United States v. Ponce

51 F.3d 820
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 27, 1995
DocketNos. 93-50734, 93-50748, 94-50075, 94-50181, and 94-50293
StatusPublished
Cited by173 cases

This text of 51 F.3d 820 (United States v. Ponce) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Ponce, 51 F.3d 820 (9th Cir. 1995).

Opinion

PER CURIAM:

Ponce, McTague, and Monroy appeal their sentences imposed on remand after this court vacated their original sentences for conspiracy and possession of cocaine with intent to distribute. Anchondo and Castillon appeal their convictions following a trial on similar charges. Castillon also appeals his sentence.

BACKGROUND

On September 28, 1989, law enforcement agents executed a search warrant on a warehouse located in Sylmar, California. Inside, the agents found cardboard boxes containing approximately 21.4 tons of cocaine. With a street value of $6.9 billion, it was the largest known cocaine seizure in world history.

Subsequent investigation revealed that Carlos Tapia Ponce, James McTague, and others began transporting large quantities of marijuana from El Paso to Dallas in 1983. The organization moved into the cocaine distribution business around 1985. The cocaine was flown by the Medellin cartel from Colombia to Chihuahua, Mexico, and then stored in Juarez, Mexico.

The organization had on its payroll several American employees who worked at the El Paso border crossing. With their assistance, the cocaine was trucked into the United States, where it was stored at several El Paso locations. From El Paso, the cocaine was hidden in secret compartments of tractor-trailers and shipped in multi-ton deliveries to the Sylmar warehouse near Los Ange-les. The organization then sold the cocaine to various customers and sent the proceeds to Colombia.

Authorities estimate that the organization moved over 250 tons of cocaine between 1987 and 1989. Ledgers seized at the warehouse indicate that during the three-month period from June to September 1989, the Sylmar warehouse received 77 tons of cocaine and handled over $81 million in cash.

The organization was highly sophisticated and well equipped. In addition to maintaining border checkpoint surveillance, the organization used technically advanced anti-eavesdropping equipment, mail drops, pagers and cellular phones, and coded ledgers and communications.

Ponce was the patriarch of the family smuggling business and oversaw its general operation. He recruited his two sons, Hector Tapia Anchondo and Carlos Tapia Anchondo, as well as his sons-in-law McTague and Mauricio Monroy, and the organization’s principal driver, Gilbert Mendoza. Ponce managed the El Paso side of the business, while McTa-gue ran the Los Angeles operation.

Ponce, McTague, and Monroy were tried and convicted on all counts in a seven-week trial that ended in November 1990. The district court sentenced Ponce and McTague to life imprisonment. Monroy received a 420-month sentence. We affirmed the convictions, but vacated the sentences and remanded for resentencing. On remand, the district court again sentenced Ponce and McTague to life imprisonment. Monroy was sentenced to 405 months in custody. All three again appeal their sentences.

Hugo Castillon and Hector Tapia Anchon-do were tried together in late 1992 and convicted on all counts. Anchondo was sentenced to 365 months imprisonment; Castil-lon received 327 months. Both appeal their convictions. Castillon also appeals his sentence.

DISCUSSION

I. Ponce, McTague, and Monroy

On April 1,1993, we vacated Ponce, McTa-gue, and Monroy’s original sentences in a memorandum disposition on the ground that the district court had improperly departed upward for the quantity of drugs involved. United States v. Ponce, 990 F.2d 1264 (9th Cir.1993). Following United States v. Martinez, 946 F.2d 100 (9th Cir.1991), we held that the upward departures were improper because the base offense level already reflected the quantity of drugs. We remanded for resentencing.

Prior to the November 1989 amendments to the Guidelines, the largest cocaine quantity recognized for sentencing purposes was 50 or more kilograms. U.S.S.G. § 2D1.1 (1988). With a base offense level of 36, neither Ponce and McTague’s life sentences nor Monroy’s [826]*826405-month sentence were available without upward departures. The district court clearly felt that the Guidelines’ ranges were too lenient under the circumstances and departed upward on several grounds. Ponce, MeTague, and Monroy challenge each of the district court’s upward departures.

A. Scope of the Resentencing Proceedings

Ponce and MeTague argue that the district court was bound by its earlier criminal history category and role-in-the-offense determinations. Similarly, Monroy contends that the de novo resentencing violated his due process and double jeopardy protections.

Where a sentence exceeds the district court’s authority, our practice is to vacate the entire sentence and remand for re-sentencing. United States v. Caterino, 29 F.3d 1390, 1395-96 (9th Cir.1994); see also United States v. Pimentel, 34 F.3d 799, 800 (9th Cir.1994). Subsequent appellate panels “presume that this general practice was followed unless there is clear evidence to the contrary.” Caterino, 29 F.3d at 1395. On remand, the district court may consider any matter relevant to the sentencing. Id. (citing United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (resentencing on remand is de novo)). A district court may not, however, begin anew following a limited remand. Caterino, 29 F.3d at 1394. The propriety of the district court’s de novo sentencings on remand therefore turns on whether “the district court’s authority was abridged by any express or implied limits in the remand order.” Id.

The critical language in the memorandum disposition reads: “Martinez compels us to vacate the sentences, because the district court erred in departing from the guidelines based on the quantity of drugs involved. Defendants’ sentences should be recalculated accordingly. AFFIRMED, except that the SENTENCES are VACATED AND REMANDED.” Had the court sought to limit the scope of the district court’s authority on remand, it could easily have done so. Instead, the court stated that the sentences were to be “recalculated.” This language does not amount to “clear evidence” of a limited remand. Caterino, 29 F.3d at 1395. The district court did not err in resentencing Ponce and MeTague without regard to its previous determinations.

Monroy contends that the resentencing violated the Double Jeopardy Clause. This argument was rejected in Caterino. “[A] prisoner ‘has no legitimate expectation of finality in the original sentence when he has placed those sentences in issue by direct appeal and has not completed serving a valid sentence.’ ” Id. at 1397 (quoting United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir.1987)).

Monroy also asserts a due process argument. In the context of resentencing, the Due Process Clause prohibits courts from: (1) increasing a sentence as punishment for pursuing a successful appeal; or (2) refusing to credit a defendant for time served pursuant to the original conviction or sentence. See generally North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

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Bluebook (online)
51 F.3d 820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ponce-ca9-1995.