams of crack, see 21 U.S.C. §§ 841(a)(1);
841(b)(1)(B)(iii); 860(a), and in practice turned on whether the
government showed Gomez to have been in constructive
possession of a substantial stash of crack located in the closet of
the apartment where she was arrested.
Here, Gomez argues that there was insufficient evidence for
a rational jury to find that she possessed more than five grams of
crack, and she accordingly asks this court to set aside the
convictions premised on that amount. We reject Gomez’s
argument and affirm those convictions. She also contends that
her sentence constitutes plain error in light of United States v.
Booker, 125 S. Ct. 738 (2005). We agree and therefore vacate
the sentence and remand for resentencing.
* * *
As always with a defendant’s claims of insufficient
evidence, we review de novo, viewing the evidence in the light
most favorable to the government. We affirm if a rational fact-
finder could have found guilt beyond a reasonable doubt.
United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002).
According to the government’s evidence, Officer Best of
the Metropolitan Police Department (“MPD”), acting
undercover, knocked at the door of a D.C. apartment at about
8:30 on a spring evening in 1990. The door opened, and inside
3
Best saw Gomez, as well as two men, Pena and Medina. Best
held out two $20 bills and one $10 bill. He asked for “two
twenties,” meaning, as he later testified, two $20 rocks of crack
cocaine. In response, Pena said, “mira, mira” (look, look), at
which point Gomez walked toward Best and reached into her bra
to pull out a plastic bag. From the bag, Gomez handed Best two
rocks of crack, and Best gave her the two $20 bills. Medina then
asked Best to buy yet another rock. Best handed the $10 bill to
Medina, at which point Gomez reached into her plastic bag
again and gave Best another rock of crack. Best then left the
apartment.
Five or ten minutes later, several MPD officers announced
themselves at the door of the apartment and, receiving no
answer, forced their way in. Gomez ran out of the front room
and into the bedroom, where she threw down a purse she had
been carrying. The purse contained the three bills, totaling $50,
that Best had used minutes earlier to make his purchase, plus
another $283 in cash. Officer Lawrence searched Gomez and
found that her bra contained a plastic bag, which, in turn,
contained three rocks of crack.
The crack that Gomez sold to Best, plus the amount
Lawrence recovered from the plastic bag on her person, came to
less than five grams. The government presented no other
evidence of Gomez’s actual possession of crack. But in
searching the apartment the officers discovered, on the floor of
the bedroom closet, a second plastic bag of crack, containing
well over five grams. (Also in the closet were a boot and a film
canister that each contained small amounts of crack.) The key
question is whether the evidence supports the government’s
claim that Gomez was in constructive possession of the stash in
the plastic bag on the closet floor.
4
Conviction on the basis of constructive possession requires
evidence of the defendant’s “ability to exercise knowing
dominion and control over the items in question.” Wahl, 290
F.3d at 376 (citations and internal quotation marks omitted).
Where drugs are found in a place occupied by more than one
person, the evidence must support a belief that “the accused had
a substantial voice vis-à-vis” the drugs, United States v. Staten,
581 F.2d 878, 884 (D.C. Cir. 1978), or, equivalently, “some
appreciable ability to guide [the drugs’] destiny,” id. at 883. Of
special relevance here, a defendant’s “proximity to contraband,
combined with evidence linking the accused to an ongoing
criminal operation of which . . . possession of the contraband is
a part, may support a finding of constructive possession.” In re
Sealed Case, 105 F.3d 1460, 1464 (D.C. Cir. 1997) (citations,
internal quotation marks, and brackets omitted). While some of
our cases hold that constructive possession may be proven by
types of evidence other than Sealed Case’s combination of
proximity to contraband and a link to a criminal operation, e.g.,
United States v. Richardson, 161 F.3d 728, 732 (D.C. Cir.
1998), no such case purports to establish an exclusive test.
Here the evidence showed both features mentioned in
Sealed Case. First, there was close proximity between Gomez
and the closet stash: the apartment was small, consisting of only
a combined living room/kitchen, a bedroom, a hallway, and a
bathroom. Second, there was evidence to link Gomez to the
broader operation. The government presented overwhelming
evidence that Gomez sold the kind of drug of which the stash
consisted, and did so in the very apartment where the stash was
located and in the presence of confederates. It also offered
evidence suggesting reason to believe that what she sold may
have come from the stash itself. The government’s expert
testified that the stash included one large rock and that crack
dealers commonly chip small pieces from such a large rock in
order to make sales. The jury could rationally draw a link
5
between this testimony and the small rocks that Gomez kept on
her person. Gomez’s actual possession of $333 further suggests
involvement in a larger enterprise. Finally, besides the natural
inferences from Gomez’s apparently feeling comfortable selling
crack in the apartment in the presence of other occupant-
confederates, there was evidence that her link to the apartment
was more than casual. The officers found ten photographs of
Gomez on top of the stereo in the living room (although they
were not framed and there was no evidence that they were taken
in the apartment).
Gomez draws our attention to the facts of Staten, in which
we upheld a finding that the defendant, whom police discovered
in an apartment, constructively possessed all drugs in the
apartment, even though many of them were tucked away in an
envelope atop a kitchen cabinet, in the pockets of coats hanging
in a closet, and in a plastic bottle on a closet shelf. 581 F.2d at
881. Gomez contends that the evidence in her case is weaker
than in Staten. That may be so in some respects, especially the
defendant’s connection to the apartment: Staten had a key (but
to only one of the two entrance locks) and had left his ID on a
closet shelf (though it was unclear whether this was the shelf on
which drugs were sitting). Id. at 881 & n.27, 885. But the direct
evidence of Staten’s participation in a related drug-dealing
enterprise seems weaker than for Gomez. Staten had on his
person $165 and a distribution quantity of heroin, though heroin
was only one of three types of drugs found in the apartment. Id.
at 881-82, 883. He made no sale in the apartment, much less a
sale in the presence of others.
Another case upholding conviction, United States v. Thorne,
997 F.2d 1504 (D.C. Cir. 1993), relates to our facts the same
way (stronger on the defendant’s link to the place, weaker on the
link to a criminal enterprise). There we upheld a finding that
defendant Ian Thorne constructively possessed a stash of crack
6
in a bag on the floor of a house’s bedroom closet. Thorne lived
in the room part of the time, though apparently sharing it with
several others. Id. at 1507 n.4, 1510, 1511-12. But Thorne’s
link to crack-dealing was not as tight as Gomez’s. From the
front steps of the house he was seen speaking with one Haynes,
who then walked to a nearby park and sold crack to an
undercover officer; soon afterward Thorne pointed someone in
the direction of that park. Id. at 1507, 1511-12. Thorne owned
a beeper and had on him $190. Id.Apart from Staten, Gomez relies particularly on three cases,
each of which is either distinguishable or irrelevant. The first is
United States v. Foster, 783 F.2d 1087 (D.C. Cir. 1986), in
which we invalidated a finding of constructive possession where
the “only evidence . . . to link the appellant to the shotgun was
testimony that the appellant was near the location of the shotgun
[i.e., behind a store counter] just prior to its being discovered,
that he was in that location for an unspecified amount of time
once a week, and that he had another gun on his person.” Id. at
1089. Foster emphasized that the defendant’s possession of the
other gun was not shown to be unlawful and therefore (in
contrast to Gomez’s crack dealing) showed no link to a criminal
enterprise. Id. at 1090-91.
The second is Sealed Case, in which we rejected a finding
of constructive possession of a gun--a finding that would have
disqualified defendant for the “safety valve” available to drug
offenders of little culpability. 105 F.3d at 1463-65. The
defendant sat in a restaurant for the duration of a drug deal,
while his co-conspirator conducted the actual exchange outside
the restaurant; the gun remained under the driver’s seat of the
co-conspirator’s car the whole time. Id. at 1461. There was no
evidence that the defendant traveled to the restaurant in his co-
conspirator’s car, id. at 1465, nor apparently that he entered the
car afterward, given that the two men were arrested as soon as
7
the sale was over, id. at 1461. The opinion emphasized two
factors distinct from Gomez’s case: (1) there was nothing to
suggest that the defendant was “anywhere near the gun
immediately prior to the sale”; and (2) the government was
trying to use a defendant’s participation in drug distribution to
support constructive possession not of a drug, but of a gun,
which we said it couldn’t do without more evidence. Id. at
1464, 1464-65.
Finally, Gomez invokes United States v. Jenkins, 981 F.2d
1281 (D.C. Cir. 1992), but mainly to refute the government’s
assertion that Gomez’s flight in the direction of the bedroom
closet indicated her knowledge of the location of the stash—an
assertion on which we don’t rely.
Accordingly, we find the evidence sufficient to support the
challenged convictions.
* * *
The district court, sentencing Gomez in April 2004, treated
the U.S. Sentencing Guidelines as mandatory. In January 2005
the Supreme Court held in Booker that under the Sixth
Amendment “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” 125 S. Ct. at 756. As a remedy the
Court effectively nullified the U.S. Code provisions that
rendered the Guidelines mandatory. Id. at 764.
Gomez now asks us to vacate her sentence as a violation of
Booker and to remand for resentencing. Because she didn’t raise
this issue below, we review her claim for plain error under
Federal Rule of Criminal Procedure 52(b). Under this rule,
8
“there must be (1) error, (2) that is plain, and (3) that affects
substantial rights”; if “all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” United States v.
Coles, 403 F.3d 764, 767 (D.C. Cir. 2005) (citations, internal
quotation marks, and brackets omitted). Under Coles, any case
where a district court has sentenced a defendant under the
assumption that the Guidelines are mandatory meets the first and
second conditions automatically and meets the fourth whenever
the third--prejudice to substantial rights--exists. Id. Here, then,
the only question is whether Gomez’s sentence fulfills the third
condition, i.e., whether the error “affects substantial rights.”
Long before Booker, we held that an appellant seeking to
show that an error in the sentencing context has “affect[ed]
substantial rights” must demonstrate “a reasonable likelihood
that the sentencing court’s obvious errors affected his sentence.”
United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994); see
also United States v. Williams, 358 F.3d 956, 966 (D.C. Cir.
2004); cf. United States v. Dominguez Benitez, 124 S. Ct. 2333,
2340 (2004) (“a defendant who seeks reversal of his conviction
after a guilty plea, on the ground that the district court
committed plain error under [Federal Rule of Criminal
Procedure] 11, must show a reasonable probability that, but for
the error, he would not have entered the plea”). The standard of
“reasonable likelihood” is somewhat more relaxed in the area of
sentencing than it is for trial errors, since “a resentencing is
nowhere near as costly or as chancy an event as a trial.” Saro,
24 F.3d at 288; see also Williams, 358 F.3d at 966.
In deciding whether the appellant fulfilled the third
condition of the plain-error test, Coles did not discuss the Saro
standard of “reasonable likelihood.” Coles, 403 F.3d at 767-71.
Instead, Coles stated that there would be some cases in which
9
the appellate court would be “confident” that the sentence would
not have been lower even if the district judge had known the
Guidelines were advisory, in which case the sentence should be
affirmed. Id. at 769 (citing United States v. Smith, 401 F.3d 497,
499 (D.C. Cir. 2005)). Coles added that there would also be
cases in which the appellate court would be “confident” that the
sentence would have been lower, e.g., if the district judge
“indicated on the record that, but for the Guidelines, she would
have imposed a lower sentence.” 403 F.3d at 769. (The opinion
did not explicitly say what should be done in such cases, but a
full resentencing remand is surely implied.) As to the case
before it, Coles concluded that the record was not “sufficient”
for it to “determine prejudice with any confidence.” Id. It
therefore remanded the record to the district court “for the
limited purpose of allowing it to determine whether it would
have imposed a different sentence, materially more favorable to
the defendant, had it been fully aware of the post-Booker
sentencing regime.” Id. at 771. As to the procedure of this
limited remand, we adopted the Seventh Circuit’s view in
United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005),
that the defendant’s presence was unnecessary but that the
district judge should obtain the views of counsel on both sides.
Coles, 403 F.3d at 770. If the district judge concluded that she
would have given a lower sentence, the appellate court would
then vacate the sentence, id., clearing the way for full
resentencing.
Nothing Coles said appeared to displace our standard rule
that a defendant is entitled to a sentencing remand on a showing
of a “reasonable likelihood” that the sentence would be lower
absent the trial court’s plain error. A case could be made,
however, that the device Coles created, a purely informational
remand of the record, represents a useful innovation that could
replace a full sentencing remand in those cases where, though
there is a “reasonable likelihood” of a lower sentence with
10
correction of the Booker error, the appellate court isn’t
“confident” of such a reduction.
Even apart from the demands of stare decisis, LaShawn A.
v. Barry, 87 F.3d 1389, 1393, 1395 (D.C. Cir. 1996) (en banc),
however, we believe that a full resentencing remand continues
to be preferable where there is a “reasonable likelihood” of a
sentence reduction. The alternative approach, using a Coles
remand both in cases where the chance of a reduction is simply
unknown, and in cases where a reduction is “reasonably likely,”
will sometimes, when viewed ex post, prove more speedy and
efficient--namely, in those instances where the district court
ultimately makes clear its intent to keep the sentence unchanged.
In all other instances, viewed ex post, preserving the standard
“reasonable likelihood” remand will be more speedy and
efficient, because the district court will turn straight to lowering
the sentence in one proceeding without any intermediate trip to
the district court, back to the court of appeals, and back to the
district court. Of course we cannot know the ultimate outcomes
ex ante, so we have to apply a rule that seems on balance the
most effective and fair to the parties. We think, in the end, that
enough of the “reasonable likelihood” cases will in fact generate
a sentence reduction to make that approach preferable overall.
A further advantage of adhering to the standard “reasonable
likelihood” remand is that it reduces the risk of a wrongful
extension of a defendant’s prison time where the ultimate
lowered sentence would have been completed before completion
of the process of limited and then full remand.
We take a moment to consider the practice of the three other
circuits that have adopted a limited-remand procedure for
Booker error. United States v. Ameline, 409 F.3d 1073, 1078
(9th Cir. 2005) (en banc); Paladino, 401 F.3d at 483-84; United
11
States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The Ninth
Circuit has said that “reasonable probability” is the standard for
showing prejudice in Booker plain-error cases, Ameline, 409
F.3d at 1078, but its reported Booker-remedy cases seem to
remand for full resentencing only when the appellate court “can
reliably determine from the record that the sentence imposed
would have differed materially.” United States v. Labrada-
Bustamante, No. 04-30082, slip op. at 15274 (9th Cir. Nov. 10,
2005). The Seventh Circuit’s standard for whether to grant such
a remand is clearly higher than “reasonable likelihood”; it says
that the “normal remedy in this circuit for [Booker error] is a
limited remand,” but “[w]e can skip the limited remand if we are
highly confident that the judge would have imposed a different
sentence.” United States v. Pittman, 411 F.3d 813, 817-18 (7th
Cir. 2005) (emphasis added). In only one reported case, where
the district court had been quite explicit in the initial sentencing
about its intent if freed of the Guidelines, has an appellant
passed this test. United States v. Coney, 407 F.3d 871, 876 (7th
Cir. 2005). The Second Circuit sets forth no explicit standard
for showing prejudice in Booker plain-error cases, Crosby; see
also United States v. Williams, 399 F.3d 450 (2d Cir. 2005), and
its reported Booker-remedy cases have never seriously
considered granting an immediate remand for full resentencing,
perhaps because appellants have not pressed the argument.1 To
the extent that our approach departs from these circuits’, we do
1
The Ninth Circuit remands for full resentencing in a case
where the original district judge is unavailable. United States v.
Sanders, 421 F.3d 1044, 1052 (9th Cir. 2005). See also United States
v. Garcia, 413 F.3d 201, 231-32 (2d Cir. 2005) (Calabresi, J.,
concurring) (arguing, in a case where the original district judge was
unavailable, that the remand procedure fashioned by the majority was
functionally equivalent to a remand for full resentencing, contrary to
the majority’s assertion).
12
so for the reasons of stare decisis and judicial economy
explained above.
To summarize, in a Booker plain-error case: (1) if the record
establishes a reasonable likelihood that the sentence would have
been lower, we remand for full resentencing; (2) if the record
makes us confident that the sentence would not have been lower,
we affirm; and (3) if neither of the above, we grant a limited
remand.
In the present case, the record establishes a reasonable
likelihood that the district judge would have given Gomez a
lower sentence had he known that the Guidelines were not
mandatory.
As is typical under the Guidelines, the sentencing was quite
complex. The amount of crack involved in each of the four drug
offenses yielded an offense level of 26, see U.S.S.G.
§ 2D1.1(c)(9);2 for two counts (two and four), the fact that
Gomez’s activities were within 1000 feet of a school, see 21
U.S.C. § 860(a), increased the level by two, U.S.S.G.
§ 2D1.2(a)(1), bringing it up to 28. The district court evidently
applied the Guidelines’ grouping provisions and used the level
for the worst offense in the group, i.e., 28, as a combined offense
level. See id. §§ 3D1.1-5. From this, the court subtracted two
on the ground that Gomez was a minor participant in the crime.
Id. § 3B1.2(b). This yielded a level of 26, for which the range,
given Gomez’s criminal history category of I, was 63-78
months. Further, in reliance on United States v. Smith, 27 F.3d
649 (D.C. Cir. 1994), the district judge granted a downward
departure of 10% of the sentence (i.e., six months), on the
2
The district court relied, and so do we, on the Guidelines
manual that became effective Nov. 1, 1989.
13
ground that Gomez’s status as a deportable alien would
undeservedly increase the severity of her punishment. This
reduction, he noted, was the “maximum as I read Smith that I
can allow at this time based upon the length of the sentence.”3
This resulted in sentences of 57 months for each drug count, to
be served concurrently, and the judge expressed his intent to
“give the minimum sentence that’s required by the guidelines in
this case.” Finally, the court added one month for the failure to
appear, which by law had to run consecutively with the other
sentences.
The district judge also considered a motion for a downward
departure under 18 U.S.C. § 3553(b)(1) for factors not
adequately taken into account by the Guidelines. See Koon v.
United States, 518 U.S. 81, 92-96 (1996). One of several factors
raised by Gomez was her vulnerability to abuse in prison. The
district judge rejected this as a basis of departure, citing United
States v. Graham, 83 F.3d 1466, 1480-81 (D.C. Cir. 1996),
which held that a departure was warranted only in the case of
“extreme vulnerability,” which the district court found Gomez
had not shown. Gomez raised several other factors, which the
district judge discussed at some length and accepted as true: that
she had a difficult childhood, “no formal education,” a “strong
employment history,” no criminal history before or after the
offenses of which she was convicted, a “fragile . . . emotional
and mental state that has developed since her incarceration,” and
a “physical condition that’s deteriorated” (including surgeries).
He then asserted that the Guidelines barred him from
considering these factors: “While it’s tragic and sad, it does not
3
The government did not contest the court’s grant of a Smith
departure below the five-year statutory minimum. See 21 U.S.C.
§ 841(b)(1)(B). Nor in this appeal has the government raised the issue
of the statutory minimum with respect either to a Smith departure or
to Booker discretion.
14
raise to a level that was not adequately considered by the
guidelines.” He explained that the Guidelines took account of
the factors raised, “and I don’t see any individual one or a
combination thereof raising it to a level of taking it outside the
guidelines.” If Booker’s rendering the Guidelines discretionary
means anything, it must give a district judge greater latitude on
these issues than did Koon.
Throughout the hearing, the district judge focused almost
exclusively on the hardship to Gomez. Despite the prosecutor’s
vigorous condemnation of Gomez’s failure to accept
responsibility, the district judge never mentioned this issue,
except in passing, as a bar to a departure on that basis. Indeed,
the only criticism that he made of Gomez was to note briefly
that “the evidence was strong that you were engaged in a
distribution scheme even though you had children with you in
your home.” The district judge said he would request that
Gomez be sent to a prison where she could be near her family
and receive proper medical care. Most pointedly, he
“recognize[d]” that Gomez was “subject to deportation and
would be separated from her family permanently if this [i.e.,
deportation] happens.” Upon telling Gomez that she would
likely be deported, he added, “I don’t know any way to stop
that.” His concern for Gomez’s hardship appears to have been
his reason for stating that this was “a very difficult sentencing”
and that “sentencings of this type are always very difficult.”
To counter the inference that the district court’s
discretionary sentence would be lower, the government cites In
re Sealed Case, 199 F.3d 488, 490-91 (D.C. Cir. 1999), where
we observed that a sentencing court’s expressions of a
preference to give a sentence below the Guidelines range should
not be read as demonstrating an unawareness of authority to
depart from the Guidelines. But that, of course, is a quite
15
different inquiry from our present one--whether, if subject to the
Guidelines only on a discretionary basis, the court would be
reasonably likely to give a lower sentence.
The record as a whole--particularly the district judge’s
imposition of minimum sentences (with the minor exception of
the one-month sentence for failure to appear), his references to
the Guidelines’ mandatory constraints (particularly as bars to
downward departures), and his focus on the defendant’s
hardship to the near exclusion of her culpability--establishes a
reasonable likelihood that he would have imposed a lower
sentence had he known the Guidelines were not mandatory.
* * *
The challenged convictions are affirmed. The sentence is
vacated and the case is remanded for resentencing.
So ordered.