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


8-13-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 00-3762




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                                                 NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   No. 00-3762


                   UNITED STATES OF AMERICA,

                                          Appellee
                                 v.

                      IRIS YOLANDA DAVILA,

                                          Appellant

                       ___________________


          On Appeal from the Convictions and Judgment
           of Sentence Entered in the United States
    District Court for the Eastern District of Pennsylvania
                           Crim. No. 99-cr-00505-2
              District Judge: Hon. Franklin S. Van Antwerpen

                     Argued: July 15, 2002

Before: McKee, Weis, and Duhe, Circuit Judges
                         (Filed: August 13, 2002)


Rania M. Major-Trunfio (Argued)
2732 N. 5th Street
Philadelphia, PA 19133

     Counsel for Appellant


Patrick L. Meehan
Laurie Magid
Robert A. Zauzmer
David E. Troyer (Argued)
Office of the United States Attorney
615 Chestnut, Suite 1250
Philadelphia, PA 19106

     Counsel for Appellee


                             OPINION OF THE COURT

McKee, Circuit Judge.
     A jury convicted Iris Yolanda Davila of two counts of an indictment charging
drug related offenses. On appeal, Davila raises various sentencing issues, and argues for
a new trial on the grounds of ineffective assistance of counsel. For the reasons that
follow, we will affirm.
                               I.
     Inasmuch as we write only for the district court and the parties who are familiar
with the case, we need not recite the factual background except where helpful to our
brief discussion. We exercise plenary review over sentencing issues Davila raises
regarding the application of Apprendi v. New Jersey, 530 U.S. 466 (2000). See United
States v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2001). We also exercise plenary review
over the district court’s interpretation of the Sentencing Guidelines, however, the court’s
factual findings are reviewed for clear error. See United States v. Butch, 256 F.3d 171,
177 (3d Cir. 2001).
                             II.
     One month after Davila was convicted, the Supreme Court decided Apprendi v.
New Jersey, 530 U.S. 466 (2000). Davila argues that under Apprendi, the jury was
required to find beyond a reasonable doubt the specific quantity of drugs attributable to
her.
     Apprendi held that, with the exception of a prior conviction, "any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490.
Apprendi specifically expressed no view of the constitutionality of the Sentencing
Guidelines, however, as the Guidelines were not before the Court. See id. at 497 n.21.
The court in Apprendi also concluded that nothing about the notion of requiring a jury
verdict for every element of an offense suggests that a judge may no longer use his or her
discretion to adjust a sentence within the appropriate sentencing range for a particular
offense. See id. at 481.
     In interpreting the contours of Apprendi, we have stated that the Guidelines are
essentially a codification of a judge’s traditional ability to exercise discretion in
sentencing. See Williams v. United States, 235 F.3d 858, 862 (3d Cir. 2000); United
States v. Mack, 229 F.3d 226, 243 (3d Cir. 2000) (Becker, J., concurring). We have held
that, so long as the application of the Guidelines does not increase a sentence beyond the
statutory maximum, Apprendi is not implicated. See Williams, 235 F.3d at 863, citing
United States v. Cepero, 224 F.3d 256, 267 n.5 (3d Cir. 2000).
             Davila argues that Apprendi requires that the specific quantity of drugs, here 14
kilograms of heroin and crack cocaine respectively, should have been decided by a jury
based on proof beyond a reasonable doubt rather than by the court under a preponderance
of the evidence standard. Following trial, the court held an evidentiary hearing and heard
testimony regarding the quantity of drugs involved in the conspiracy. At sentencing, the
court found that the government had shown by a preponderance of the evidence that the
conspiracy involved 14 kilograms of heroin and 14 kilograms of crack cocaine, and that
this amount should be attributed to Davila. The court then sentenced Davila to life
imprisonment. However, since life imprisonment was already prescribed as the
maximum penalty under the statute, the court’s finding regarding the specific quantity of
drugs had no impact on the maximum penalty Davila faced. Therefore, Apprendi is not
applicable here.
     Davila also argues that the court’s finding attributing the 14 kilograms of heroin
and crack cocaine to her is not supported by the evidence. Davila argues that the
government’s evidence regarding the amount of drugs involved in the conspiracy did not
specifically implicate her as the person who sold those drugs.
     This court has recognized that it can often be difficult to precisely ascertain the
amount of drugs involved in large-scale conspiracies. So long as calculations are not
based upon "mere speculation," we have held that "some degree of estimation must be
permitted, for the government usually cannot seize and measure all the drugs that flow
through a large drug distribution conspiracy." United States v. Collado, 975 F.2d 985,
998 (3d Cir. 1992). In addition, where a conspiracy is proven, the district court may take
into consideration all reasonably foreseeable acts of co-conspirators in furtherance of the
conspiracy in assessing a defendant’s culpability. See U.S.S.G. 1B1.3(a)(1)(B) (2001).
     Angel Prieto, a member of the drug ring, testified on behalf of the government at
trial. Prieto testified that during the relevant time period, Davila and her co-conspirator,
Axel Santos-Cruz, would receive quantities of « kilogram to 1 kilogram of both heroin
and cocaine once or twice a week. Prieto further testified that Davila would then
convert the cocaine into crack cocaine, and sell it. Prieto’s testimony was corroborated
by the testimony of undercover Trooper Kelly Cruz and Trooper Jay Lownsbery.
Prieto’s testimony was also corroborated by 45 transcripts of recorded telephone calls.
This evidence supports the finding that throughout the course of the conspiracy, Davila
and her co-conspirator sold 14 to 56 kilograms of both heroin and crack cocaine. The
district court attributed the lower figure of 14 kilograms to Davila for each of the two
drugs at sentencing. Thus, even if Davila did not personally sell that entire amount, the
district court may still take into consideration for sentencing purposes the acts of her co-
conspirator that were taken in furtherance of the conspiracy. We therefore can not say
that attributing 14 kilograms of heroin and crack cocaine to Davila was clearly
erroneous.
     Davila further argues that the jury, rather than the court, was required under
Apprendi to determine whether the conspiracy operated within 1000 feet of a school, in
violation of 21 U.S.C. 860, and whether she had a leadership role in the conspiracy.
     Under 1B1.3 of the Sentencing Guidelines, a court may take into consideration a
defendant’s "relevant conduct" in adjusting the sentence. See U.S.S.G. 1B1.3. Such
relevant conduct can include a violation of a particular statute, even where there has been
no conviction for violating that statute. See id. 1B1.3 n.6.
     The court declined to impose a 2-level enhancement for operating a drug house
within 1000 feet of a school in violation of 21 U.S.C. 860, as Davila was never
indicted or convicted for that offense. Later at sentencing, the court told Davila that the
fact that the distribution took place near a school was relevant to the court’s
consideration of an appropriate sentence. R. at 1223. The court also assessed a 4-level
increase for being an organizer or leader of a criminal activity involving five or more
participants. The court then sentenced Davila to life imprisonment; the upper end of the
statutory and Guidelines maximum.
     The evidence clearly established that the drug house was less than 1000 feet from
the school. There was testimony at the evidentiary hearing by two witnesses, one of
whom was a licensed civil engineer, that the drug house was exactly 848.6 feet from the
school, and a total of five maps were admitted into evidence showing the location of the
drug house and the school. Under the Guidelines, it is of no moment that Davila was not
convicted under 21 U.S.C. 860. It is still within a judge’s discretion to consider such
conduct even though it was not included in the indictment. Moreover, as noted above,
the statutory maximum under Count I is life imprisonment. Therefore, the adjustments
the court made for operating a drug house within 1000 feet of a school, and for Davila’s
leadership role did not increase Davila’s sentence beyond the statutory maximum.
Consequently, Apprendi is not implicated.
     Next, Davila argues that the district court erred by not reducing Davila’s sentence
under 5K2.13 of the Guidelines due to her "nerves" condition. Davila argues that her
unspecified "mental infirmities" are severe enough to support a sentence reduction.
     If the district court’s decision not to make a downward departure was based upon
a belief that it did not have the authority to do so, then we have jurisdiction to determine
if the district court’s understanding of the law was correct. See United States v.
Mummert, 34 F.3d 201, 205 (3d Cir. 1994). However, if the district court’s decision was
based upon its exercise of discretion, we lack jurisdiction to entertain the argument. See
id.; United States v. Powell, 269 F.3d 175, 179 (3d Cir. 2001).
     In imposing a life sentence, the court explicitly stated that it was taking many
factors into consideration. Among those factors the court listed, was "the nature of the
offense, the defendant’s history, characteristics, educational, vocational and corrective
needs, as well as her needs for mental health treatment and her mental condition." R. at
1223 (emphasis added). The court also considered, "the need for deterrents and
protection of the public" as well as "the quantity of drugs . . . and [that] processing took
place near a school." Id. The court, therefore, took into consideration Davila’s "nerves"
condition, but ultimately decided that other more compelling factors weighed in favor of
a life sentence. The district court exercised its discretion with respect to evaluating the
propriety of granting a downward departure, and consequently we do not have
jurisdiction to second guess its decision.
     Lastly, Davila claims that she was deprived of effective assistance of counsel.
Davila cites to fourteen examples where she feels her trial counsel erred. However, a
claim of ineffective assistance of counsel will generally not be entertained by this court
on direct appeal. Rather, such a claim must be raised in a collateral proceeding under 28
U.S.C. 2255. See United States v. Rieger, 942 F.2d 230, 235-36 (3d Cir. 1991); 28
U.S.C. 2255 (2002). A narrow exception to this rule applies where the record is
sufficient to allow an appellate court to make a determination on the ineffective
assistance claim. See United States v. Headley, 923 F.2d 1079, 1082 (3d Cir. 1991).
That is not this case here, however.
     Most of the fourteen examples Davila cites are variations of issues already argued
in her direct appeal, i.e. trial counsel’s failure to argue for lesser culpability due to
Davila’s "mental infirmities." Others relate to possible tactical decisions, i.e. trial
counsel’s failure to introduce evidence explaining why Davila was collecting Social
Security benefits. This record, however, is not sufficient to resolve Davila’s ineffective
assistance of counsel claim. If Davila wishes to pursue the ineffective assistance claim,
she must raise it under 28 U.S.C. 2255.
     Accordingly, for all the reasons set forth herein, we will affirm the convictions
and judgment of sentence.


                    TO THE CLERK:
                              Please file the foregoing memorandum opinion.

                                                                      BY THE COURT:

                                                                          /s/ Theodore A. McKe
                                                                      Circuit Judges
                              FOR THE THIRD CIRCUIT

                                   No. 00-3762


                   UNITED STATES OF AMERICA,

                                          Appellee
                                 v.

                        IRIS YOLANDA DAVILA,

                                          Appellant



          On Appeal from the Convictions and Judgment
           of Sentence Entered in the United States
    District Court for the Eastern District of Pennsylvania
                           Crim. No. 99-cr-00505-2
              District Judge: Hon. Franklin S. Van Antwerpen

                     Argued: July 15, 2002

Before: McKee, Weis, and Duhe, Circuit Judges


                            JUDGMENT
     This cause came to be considered on the record from the United States District
Court for the Eastern District of Pennsylvania and was argued on July 15, 2002.
     On consideration of the arguments made on appeal, it is hereby ORDERED AND
ADJUDGED by this Court that the convictions and judgment of sentence of the district
court entered October 30, 2000, are hereby affirmed. All of the above in accordance
with the opinion of this Court.
     Our decision is without prejudice to Appellant’s right to file an appropriate
petition under 28 U.S.C. 2255.
                                                                                ATTEST:

                                                                                Acting Clerk
Dated: 13 August 2002
