United States v. Rafael Morillo-Hidalgo

458 F. App'x 40

• Court: Court of Appeals for the Second Circuit
• Decided: January 30, 2012
• Docket: 11-1065-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant-appellant Rafael Morillo-Hi-dalgo (“Morillo-Hidalgo”) appeals from a judgment of conviction entered by the District Court on March 10, 2011, convicting him, following a jury trial, on two counts: (1) conspiracy to distribute and possess with the intent to distribute cocaine, and (2) attempting to distribute and possess with the intent to distribute cocaine, all in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1) and 846. With respect to both counts, the jury found that the quantity of cocaine involved was 500 grams or less. Although the Superseding Indictment alleged that the Count One conspiracy involved both cocaine and heroin, the jury found that heroin was not an object of the conspiracy. Morillo-Hidalgo was sentenced principally to 42 months of imprisonment. We assume the parties’ familiarity with the underlying facts and procedural history of this ease.

On appeal, Morillo-Hidalgo argues only that the District Court erred in considering acquitted conduct to calculate the advisory Guidelines range. As the defendant himself acknowledges, that argument is contrary to the current law of the Circuit. Before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the Double Jeopardy Clause permitted a sentencing judge to consider acquitted conduct, “so long as that conduct has been proved by a preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). In United States v. Vaughn, 430 F.3d 518 (2d Cir.2005), we concluded that Booker did not disturb the Watts decision, holding that:

district courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct, as long as the judge does not impose (1) a sentence in the belief that the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by the jury verdict, or (3) a mandatory minimum sentence ... not authorized by the verdict.

Id. at 527.

Because we are “ ‘bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court,’ ” European Community v. RJR Nabisco, Inc., 424 F.3d 175, 179 (2d Cir.2005) (quoting United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir.2004)), we reject the defendant’s challenge to the Vaughn decision and affirm the judgment of the District Court.

CONCLUSION

We reject all of the defendant’s claims on appeal. Accordingly, the judgment of the District Court is AFFIRMED.