United States v. Joseph Franklin Calva

979 F.2d 119, 1992 U.S. App. LEXIS 27945
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 29, 1992
Docket91-3739
StatusPublished
Cited by56 cases

This text of 979 F.2d 119 (United States v. Joseph Franklin Calva) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Joseph Franklin Calva, 979 F.2d 119, 1992 U.S. App. LEXIS 27945 (8th Cir. 1992).

Opinions

MAGILL, Circuit Judge.

Joseph F. Calva appeals his sentence after pleading guilty to distributing cocaine, operating an illegal gambling enterprise, and money laundering. Since we find that Calva’s constitutional challenges to the Sentencing Guidelines are precluded by this court’s prior holdings, and that his other claims are without merit, we affirm.

I.

Calva pleaded guilty to a three-count indictment, charging him with: (1) distribution of cocaine, in violation of 21 U.S.C. § 841 (1988); (2) conducting an illegal gambling operation involving five or more persons, in violation ' of 18 U.S.C. § 1955 (1988);1 and (3) acceptance of United States currency which was represented to be the proceeds of the sale of a controlled substance, in violation of 18 U.S.C. § 1956(a)(3) (1988). The district court2 sentenced Calva to thirty-six months imprisonment.3

[121]*121The indictment charged Calva with a single drug distribution count for selling two ounces of cocaine to an undercover government informant. Nevertheless, the government alleged for sentencing purposes that Calva distributed 34Vs ounces of cocaine.4 The government specifically alleged that a witness purchased 24 ounces of cocaine from Calva during a period ending in June of 1990. During that same period and up until January 24, 1991, the government made twelve additional purchases from Cal-va totalling 10% ounces. During one of these undercover buys, a confidential informant purchased two ounces of cocaine from Calva. At the instruction of the government, the informant told Calva before the sale that the purchase money was the product of the illegal sale of other drugs. This transaction accounted for the cocaine distribution and money-laundering charges in the indictment.

Calva challenges his sentence on several grounds. First, he argues the inclusion of an additional 32Vs ounces of cocaine — as uncharged relevant conduct — to the amount of drugs named in the indictment violates the Fifth and Sixth Amendments to the Constitution. Second, he argues that the United States Sentencing Commission exceeded its statutory authority in promulgating the uncharged relevant conduct provision in U.S.S.G. § lB1.3(a)(2). Third, he argues the government violated his due process rights by continuing to make cocaine purchases from him in order to increase his sentence. Finally, he argues that the government' committed sentencing entrapment when the informant told Calva that the money the informant used to purchase the cocaine came from an illegal drug transaction.

A. Constitutionality of § lB1.3(a)(2) The United States Sentencing Guidelines provide that in determining the base offense level, the court shall group “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(2). The background note to this section provides, “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” U.S.S.G. § 1B1,3(a)(2) background note.

Calva contends the inclusion of uncharged drug quantities in the computation of his sentence violates his constitutional rights to indictment, jury trial, and confrontation under the Fifth and Sixth Amendments to the Constitution. We find that Calva’s constitutional claims are controlled by two recent en banc decisions of this court.

First, in United States v. Galloway, 976 F.2d 414, 425 (8th Cir.1992) (en banc), we held that sentencing enhancement based on uncharged relevant conduct that is proven by a preponderance of the evidence does not violate constitutional rights to indictment, jury trial, and proof beyond a reasonable doubt. We based our decision on the Supreme Court’s opinion in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which held constitutional a Pennsylvania statute providing for a mandatory minimum sentence of five years imprisonment whenever the sentencing judge finds, by a preponderance of the evidence, that the person “visibly possessed a firearm” during the commission of certain specified offenses. Like the Supreme Court in McMillan, we drew a distinction between the rights enjoyed by criminal defendants at the guilt and sentencing phases of their case.

[122]*122[T]he Sentencing Guidelines do not create separate offenses with separate penalties. The Guidelines operate only at the sentencing stage, after the accused has been afforded the full panoply of constitutional protections and found guilty beyond a reasonable doubt. The Guidelines are a direct reflection of the bifurcated nature of our criminal process, which separates trial and conviction from sentencing.

Galloway, 976 F.2d at 424. Because the full panoply of constitutional rights no longer attaches after a defendant has been adjudged guilty, the imposition of sentencing factors based on proof by a preponderance of the evidence does not violate the constitution. Id. at 425. See also United States v. Wise, 976 F.2d 393, 400 (8th Cir.1992) (en banc); United States v. Mobley, 956 F.2d 450, 455 (3d Cir.1992); United States v. Restrepo, 946 F.2d 654, 661 (9th Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 1564, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992).

Second, Calva’s claim that a sentence enhancement for uncharged relevant conduct under U.S.S.G. § lB1.3(a)(2) violates his right to confront witnesses is controlled by our recent en banc decision in Wise, 976 F.2d at 400. In Wise, we held that the right to confront witnesses does not attach at the sentencing phase. We found that the guidelines did not alter the pre-guidelines sentencing policy that a criminal defendant had no right to confront witnesses at the sentencing phase of his trial. Id. Therefore, we conclude that the uncharged relevant conduct provisions of the Sentencing Guidelines do not violate Calva’s constitutional rights to indictment, jury trial, and confrontation.

We noted in Galloway that sentences imposed based on sentencing factors other than the charged offense may violate due process if the resulting sentence overwhelms or is extremely disproportionate to the punishment that would otherwise be imposed. Galloway, 976 F.2d at 426. See also Wise, 976 F.2d at 401 (legislature may not impose sentencing factors that become “a tail which wags the dog of the substantive offense”) (quoting McMillan, 477 U.S. at 87-88, 106 S.Ct. at 2416-17); Restrepo, 946 F.2d at 659-60. We found in Galloway,

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

Related

United States v. Buck Otto White
816 F.3d 976 (Eighth Circuit, 2016)
United States v. Derrick Chappelle
591 F. App'x 71 (Third Circuit, 2015)
United States v. Booker
639 F.3d 1115 (Eighth Circuit, 2011)
Flowers v. City of Minneapolis, Minn.
558 F.3d 794 (Eighth Circuit, 2009)
United States v. Yvonne Garth
Eighth Circuit, 2008
United States v. Garth
540 F.3d 766 (Eighth Circuit, 2008)
United States v. Stratievsky
430 F. Supp. 2d 819 (N.D. Illinois, 2006)
United States v. Truong Mai Vo
Eighth Circuit, 2005
United States v. Scull
321 F.3d 1270 (Tenth Circuit, 2003)
United States v. Lora
129 F. Supp. 2d 77 (D. Massachusetts, 2001)
United States v. Adrian F. Searcy
233 F.3d 1096 (Eighth Circuit, 2000)
United States v. Delaine F. Berg
178 F.3d 976 (Eighth Circuit, 1999)
No. 98-2468
178 F.3d 976 (Eighth Circuit, 1999)
State v. Rael
1999 NMCA 068 (New Mexico Court of Appeals, 1999)
United States v. Robert John Michael Baber
161 F.3d 531 (Eighth Circuit, 1998)
United States v. Cambrelen
29 F. Supp. 2d 120 (E.D. New York, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
979 F.2d 119, 1992 U.S. App. LEXIS 27945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-franklin-calva-ca8-1992.