Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-3-2003

USA v. Cartagena
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2733




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Recommended Citation
"USA v. Cartagena" (2003). 2003 Decisions. Paper 493.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/493


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                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 01-2733




                 UNITED STATES OF AMERICA

                                 v.

             RUDY RAFAEL JAVIER-CARTAGENA,
                  a/k/a FRANCISCO CRUZ

                                            Rudy Rafael Javier-Cartagena,
                                                                   Appellant


           On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                 D.C. Criminal No. 00-cr-00649-3
                 (Honorable William H. Yohn, Jr.)




           Submitted Pursuant to Third Circuit LAR 34.1(a)
                           May 19, 2003

Before: SCIRICA, Chief Judge, NYGAARD and BECKER, Circuit Judges

                       (Filed: May 29, 2003)




                    OPINION OF THE COURT
SCIRICA, Chief Judge.

       This is a sentencing appeal. Defendant Javier-Cartagena pled guilty without a

plea agreement to conspiracy, 21 U.S.C. § 846, and distribution of heroin within 1,000

feet of a school, 21 U.S.C. § 841(a)(1), (b)(1)(B); 18 U.S.C. § 2. Defendant contends the

government failed to show “good cause” for its failure to timely object to the drug

quantity set forth in the Presentence Investigative Report. As a result, defendant

contends, the District Court erroneously permitted the government to present evidence of

drug quantity at the sentencing hearing.

                                             I.

       The probation office submitted a presentence report on May 5, 2001, attributing

between 400 and 700 grams of heroin to the defendant. The government failed to submit

written objections to the report within 14 days under Fed. R. Crim. P. 32(b)(6)(B). At

the sentencing hearing on June 5, 2001, the government produced evidence (in the form

of testimony by a co-conspirator, Ramon Fana) to establish the amount of heroin

attributable to the defendant was substantially higher—up to 22 grams of heroin per day,

not per week, as set forth in the PSI. After defendant objected, the District Court

continued the hearing until June 15, to allow the parties to submit letter briefs on the

proposed receipt of the government’s additional evidence.1 On June 15, the court denied



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    The court also ordered the probation department to submit a revised presentence
report using the higher kilogram amount.

                                              2
Javier-Cartagena’s request to limit the amount of attributable heroin to 700 grams, the

amount stated in the May 5 presentence report, and sentenced him to 78 months

incarceration, eight years supervised release, and a special assessment of $200.

                                            II.

       Under Fed. R. Crim. P. 32 the District Court has discretion to hear objections

raised for the first time on the date of sentencing. Rule 32(b)(6)(B) provides that

“[w]ithin 14 days after receiving the presentence report, the parties shall communicate in

writing to the probation officer, and to each other, any objections to any material

information, sentencing classification, sentencing guideline ranges . . . .” But Rule

32(b)(6)(D) provides that “[f]or good cause shown, the court may allow a new objection

to be raised at any time before imposing sentence.”

       “Good cause” is not defined by Rule 32. Generally, for purposes of Rule 32, good

cause is an express, good faith explanation for the delay, or when failure to consider the

objection may result in an erroneous sentence.

                                            III.

       In this case, good cause was demonstrated. Precluding the government’s

objection would have resulted in an erroneous quantity of heroin and an erroneous

sentence. Furthermore, defendant was on notice as of February 20, 2001, that the

quantity of heroin was unresolved and that the government intended to present additional

evidence on the date of sentencing.


                                             3
      As the District Court noted:

      It seems to the court that, as a result of that, and the fact that the parties all
      knew, in particular, the defendant, from the very beginning that there
      would need to be a hearing or an agreement with reference to the amount of
      drug quantities, that there was hearing with notice, and that there is,
      therefore, no prejudice to the defendant as a result of the failure of the
      government to file these objections on a timely basis—and further, I
      frankly have granted the right to file untimely objections to I guess what I
      would call an untold number of defendants in the last ten years, since some
      defense lawyers seem to make a practice of not filing any till the time of the
      sentencing hearing. And so it seems to me that there is ample good cause
      for me to allow the government to take the position that it did, and to raise
      the issue after 14 days subsequent to the receipt of the presentence report.

      Because defendant had notice and an opportunity to be heard, and because refusal

to hear the government’s objection would have resulted in an erroneous sentence, there

was good cause for the court to exercise its discretion in hearing the government’s

objection.

                                             IV.

      As noted, the initial presentence report calculated the relevant amounts of heroin

between 400 and 700 grams. But the testimony provided by Ramon Fana at the June 5

sentencing hearing clearly established that the amounts were significantly higher. Based

on the evidence, the District Court attributed 2.5 kilograms of heroin to each defendant,

increasing Javier-Cartagena’s exposure under the sentencing guidelines.

      As noted, at the June 15 sentencing hearing, the District Court was willing to

afford the defendant and his counsel, Thomas Quinn, additional time to contest the

proffered evidence: “However, if, Mr. Quinn, for any reason you need additional time

                                              4
for any purpose in connection with this, that you feel was—is necessitated by the fact

that there is such a finding, or that there was the prior hearing, I would certainly give that

to you.” Mr. Quinn’s response was, “I don’t think there would be any purpose served to

delay the proceedings before your honor.”

       In this case, defendant was afforded an opportunity to comment before the District

Court imposed its sentence. In effect, the court recreated the opportunity that defendant

lost due to the belated filing of the government’s objection. The purpose of Rule 32 is to

allow a defendant to rebut or explain the contents of presentence reports. The court

properly granted the defendant additional time not only to challenge the court’s ruling,

but also to challenge the revised presentence report dated June 14, 2001. On June 15,

Javier-Cartagena declined the court’s invitation for a continuance or additional argument.

       The District Court would have imposed the same sentence even if the

government’s objection had been timely. Defendant was not prejudiced by the timing of

the government’s evidentiary presentation. For these reasons, defendant was not

prejudiced by the District Court’s receipt of additional evidence. We see no abuse of

discretion.

                                             V.

       For these reasons we will affirm the judgment of conviction and sentence.




                                              5
TO THE CLERK:

         Please file the foregoing opinion.




                                     /s/ Anthony J. Scirica
                                                   Chief Judge




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