United States v. Ortiz

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 6, 2002
• Docket: 01-20790
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20790 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

FRANCISCO ORTIZ

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-874-1 -------------------- September 4, 2002

Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Francisco Ortiz appeals his sentence for aiding and abetting

and conspiracy to possess with intent to distribute more than 500

grams of cocaine. Ortiz argues that: 1) the logic of Apprendi v.

New Jersey, 530 U.S. 466 (2000) should be extended to Guidelines

enhancements for drug quantity and firearm possession; 2) the

district court erred by including an additional drug quantity

calculated by converting seized cash into a drug equivalent;

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-20790 -2-

3) the district court miscalculated his criminal history score;

and 4) Apprendi has rendered 21 U.S.C. § 841(b) unconstitutional.

Ortiz argues that under Apprendi, the district court erred

in applying certain sentencing enhancements where the facts

underlying the enhancements were not charged in the indictment or

proven beyond a reasonable doubt. Ortiz acknowledges that he

raises this issue to preserve it for further review, and concedes

that this court’s precedent does not require that sentencing

factors be charged in the indictment and determined by a

factfinder beyond a reasonable doubt. See United States v.

Clinton, 256 F.3d 311, 314 (5th Cir.)(citation omitted), cert.

denied, 122 S.Ct. 492 (2001). We are bound by our prior

precedent on this point. See Hogue v. Johnson, 131 F.3d 466, 491

(5th Cir. 1997).

Ortiz argues that the district court erred by converting

seized cash into a drug equivalent and including that additional

quantity of cocaine as relevant conduct. He argues that before

making such a conversion, a district court must find that there

was no drug seizure or that the amount seized does not reflect

the scale of the offense. See § 2D1.1, comment. (n.12). The

district court satisfied the requirement that it make a finding

on every controverted matter by rejecting the defendant’s

objections and orally adopting the findings of the presentence

report. See United States v. Brown, 29 F.3d 953, 958 (5th Cir.

1994). We also conclude that there was an adequate evidentiary No. 01-20790 -3-

basis to find that the seized currency was drug-related; Ortiz

presented no rebuttal evidence, so the district court was free to

adopt the PSR’s findings without further inquiry. See United

States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).

Ortiz argues that courts have previously held that drug type

and quantity are sentencing factors, but that under Apprendi,

treating these as sentencing factors is unconstitutional.

Because courts cannot rewrite a statute to correct

unconstitutional provisions, he argues that the provisions of

§ 841 which determine the statutory maximum must be stricken as

unconstitutional. Ortiz acknowledges that he raises this issue

only to preserve it for further review, and that this argument is

foreclosed by our decision in United States v. Slaughter, 238

F.3d 580, 582 (5th Cir. 2000), cert. denied, 532 U.S. 1045

(2001).

Ortiz argues that the presentence report improperly assigned

two criminal history points for a prior sentence of imprisonment,

and that this error resulted in a higher Guidelines range. Prior

sentences are not counted if they were imposed more than 10 years

prior to the commencement of the instant offense. See § 4A1.1,

comment. (n. 2); see also § 4A1.2(e)(2), (3). The Government

concedes that the conviction should not have been included in

Ortiz’s criminal history score. If there was an erroneous

application of the guidelines, the party supporting the sentence

must demonstrate that the district court would have imposed the No. 01-20790 -4-

same sentence absent the error. United States v. Tello, 9 F.3d

1119, 1129 (5th Cir. 1993). However, the Government concedes

that the record is unclear on this point.

Therefore, we VACATE Ortiz’s sentence and REMAND this case

to the district for resentencing.