United States v. Herrera

166 F. App'x 309
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 3, 2006
DocketNo. 03-2189
StatusPublished

This text of 166 F. App'x 309 (United States v. Herrera) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Herrera, 166 F. App'x 309 (10th Cir. 2006).

Opinion

ORDER ON REMAND FROM THE UNITED STATES SUPREME COURT

HENRY, United States Circuit Judge.

Juan Carlos Herrera contends that the district court committed plain constitutional Booker error when it adjusted his sentence for (1) possessing a weapon in connection with a drug trafficking crime under USSG 2Dl.l(b)(l)(2) and (2) for his role as an organizer, leader, manager, or supervisor of an illegal enterprise under USSG 3Bl.l(c). For the reasons stated herein, we affirm Mr. Herrera’s sentence.

I. BACKGROUND

A. Factual History

We recounted the facts previously in United States v. Herrera, 118 Fed.Appx. 448, 450 (10th Cir.2004) (unpublished) (“Herrera I ”), vacated and remanded, — U.S.-, 126 S.Ct. 103, 163 L.Ed.2d 32 (2005) {“Herrera //”):

This case arises out of an undercover agent’s purchase of crack cocaine (cocaine base) from Mr. Herrera at an Albuquerque apartment that police officers suspected to be the site of a drug trafficking operation. On December 13, 2001, the agent made a request to Mr. Herrera to purchase two ounces of crack cocaine. Mr. Herrera then instructed co-defendant Fidel Laroza to retrieve the drug. Mr. Laroza retrieved the drug from the front porch area and handed it to Mr. Herrera. Mr. Herrera then gave the drug to the agent and received $1,200 in return.
A second sale took place on January 15, 2002, when a confidential informant contacted Mr. Herrera’s brother, Julian Herrera, to negotiate the purchase of another $1,200 worth of crack cocaine. Later that day, an undercover agent arrived at the same apartment and met with Mr. Herrera, Mr. Laroza, and the third co-defendant, Magnolto Coll. Mr. Herrera asked the agent what he needed and then directed the agent to remain inside while he walked outside to [311]*311retrieve the crack cocaine. After revealing that he did not have enough cocaine at the apartment, Mr. Herrera signaled Mr. Coll to follow him, and the two left the apartment for an undisclosed location. When they returned, they sold the undercover agent approximately seventy-seven grams of crack cocaine.
On February 12, 2002, agents obtained a warrant to search the apartment that served as the site of the two previous sales. The search revealed a bag of marijuana and a .45 caliber revolver loaded with six rounds of ammunition, discovered behind two mattresses in one of the bedrooms. In the same bedroom, agents discovered documents belonging to Mr. Herrera and various drug paraphernalia. The agents arrested Mr. Herrera and the other two co-defendants at the time of the search.

118 Fed.Appx. at 449-50.

B. Procedural History

On March 13, 2002, a federal grand jury indicted Mr. Herrera and two co-defendants on one count of conspiracy to distribute more than fifty grams of a mixture and substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and two counts of distribution of more than fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A). Mr. Herrera pleaded guilty to all three counts and was sentenced to 135 months’ imprisonment.

Following Mr. Herrera’s plea, the probation officer prepared a presentence report (PSR). It recommended that Mr. Herrera receive (1) a two-level upward adjustment to his base offense level pursuant to USSG § 2Dl.l(b)(l) because a dangerous weapon was possessed during the drug trafficking offense, and (2) an additional two-level upward adjustment pursuant to USSG § 3B1.2 because he was an organizer, leader, manager, or supervisor in the instant offense. Based on those upward adjustments and a three-level downward adjustment for acceptance of responsibility, the PSR recommended an adjusted offense level of 33 and a criminal history category of I.

Mr. Herrera objected to these upward adjustments but not on the grounds of a Blakely Sixth Amendment violation. He argued that there was no evidence of his involvement in a drug conspiracy after January 15, 2002, and that the government presented no evidence that he was in fact a leader or organizer of anything in the drug deals. The district court overruled his objections and sentenced him to 135 months’ imprisonment, the low end of the guideline range.

In rejecting Mr. Herrera’s objection to the firearm enhancement pursuant to USSG § 2D1.1(b)(1), the district court acknowledged that the weapon was not found until one month after the final sale of cocaine in January 2002. However, the court noted, “this defendant has admitted to his participation in a conspiracy to distribute crack cocaine which encompassed his arrest.” Aplt’s App. vol. II, at 108 (Sentencing Hr’g, dated Aug. 11, 2003). In addition, the district court noted that the PSR indicated that on the day of Mr. Herrera’s arrest, “various drug paraphernalia was located in the same bedroom of the apartment where the revolver was found.” Id.

As to the leader/organizer adjustment under USSG 3Bl.l(c), the district court reviewed the offense reports and noted that “[t]he offense reports, as outlined in the [PSR], indicated that Mr. Herrera exercised control over [his] codefendants.” Id. The district court concluded that “[t]he conduct of [Mr. Herrera] during these transaction meets the requirement that would identify him as a leader/organizer,” [312]*312and overruled the objection. Id. at 109. The district court acknowledged that Mr. Herrera was not eligible for a safety valve reduction and stated that “[sjince the defendant admitted — and, of course, he did receive a three-level reduction for acceptance of responsibility, ... I do think a sentence on the low end of the guideline range is applicable.” Id. at 110. The district court sentenced Mr. Herrera to 135 months, the lowest possible sentence under the guidelines range.

On appeal, Mr. Herrera argued that the district court erred in accepting his guilty plea and sought to have the plea withdrawn or amended. In the alternative, he challenged the district court’s upward adjustments of his sentence for possession of a dangerous weapon in connection with a drug trafficking crime and for being an organizer, leader, manager, or supervisor of the criminal activity. Finally, in light of the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), he also argued that the district court committed plain error when it applied the same upward adjustments to his sentence.

We affirmed his conviction and sentence in all respects. See Herrera I, 118 Fed. Appx. at 454. Thereafter, Mr. Herrera filed a petition for a writ of certiorari in the United States Supreme Court, asserting that the sentence was erroneous pursuant to Blakely. During the pendency of the Supreme Court proceeding, the Court decided United States v. Booker, 543 U.S. 220

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Vonn
535 U.S. 55 (Supreme Court, 2002)
United States v. Cotton
535 U.S. 625 (Supreme Court, 2002)
Blakely v. Washington
542 U.S. 296 (Supreme Court, 2004)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
United States v. Keeling
235 F.3d 533 (Tenth Circuit, 2000)
United States v. Price
265 F.3d 1097 (Tenth Circuit, 2001)
United States v. Gonzalez-Edeza
359 F.3d 1246 (Tenth Circuit, 2004)
United States v. Herrera
118 F. App'x 448 (Tenth Circuit, 2004)
United States v. Gonzalez-Huerta
403 F.3d 727 (Tenth Circuit, 2005)
United States v. Dazey
403 F.3d 1147 (Tenth Circuit, 2005)
United States v. Lawrence
405 F.3d 888 (Tenth Circuit, 2005)
United States v. Clark
415 F.3d 1234 (Tenth Circuit, 2005)
United States v. Ken Roy Backas A/K/A James Smith
901 F.2d 1528 (Tenth Circuit, 1990)
United States v. James Easter, Jr.
981 F.2d 1549 (Tenth Circuit, 1992)
United States v. Andy Jardine
364 F.3d 1200 (Tenth Circuit, 2004)
United States v. Sergio Duran Badilla
383 F.3d 1137 (Tenth Circuit, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
166 F. App'x 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-herrera-ca10-2006.