Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2002

USA v. Velasquez
Precedential or Non-Precedential: Precedential

Docket No. 01-1599




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PRECEDENTIAL

       Filed September 20, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 01-1599 and 01-1820

UNITED STATES OF AMERICA,

v.

REYNALDO VELASQUEZ,
a/k/a REGGIE

Reynaldo Velasquez,

       Appellant/Cross-Appellee

APPEAL FROM THE   UNITED STATES DISTRICT COURT
FOR THE EASTERN   DISTRICT OF PENNSYLVANIA
(D.C. Crim. No.   99-cr-00066-1)
District Judge:   Honorable Edmund V. Ludwig

Argued July 16, 2002

Before: McKEE, WEIS, and DUHE,*
Circuit Judges.

(Filed: September 20, 2002)

       Paul J. Hetznecker, Esquire
        (ARGUED)
       1420 Walnut Street, Suit 911
       Philadelphia, PA 19102

       Attorney for Appellant/Cross-Appellee
_________________________________________________________________

*Honorable John M. Duhe, Jr., United States Circuit Judge for the
Fifth Circuit Court of Appeals, sitting by designation.




       Robert A. Zauzmer, Esquire
        (ARGUED)
        Assistant United States Attorney,
       Senior Appellate Counsel
       Patrick L. Meehan, Esquire
        United States Attorney
       Laurie Magid, Esquire
        Deputy United States Attorney for
       Policy and Appeals
       Kathy A. Stark, Esquire
        Assistant United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106-4476
       Attorneys for Appellee/Cross-
       Appellant

OPINION OF THE COURT

WEIS, Circuit Judge.

The defendant in this case was convicted of a drug
conspiracy and use of a telephone in connection with the
trafficking. We conclude that defendant’s assertions of trial
error lack merit and we will affirm the conviction. On the
government’s cross-appeal, we are persuaded that the
District Court did not abuse its discretion in imposing
concurrent rather than the consecutive sentences arguably
provided in the Sentencing Guidelines. Accordingly, we will
affirm the judgment.

A jury convicted the defendant on one charge of
conspiracy to distribute more than five kilograms of cocaine
in violation of 21 U.S.C. S 846 and one count of use of a
communications facility in violation of 21 U.S.C.S 843(b).
From 1996 through October 4, 1998, defendant worked for
a large-scale organization distributing cocaine at the corner
of 8th and Tioga Streets in Philadelphia, Pennsylvania.
Defendant kept the street-level dealers supplied with
packages for sale and collected the proceeds. He then
delivered the money to his immediate supervisor or the
head of the organization. Defendant earned between $500

                                2


and $600 per week for his efforts. In carrying out his
duties, he made more than 100 telephone calls to a pay
phone located at the corner of 8th and Tioga Streets.

At trial, three co-conspirators testified to the defendant’s
participation in the drug organization. Police surveillance
and recordings of the defendant’s telephone calls
corroborated that testimony to some extent. Defendant was
seen frequently driving a grey Oldsmobile automobile
registered in his name to the corner site. He also used the
automobile to travel to other locations connected with the
organization’s activities.

During presentation of the government’s case, an ATF
agent testified about intercepting the defendant’s telephone
calls, and described efforts to discover the defendant’s
pager number. Objections to portions of this testimony as
hearsay were sustained by the District Court. Using a chart
that had been prepared based on evidence presented at the
trial, the agent testified about the composition of the
organization and defendant’s position within the group.

After the jury had begun its deliberations, it sent a
question to the trial judge inquiring, inter alia, "is 50
kilograms of cocaine a significant part of the conspiracy? Is
it necessary to agree that 50 kilograms was sold to be guilty
of the conspiracy?" The judge then consulted with counsel.
Defendant’s lawyer argued that the question should be
answered in the affirmative because quantity was an
element of the offense. The prosecutor, however, contended
that the 50 kilograms was only a sentencing factor. The
judge then instructed the jury that quantity was not an
element required for conviction.

In performing preliminary calculations for Sentencing
Guideline purposes, the District Court held the defendant
responsible for 60 kilograms of cocaine because of his
involvement in the conspiracy. This estimation, together
with other enhancements, resulted in a Guideline range of
292 to 365 months.

However, after the Guideline computations were
determined but before sentence was imposed, the Supreme
Court decided Apprendi v. New Jersey, 

(2000), holding that the quantity of drugs in cases of this

                                3


nature must be submitted to and determined by a jury. The
trial judge, therefore, concluded that in light of Apprendi
the statutory maximum of 240 months set out in 21 U.S.C.
S 841(b)(1)(C), applied to the conspiracy conviction, rather
than the Guideline computation of 292-365 months. The
Court grouped the conspiracy with the communications
offense, denied the government’s request for consecutive
sentences totaling 288 months, and directed incarceration
for 240 months.1

The defendant has appealed his conviction and the
government has cross-appealed the sentence.

The defendant contests several evidentiary aspects of his
trial, the trial judge’s finding that the amount of cocaine
involved as to the defendant exceeded 50 kilograms, and
the trial judge’s failure to have the jury decide whether the
amount of cocaine was more than 50 kilograms.

Because the defendant made no objections in the District
Court, the plain error standard of Rule 52(b) governs. See
Fed. R. Crim. P. 52(b); Johnson v. United States , 

, 466-67 (1997); United States v. Adams, 

,
278-79 (3d Cir. 2001).

I.

We will first consider the challenges to the testimony of
the ATF agent based on the chart of the organization that
showed defendant as a member. The use of summaries and
charts is proper and may be put before a jury with limiting
instructions. United States v. Kapinson, 

,
1458 (10th Cir. 1984); United States v. Winn, 

,
157-59 (5th Cir. 1991) (summary/testimony charts are
admissible and Rule 1006 should not be interpreted
literally or restrictively as to the "voluminous document"
requirement).

As noted earlier, the chart was based on testimony that
had been introduced into evidence and the exhibit therefore
_________________________________________________________________

1. The maximum statutory sentence for the communications offense is
48 months. Adding the 240 months term for the conspiracy results in a
maximum statutory sentence of 288 months.

                                4


acted as a summary. 

; 

. Defendant did not object to the
introduction of this evidence and under the applicable plain
error standard, his challenge must be rejected. See Fed. R.
Crim. P. 52(b); 

; 

.

On cross-examination, the ATF agent stated that he had
not been able to determine the name of the subscriber of a
pager used by defendant. Having answered the precise
question put to him, the agent then added that an
employee of Express Paging, after studying a photograph,
said defendant had been inside that store. Although this
was hearsay, defendant did not move to strike the non-
responsive portion of the answer nor request a curative
instruction. In considering the totality of the evidence
properly admissible at trial, this gratuitous answer was
harmless and does not constitute grounds for reversal
under the plain error standard. See 

defendant did not object to evidence
obtained from the Pennsylvania Bureau of Motor Vehicles
demonstrating that he was the registered owner of the grey
Oldsmobile. Admission of that evidence does not constitute
plain error. See 

it plain error to admit material
obtained by wire-taps. See 

we find that the entry
of evidence from the pen-register, which was not objected to
at trial, constitutes reversible error under the plain error
standard. See 

challenges the District Court’s finding
that for Guideline purposes he be held responsible for
between 50 and 150 kilograms of cocaine. We are satisfied
that based on the evidence submitted covering the length of
time defendant served in the organization, his participation
in distribution, and the amount of cocaine sold, the
sentencing judge was within his authority to find the
amount involved exceeded 50 kilograms.

Defendant also raises an Apprendi challenge to the
Court’s failure to have the jury decide whether the amount
of cocaine was more than 50 kilograms. It is somewhat
curious that he raises that issue here. The judge’s refusal
to submit the quantity to the jury seems favorable to the

                                5


defendant because the ruling limited the possible maximum
sentence to a lower level than that which would have been
applicable if the jurors had found that the amount of
cocaine was in excess of 50 kilograms. We find no merit to
the defendant’s challenge.

In sum, we conclude that defendant has failed to
demonstrate reversible error and, consequently, his
conviction will be affirmed.

II.

Although the defendant has not mounted a strong case
contesting his conviction, the government in its cross-
appeal has presented a serious challenge to the sentence.
Succinctly, the government insists that the district judge
should have made the sentence for use of a
communications device consecutive, instead of concurrent.
Although the issue is straightforward, an analysis of its
resolution is somewhat complex involving, as it does, the
interplay between various provisions of the Sentencing
Reform Act and the Sentencing Guidelines.

Under the Guidelines, the first question that arises when
a defendant is convicted on a number of counts, is whether
they should be grouped. The introductory comment in Part
D of the Guidelines explains, "some convictions from a
multi-count indictment are so closely intertwined with each
other that increasing the Guideline range is not warranted.
. . . To prevent multiple punishment for substantially
identical offense conduct" multiple convictions should be
grouped. See U.S.S.G. ch. 3, pt. D, intro. comment.
"Convictions on multiple counts do not result in a sentence
enhancement unless they represent additional conduct that
is not otherwise accounted for by the Guidelines." 

defendant is convicted of only one count and the
computation under the Guidelines exceeds that of the
statutory maximum, then the statutory sentence is the
"Guideline Sentence." See 5G1.1. However, if a defendant is
sentenced on a number of counts (absent exceptions not
relevant here), "the sentence imposed on each other count
shall be the total punishment . . ." See 5G1.2.

                                6


Total punishment is calculated by combining the factors
in the relevant sections of the Guidelines without respect to
maximum statutory sentences. See 3D1.5. For example, if
a maximum sentence is 100 months for a particular crime,
but the guideline calculation for that offense, including
various enhancements, such as recidivism, is 120 months,
then the "total punishment" is 120 months.

According to the Guidelines, if the sentence for the count
carrying the highest statutory maximum is less than the
total punishment, then the sentence imposed on one or
more of the other counts shall run consecutively to the
extent necessary to make the final sentence "equal to the
total punishment." See 5G1.2(d). However, the final
sentence may not exceed the total of the maximum
sentences set by statute for each count. See 

general, the sentences shall run concurrently. See 

traditionally exercised discretion to impose
consecutive or concurrent sentences as required by the
facts of the case. Congress restricted this power somewhat
in the Sentencing Reform Act, but recognized that judges
still retain substantial discretion. The Act provides that "[i]f
multiple terms of imprisonment are imposed on a
defendant at the same time . . . the terms may run
concurrently or consecutively . . . ." 18 U.S.C.S 3584.
Generally, sentences imposed at the same time run
concurrently unless a statute mandates or the court orders
otherwise.

In considering whether terms are to be consecutive or
concurrent, 18 U.S.C. S 3584(b) requires the court to
consider factors set out in 18 U.S.C. S 3553(a). That
subsection lists matters traditionally used in sentencing
and also includes a reference to "the kinds of sentences and
the sentencing range established for the applicable category
of offense committed by the applicable category of
defendant as set forth in the guidelines issued by the
Sentencing Commission pursuant to section 994(a)(l) . . ."
18 U.S.C. S 3553(a)(4)(A).

In turn, 28 U.S.C. S 994(a)(l) instructs the Commission to
insure that its Guidelines reflect the appropriateness of
imposing an incremental penalty for each offense when "a

                                7


defendant is convicted of multiple offenses committed in the
same course of conduct that result in the exercise of
ancillary jurisdiction over one or more of the offenses . . . ."
28 U.S.C. S 994(l)(1)(A). The guidelines must also reflect
"the general inappropriateness of imposing consecutive
terms of imprisonment for an offense of conspiring to
commit an offense . . . and for an offense that was the sole
object of the conspiracy . . . ." 28 U.S.C. S 994(l)(2).

Section 994(a)(1)(D), however, also allows the
Commission to promulgate guidelines for determining
"whether multiple sentences to terms of imprisonment
should be ordered to run concurrently or consecutively
. . . ." 28 U.S.C. S 994(a)(1)(D).2

The combination of Guidelines and statutory provisions
has led to a substantial number of opinions by the Courts
of Appeals. Most of the appeals address situations where
the sentencing judge imposed a consecutive, rather than a
concurrent sentence. In many of these cases the practical
result was imprisonment in excess of the statutory
maximum for the principal offense. See, e.g., United States
v. Stewart, 

(5th Cir. 1999) (92 month
sentence imposed when the statutory maximum for the
principal offense was 60 months); United States v. Chase,

(4th Cir. 2002) (360 month sentence imposed
when the statutory maximum for the principal offense was
240 months). See also United States v. Feola, 

(2d Cir. 2001) (24 month sentence for bank fraud offense
was enhanced by conduct relevant to defendant’s tax
offense for which the statutory maximum sentence was 12
months); United States v. White, 

(2d Cir.
2001) (240 month sentence exceeded the statutory
maximum sentence for any one of the crimes of which the
defendant was convicted).
_________________________________________________________________

2. In United States v. Willis, 

, 826 (9th Cir. 1989), the Court
commented that "[a]lthough section 994(a)(1)(D) apparently would allow
the Commission to eliminate the discretion, section 994(b)(1) requires
that the Commission’s guidelines be consistent with the provisions of
Title 18, which include section 3584(a). If the guidelines are to be
consistent with Title 18, the discretion cannot be taken away." See also
United States v. Nottingham, 

, 395 (3d Cir. 1990); 28 U.S.C.
S 994(b)(1).

                                8


A number of the Courts of Appeals have concluded
essentially that the discretion allocated to the sentencing
judge by section 3584 is subservient to the provisions of
5G1.2. However, in affirming sentences at variance with the
Guidelines, these Courts have, in effect, implemented the
discretion granted by section 3584 by relying on the
departure power. See United States v. Quinones , 

(1st Cir. 1994) (upward departure because of excessive
brutality by defendant); United States v. Kings , 

(5th Cir. 1993) (offense level did not adequately
recognize seriousness of defendant’s conduct).

In cases involving a conflict between section 3584 and
5G1.2, a majority of the Courts of Appeals have favored the
Guidelines over the statutory grant of discretion. However,
in United States v. Vasquez-Zamora, 

, 214 (5th
Cir. 2001), the Court recognized that the District Court had
discretion to impose concurrent rather than consecutive
sentences.

In United States v. Rahman, 

, 156 (2d Cir.
1999), the Court considered the "tension" between section
3584 and 5G1.2, and conceded that sentences could run
concurrently, but were limited by the departure authority.
"Just as there is discretion to depart upward to impose
consecutive sentences where the guidelines call for
concurrency, we believe there is discretion to depart
downward to sentence concurrently where the guidelines
call for consecutive sentencing." 

.

There is often little, if any, discussion in the case law of
the fact that section 3584 recognizes the authority of the
sentencing judge to impose concurrent or consecutive
sentences without dependence on departure provisions in
the Guidelines. Traditionally, judges possessed this power
and because section 3584 restricts that authority, the
limitation on the court’s power should be carefully
scrutinized and narrowly applied.
It is curious that appellate courts in affirming
consecutive sentences in excess of that provided by the
Guideline in multi-count cases have chosen to justify the
result on departure grounds rather than forthrightly
recognizing the district judge’s right to do so under the

                                9


discretion implicit in section 3584. Some Courts have
stated flatly that sentencing judges "must" follow 5G1.2
and impose consecutive terms. See, e.g. , United States v.
White, 

, 543 (4th Cir. 2001). However, section
3584 contains no such direction, but rather provides that
courts "shall consider" factors listed in 28 U.S.C. S 3553(a).
The Sentencing Reform Act does not require that the
sentencing judge deciding upon concurrent or consecutive
sentences "must follow" or even "defer" to those elements.
Instead, the statutory obligation is to "consider" these
factors.

In addition to the matters traditionally considered by
sentencing judges, 18 U.S.C. S 3553 lists, as points to be
considered, the kinds of sentences and ranges established
by the Sentencing Commission as well as policy statements.3
It bears repeating that the sentencing judges’ statutory
obligation is to "consider" these factors, rather than
subordinate or surrender their discretion as to whether
consecutive or concurrent sentences should be imposed.

28 U.S.C. SS 994(a)(l) & (l)(2) instruct the Commission to
design Guidelines that affect the appropriate use of
multiple counts committed at different times, and the
general inappropriateness of imposing consecutive terms of
imprisonment for an offense of conspiracy to commit an
offense and for an offense that was the sole object of the
conspiracy. Nevertheless, Courts that have insisted that
sentences for multiple group counts must be consecutive to
achieve "total punishment" have rejected section 994(l)(2) as
a prohibition on consecutive sentencing for conspiracies
and the underlying substantive offenses. See United States
v. Kapaev, 

, 598 (2d Cir. 1999) (holding that
_________________________________________________________________

3. One Court remarked that this reference to the Guidelines
"incorporates [its] own procedures for departing . . . [and thus] avoids a
‘loophole’ which the district courts might use to second-guess the
Sentencing Commission." United States v. Pedrioli, 

(9th Cir.
1991) (case remanded because reasons for imposing consecutive
sentences might not be grounds for departure). The concern should have
been over infringement of the sentencing court’s statutory discretion by
Guidelines, rather than a misplaced misgiving over a"loophole," which
amounted to no more than the statutorily recognized authority of
sentencing judges.

                                10


sentencing courts must impose consecutive sentences in
such circumstances); United States v. Kleinbreil , 

, 952 (5th Cir. 1992) (same); United States v. Saccoccia,

(1st Cir. 1995) (same).

Although we have some doubts that those decisions are
in congruence with the congressional intent expressed in
section 994(l)(2), we are not confronted with that matter
here. We merely point out the anomaly that case law
appears to give a very restrictive meaning to 28 U.S.C.
SS 994(a)(1) & (l)(2), but nevertheless construes section
3584 to diminish the power of the sentencing judge.

The commentary to Part D of the Guidelines observes
that grouping is employed "[i]n order to limit the
significance of the formal charging decision and to prevent
multiple punishment for substantially identical offense
conduct . . ." U.S.S.G. ch.3, pt. D, intro. comment. The
commentary also observes that some offenses are so clearly
intertwined with others that the Guideline ranges should
not be increased. 

the conflicting concepts of grouping and
the use of consecutive sentencing sometimes referred to as
"stacking." The Court concluded that at least in the factual
circumstances there, de-grouping was permissible in order
to impose consecutive sentences under 5G1.2. 

. However, the Court did not discuss the
discretion granted in section 3584, nor whether the
sentencing judge should consider the relationship of the
various convictions within the group before "de-grouping."
The Court noted a distinction between selecting the range
and deciding on consecutive or concurrent sentences, but
did not comment on the fact that although grouping only
affects range, it is a determinate element in setting the
length of the sentence.

As some Courts have read 5G1.2, if the total of the
Guideline’s computations exceeds the statutory maximum
for the primary count, then sentences on the lesser counts
must be consecutive to the extent necessary to achieve
"total punishment." See United States v. McLeod, 

(2d Cir. 2001); United States v. White, 

(4th
Cir. 2001); United States v. Diaz, 

(8th Cir.
2002).

                                11


In following that approach, however, there is a potential
for conflict with the aims of Part D to prevent imposition of
additional punishment for conduct inextricably intertwined
with the principal offense. Grouping attempts to avoid a
sentence that "piles on" imprisonment for conduct that
makes up the principal offense, but was charged in
separate fragments to increase the punishment potential.
Familiar examples are separate counts for each phone call
or letter in a fraud case.

The Guidelines can be seen as inconsistent in inveighing
against excessive sentences, but abandoning that
admonition in 5G1.2 when the computation for the
principal offense cannot be implemented because of the bar
of a statutory maximum sentence. Through the use of the
"total punishment" theory, consecutive sentences for the
minor counts are used to impose a total sentence exceeding
that authorized by Congress for the principal offense.

The parties have not cited nor has our research
uncovered any precedent of this Court interpreting the
interplay between section 3584 and 5G1.2. We have had
some experience with 5G1.3 in determining whether
concurrent or consecutive sentences apply when the
defendant is already subject to an undischarged term of
imprisonment.

In United States v. Nottingham, 

, 391 (3d
Cir. 1990), the defendant was on parole at the time he
committed an offense. We concluded that the version of
5G1.3 then in effect failed to recognize the discretion
granted the sentencing judge by section 3584. 

. Therefore, the Guideline was not
applied.

The defendant in United States v. Holifield, 

(3d Cir. 1995), was sentenced to terms concurrent to those
previously imposed in another district. In affirming, we
observed that the district judge need not follow the
methodology of 5G1.3, and was free to use other means,
but should indicate the reason for selecting the sentence.

. We explained that 5G1.3 provides
for discretion in the sentencing judge, and noted,
"Furthermore, the government points out that this case

                                12


demonstrates the wisdom of leaving discretion in the hands
of the district court." 

United States v. Higgins, 

, 143 (3d Cir.
1997), required the District Court to apply the consecutive
sentence provided by 5G1.3 unless on remand the
defendant could provide sufficient reasons for downward
departure. In Higgins, the defendant committed a crime
while incarcerated in a state prison, unlike the situation in
Nottingham where the defendant was on parole at the time
of his offense. Although it agreed with Nottingham that a
guideline cannot trump a statute with which it conflicts,
Higgins harmonized the general discretion granted under
section 3584(a) and the limitation of 5G1.3. 

. Specifically, "5G1.3(a) is not in conflict with
[section] 3584(a) merely because the Guideline limits
sentencing discretion in the exceptional case of an offense
committed while serving . . . a term of imprisonment." 

See also United States v. Spiers, 

(3d
Cir. 1996) (court permitted to impose consecutive sentence
because defendant "did not deserve" concurrent terms);
United States v. Brannan, 

(3d Cir. 1996)
(District Court had discretion to direct sentence to be
wholly concurrent with previously imposed state term).
However, these cases do not control here because they do
not involve grouping, nor a statutory maximum sentence.

In this case there is no dispute that the counts were
properly grouped. As in almost all drug trafficking cases,
the use of telephones is an integral part of the offense. Case
law reveals the overwhelming number of convictions where
telephone conversations were a significant evidentiary
factor in obtaining convictions.

Although charging choices are the prerogatives of
prosecutors, the grouping guidelines are designed to control
the amount of punishment when excess counts are
employed in an indictment. The communication charge
here clearly covers conduct within the drug trafficking
violation and indeed comes close to coming within the rule
of merger applied to lesser included offenses.

This case illustrates the need for respecting the discretion
of the sentencing judge preserved in section 3854. By

                                13


simply adding a count for conduct that is within the
trafficking offense, the government puts 5G1.2 into play
and effectively nullifies congressional judgment on the
proper maximum sentence.

If only the drug trafficking conviction were at issue, here
the "Guideline sentence" would be the statutory maximum
of 240 months. Adding a consecutive sentence under 5G1.2
without consideration of other factors, is in conflict with the
Guideline policy of imposing "incremental punishment ‘only’
for significant additional criminal conduct." No such
"significant additional criminal conduct" exists in the case
before us.

By imposing concurrent sentences as authorized by
section 3854, the district judge carried out the Guideline
policy of avoiding excessive sanctions caused by blindly
allowing a legally distinct, but realistically indistinct,
offense inherent in the principal count to gain sway. The
district judge in this case described the sentence of 20
years as "a very long period of custody and in this instance
constitutes just punishment." We agree.

The district judge also considered the use of concurrent
sentences as a downward departure justified by the facts.
He noted that the defendant was a low-level worker for the
organization earning $500 to $600 per week, had no prior
record, and the amount of cocaine actually supplied by him
was far less than that attributable to him under the
Guidelines as a member of the conspiracy. Although these
might be adequate reasons for a departure, we need not
use that basis for affirmance. We believe the better
reasoning is to treat the sentence as a proper exercise of
discretion under section 3854.

The sentencing judge fulfilled his obligation to"consider"
the ramifications of the Sentencing Guidelines listed in
section 3553. Having done so in a thoughtful manner, he
decided that the imposition of concurrent sentences
resulted in a "just punishment."

We conclude that the sentencing judge properly exercised
his discretion under section 3854 of the Sentencing Reform
Act, and in accordance with the policy expressed in the

                                14


Guidelines grouping provisions, decided that concurrent
sentences were appropriate.

Accordingly, the judgment of the District Court will be
affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                15