United States v. Rueda

61 F. App'x 156

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 18, 2003
• Docket: Nos. 01-1435, 01-1469
• Status: Published

Opinion

OPINION

PER CURIAM.

Valerie Rueda and Victoria Swain appeal their sentences for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Both defendants were sentenced in the United States District Court for the Eastern District of Michigan on March 13, 2001.¹ They now appeal their Base Offense Levels under the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Swain also appeals the application of a 2-level enhancement for use of a dangerous weapon.

I.

A grand jury indicted Rueda for conspiracy to distribute cocaine and possession of cocaine base with intent to distribute. On September 6, 2000, Rueda entered into a Rule 11 plea agreement in which she entered a plea of guilty to one count of intent to distribute cocaine. All other counts were dismissed pursuant to the plea agreement. On March 13, 2001, the district court sentenced Rueda to seventy (70) months imprisonment and three years of supervised release.²

The same indictment charged Swain with four counts of distribution of cocaine and one count of conspiracy to distribute cocaine. A superseding indictment later charged Swain with possession of a firearm in furtherance of drug trafficking. On September 19, 2000, Swain entered into a written plea agreement and pled guilty to three counts of the indictment. The remaining counts were dismissed.

In November 2000, the U.S. Probation Office issued a Presentence Investigation Report (“PSR”) recommending Swain be sentenced to 262-327 months imprisonment.³ Swain raised two objections to the PSR: (1) objection to the amount of drugs attributed to her, and (2) objection to an Offense Level enhancement for use of a dangerous weapon. During the sentencing hearing, the parties stipulated inter alia (1) the Base Offense Level for Swain would be set at 32, and (2) Swain would receive the 2-level enhancement for possession of a firearm. Swain was then sentenced to 108 months imprisonment, the minimum in her sentencing range.⁴

II.

Both Defendants allege on appeal that their sentences violated due process under Apprendi and United States v. Ramirez, 242 F.3d 348 (6th Cir.2001)⁵ because the district court used larger drug quantities to formulate their sentences than the amount of drugs involved in the individual counts to which they pled guilty. They assert that calculating their drug quantities in this manner essentially sentenced them based on crimes for which they were not convicted.

Each Defendant stipulated to her Base Offense Level but now claims the level was so improper it was plain error for the district court to assess it. We disagree. In view of the stipulations to the final Base Offense Levels, we review for plain error. United States v. Stafford, 258 F.3d 465, 470 (6th Cir.2001), cert. denied, 535 U.S. 1006, 122 S.Ct. 1581, 152 L.Ed.2d 500 (2002).

We find no plain error with the district court. Rueda and Swain’s argument that their sentences were unconstitutional under Apprendi is misplaced. Both women pled guilty to cocaine trafficking counts with no specified drug quantity. The statutory maximum for a cocaine trafficking offense where no amount is alleged in the indictment is twenty years. 21 U.S.C. § 841(b)(1)(C). Apprendi only applies where the final sentence goes beyond the statutory maximum for the convicted offense. Neither Rueda nor Swain were sentenced beyond the statutory maximum of twenty years.

Accordingly, we find that the Defendants’ stipulated Base Offense Levels did not violate due process under Apprendi. The Base Offense Levels for both Defendants are hereby affirmed.

III.

Swain also asserts that the district court erred in assessing her with a 2-level enhancement for utilizing a handgun as part of a drug trafficking offense. Although she originally objected to the 2-level enhancement in the PSR, Swain later stipulated to its application as part of her plea. The Government argues this stipulation bars appellate review. We agree.

In light of the stipulation as to enhancement, we find nothing arbitrary about the court’s application of the enhancement.

IV.

The sentencing of both Valerie Rueda and Victoria Swain is hereby AFFIRMED.

1 . The Honorable Victoria A. Roberts, United States District Judge for the Eastern District of Michigan.

2 . Rueda was sentenced with a Total Offense Level of 27 and a Criminal History Category of I. The applicable Guidelines range was 70 to 87 months.

3 . A sentencing range of 262-327 months would have assessed Swain with a Total Offense Level of 39 and a Criminal History Categoiy of I.

4 . Following a 3-level reduction for acceptance of responsibility, Swain’s final sentencing range was formed with a Total Offense Level of 31 and a Criminal History Category of I.

5 . Defendant Rueda argues her sentence violated Ramirez because it imposed a mandatory minimum sentence without submitting the question of drug quantity to a jury. Ramirez was overruled by this circuit in United States v. Leachman, 309 F.3d 377 (6th Cir.2002). Leachman was handed down in October of 2002, several months after briefs were filed in the present cases. In Leachman, the court followed the United States Supreme Court's ruling in Harris v. United States, which found that the rights prescribed in Apprendi apply only when a sentencing factor extends a defendant’s sentence beyond the statutory maximum and not to those factors that increase the statutory mandatory minimum. Leachman, 309 F.3d at 378 (citing Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)). Leachman also expressly overruled Gibson v. United States, 271 F.3d 247 (6th Cir.2001) and United States v. Strayhorn, 250 F.3d 462 (6th Cir.2001), two additional cases used by the Defendants to support their Apprendi arguments.