United States v. Buitron

147 F. App'x 143
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 1, 2005
DocketNo. 05-10364; D.C. Docket No. 04-00072-CR-WS
StatusPublished

This text of 147 F. App'x 143 (United States v. Buitron) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Buitron, 147 F. App'x 143 (11th Cir. 2005).

Opinion

PER CURIAM.

Ricardo Buitrón appeals his 21-month sentence for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). In the district court, Buitrón objected, based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to the drug quantity calculation used in sentencing him. On appeal, Buitrón raises issues pursuant to United States v. Booker, 543 U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). After de novo review, we vacate Buitron’s sentence and remand for resentencing.

I. BACKGROUND

A. Plea Colloquy

Buitrón entered into a written plea agreement in which he pled guilty to possession with intent to distribute 32 pounds of marijuana. Attached to the plea agreement was a factual resume in which Buitrón admitted that on April 9, 2004, he knowingly possessed with intent to distribute 32 pounds of marijuana during a reverse-sting transaction. Thirty-two pounds of marijuana equals 14.5 kilograms.

Buitrón also admitted that he previously had purchased marijuana from co-defendant Gilberto Ledesma. For the purposes of Buitron’s plea, the government and Bui[145]*145tron did not reach an agreement regarding the exact amount of marijuana involved in the previous transactions with Ledesma.

B. PSI and Sentencing

The Presentence Investigation Report (“PSI”) recommended a base offense level of 18, based on a drug quantity of 28.12 kilograms of marijuana, which equals 61.99 pounds. This amount included the 32 pounds (or 14.9 kilograms) admitted to in the plea agreement. The additional 29.99 pounds of marijuana above what Buitrón admitted to in his plea agreement was based on the previous transactions where Buitrón purchased marijuana from co-defendant Ledesma. The PSI also recommended a three-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. With a total offense level of 15 and a criminal history category of II, Buitron’s Guidelines range was 21-27 months’ imprisonment.

Buitrón objected to the PSI, arguing that his co-defendant Ledesma had made conflicting statements to investigators regarding the amount of marijuana that Ledesma had sold to Buitrón, and that therefore, the information obtained from Ledesma could not be used in determining Buitron’s relevant conduct. Buitrón also asserted that the government must prove beyond a reasonable doubt the amount of marijuana purchased from Ledesma, pursuant to Blakely.

During the sentencing hearing, Buitrón renewed his objection to the drug-quantity calculation, arguing that, even under “the pre-Blakely standard,” Ledesma’s statements were not “reliable hearsay.” Buitrón maintained that, at most, he should be held accountable for 40 pounds of marijuana, based on the 30 pounds he possessed at the time of his arrest and 10 additional pounds that “would come in through his testimony.”1

The government then called Baldwin County Sheriff Deputy Paul Johnson to testify regarding drug quantity. Johnson testified that after Ledesma agreed to cooperate with the government, Ledesma arranged the reverse-sting operation, involving approximately 32 pounds of marijuana, which resulted in Buitron’s arrest. Deputy Johnson also testified that during an interview, Ledesma stated that he had sold 38 pounds of marijuana to Buitrón during three prior transactions in 2003.

Buitrón testified that he did not purchase any marijuana from Ledesma in 2003. Instead, he claimed that he sold Ledesma a truck in 2003 in exchange for 10 pounds of marijuana, which he never received.2 Buitrón also admitted that he received 10 pounds of marijuana from Ledesma in 2002. Further, on cross-examination, Buitrón admitted that he purchased 10 pounds of marijuana from Ledesma in 2001. Thus, in total, Buitrón admitted to purchasing 52 pounds, or 23.5872 kilograms, of marijuana from Ledesma — that is 32 pounds from the reverse-sting operation, 10 pounds in 2002, and 10 pounds in 2001.3

The district court determined that Buitron’s base offense level was 18, which corresponds to a drug quantity between 20 and 40 kilograms of marijuana. The district court then adopted the PSI’s Guidelines calculations. Buitron’s attorney asked that the district court sentence Buitrón to probation. The government asked [146]*146that the defendant be sentenced at the low end of the Guidelines range. The district court adopted the government’s recommendation and sentenced Buitrón to 21 months’ imprisonment, which was the low end of the Guidelines range. In doing so, the district court noted:

Whether Blakely applies in this case or not, we don’t know yet. Perhaps it does. If it does, there may be some later adjustment for those figures. I don’t know. But based on the standards that I have to apply at this time, I find that Mr. Buitrón possessed with intent to distribute in excess of 44 pounds, or 20 grams (sic), placing him in a range of — a Base Offense Level of 18.

The district court then stated that Buitron’s attorney “ha[d] made a strong plea for something less than what [this Court is] obligated under the law to give [Buitrón].” The district court further stated that “[f]or the reasons I’ve already set forth, though, that plea is not convincing.” Further, the district court also concluded that based on the findings it had made, “the punishment in this case [ ] demands that [Buitrón] be incarcerated and that the low end of that incarceration is 21 months.” Thus, while the record indicates that the district court clearly rejected probation in favor of incarceration, there is some indication the district court may have considered a different amount of incarceration if Blakely applied to the Guidelines.

II. DISCUSSION

On appeal, Buitrón argues that the district court violated his Sixth Amendment rights by sentencing him based upon a drug quantity that he did not admit and by sentencing him under a mandatory Guidelines scheme.

Because Buitrón timely raised a Blakely objection in the district court, we review his Blakely, now Booker, claim de novo. United States v. Paz, 405 F.3d 946, 948 (11th Cir.2005) (citation omitted).

In Booker, the Supreme Court held that Blakely applied to the Sentencing Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert. denied, — U.S. -, 125 S.Ct. 2935, — L.Ed.2d - (2005). “Under Booker, there are two kinds of sentencing errors: one is constitutional and the other is statutory.” United States v. Dacus, 408 F.3d 686, 688 (11th Cir.2005). “[T]he Sixth Amendment right to trial by jury is violated where under a mandatory guidelines system a sentence is increased because of an enhancement based on facts found by the judge that were neither admitted by the defendant nor found by the jury.” Rodriguez, 398 F.3d at 1298 (emphasis omitted).

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Related

United States v. Terrance Shelton
400 F.3d 1325 (Eleventh Circuit, 2005)
United States v. Juan Paz
405 F.3d 946 (Eleventh Circuit, 2005)
United States v. Philip Wayne Mathenia
409 F.3d 1289 (Eleventh Circuit, 2005)
United States v. Timmy Davis
407 F.3d 1269 (Eleventh Circuit, 2005)
United States v. Larry Thomas Dacus
408 F.3d 686 (Eleventh Circuit, 2005)
United States v. Charles Crawford, Jr.
407 F.3d 1174 (Eleventh Circuit, 2005)
Blakely v. Washington
542 U.S. 296 (Supreme Court, 2004)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
United States v. Rodriguez
398 F.3d 1291 (Eleventh Circuit, 2005)

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Bluebook (online)
147 F. App'x 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-buitron-ca11-2005.