11-2722-cr
United States v. Deida


                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT
                               August Term 2011
       (Argued: May 29, 2012                 Decided:        June 20, 2012)
                            Docket No. 11-2722-cr


                             UNITED STATES   OF   AMERICA,

                                                      Appellee,

                                        v.

                              DOMINGO GONZALEZ, JR.,
                                                      Defendant,

                                 FRANCISCO DEIDA,

                                                      Defendant-Appellant.

Before:
             WINTER, MCLAUGHLIN, and CHIN, Circuit Judges.

             Appeal from a judgment of conviction and sentence

of the United States District Court for the District of
Connecticut (Underhill, J.).
             AFFIRMED.
                           ANTHONY EDWARD KAPLAN, Assistant United
                                 States Attorney (Sarah P. Karwan,
                                 Sandra S. Glover, Assistant United
                                 States Attorneys, on the brief), for
                                 David B. Fein, United States
                                 Attorney, District of Connecticut,
                                 New Haven, Connecticut, for
                                 Appellee.
                           DAVID VINCENT DEROSA, Law Offices of David
                                 V. DeRosa, Naugatuck, Connecticut;
                                 Donald Cretella, Zingaro & Cretella,
                                 LLC, Bridgeport, Connecticut, for
                                 Defendant-Appellant.
PER CURIAM:
           Defendant-appellant Francisco Deida, convicted

after a jury trial of two counts of bank robbery in
violation of 18 U.S.C. § 2113(a) and sentenced to life

imprisonment, appeals from a judgment of conviction and
sentence entered by the United States District Court for the
District of Connecticut (Underhill, J.) on July 6, 2011.       We

hold that the district court did not err in sentencing Deida
to a mandatory term of life imprisonment pursuant to 18

U.S.C. § 3559(c).    Accordingly, we affirm.

                           BACKGROUND

           Deida's conviction stems from two armed bank

robberies in Connecticut on January 28, 2009, and April 6,

2009.   Deida committed both robberies with co-defendant
Domingo Gonzalez, who entered the banks with Deida, and co-

defendant Henry Crespo, who served as the getaway driver

both times.    During the first robbery, Deida and Gonzalez

entered the Webster Bank in Milford wearing heavy clothing
and masks, carrying umbrellas that partially blocked the

bank's video surveillance, and wielding guns.      The
defendants fled in a car driven by Crespo with approximately

$84,000.
           The second robbery was of a TD Bank in Woodbridge,

Connecticut.    Deida and Gonzalez again wore heavy clothing
and masks and carried umbrellas and guns.      Deida also wore a

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fake mustache and prosthetic nose.    A postal worker who had
been delivering mail to the bank observed the crime in

progress, left the bank, and called 911 from his postal
truck.   The defendants left the bank with approximately

$23,000 and fled in Gonzalez's Cadillac, driven by Crespo.
A high speed police chase ensued.    Crespo drove the getaway
car to New Haven, where Deida and Gonzalez jumped out of the

car and fled on foot.   Crespo abandoned the car a few blocks
away and was apprehended by police later that day.

          Before trial, the government filed an information

pursuant to 18 U.S.C. § 3559(c) and 21 U.S.C. § 851
notifying Deida of its intention to seek a sentence of

mandatory life imprisonment.    The information asserted three

prior felony convictions: robbery in the first degree,
assault in the first degree, and manslaughter in the first

degree, all in violation of Connecticut law.

          At trial, the government presented evidence found

in the vicinity of the abandoned getaway car that connected
the three defendants to the two bank robberies.    The
evidence included Gonzalez's cell phone, and records for the

phone showed that Gonzalez called a telephone number around
the times of both robberies that matched a telephone number
listed as Deida's contact number in a job application found

in his possession at the time of his arrest.    On March 4,

2010, the jury found Deida guilty of both robberies.

                               -3-
          At sentencing on June 21, 2011, the government
presented evidence of Deida's three prior convictions.      The

government argued that the convictions were "serious violent
felonies" under the three strikes provision of 18 U.S.C. §

3559(c), thereby subjecting him to a mandatory sentence of
life imprisonment.   The district court agreed and found that
"each of the three crimes set forth in the information ha[s]

been proven to have been committed by the defendant here,
Francisco Deida," and that the crimes were serious violent

felonies under § 3559(c).    The district court sentenced

Deida to a term of life imprisonment on each of the two
counts.

          This appeal followed.
                            DISCUSSION

          Title VII of the Violent Crime Control and Law

Enforcement Act of 1994 (the "Act"), Pub. L. No. 103-322,

108 Stat. 1796 (1994), created a mandatory sentencing scheme

for federal defendants convicted of repeat violent felonies.
Under Section 7001, known as the "three strikes" provision,
any individual convicted of three violent felonies faces a

mandatory sentence of life imprisonment.    108 Stat. 1982-
1085 (codified as amended at 18 U.S.C. § 3559(c) (mandating
life imprisonment for defendants convicted of "serious

violent felon[ies]" if they have previously been convicted


                               -4-
of two more serious violent felonies)); see 18 U.S.C. §
3559(c)(2)(F) (defining "serious violent felony").

         On appeal, Deida makes two arguments: (1) the
three strikes provision of § 3559 violates the principle of

separation of powers and (2) prior convictions subjecting a
defendant to a statutory sentencing enhancement must be
found by a jury and not a judge.    Both questions raise

issues of law, which we generally review de novo, but
because Deida did not raise the issues below, the district

court's failure to rule as Deida now urges is reviewed for

plain error.   See, e.g., United States v. Reyes, 557 F.3d
84, 87 (2d Cir. 2009).

         First, Deida's argument that the three strikes

statutory scheme violates the principle of separation of
powers is without merit.    Although this Court has not yet

considered the question, all four Courts of Appeals that

have addressed the issue have upheld the statute.    See,

e.g., United States v. Gurule, 461 F.3d 1238, 1246-47 (10th
Cir. 2006); United States v. Kaluna, 192 F.3d 1188, 1199
(9th Cir. 1999); United States v. Rasco, 123 F.3d 222, 226-

27 (5th Cir. 1997); United States v. Washington, 109 F.3d
335, 338 (7th Cir. 1997).    We agree and hold that the three
strikes provision of § 3559(c)(1) is constitutional and does

not violate the doctrine of separation of powers.


                              -5-
         Deida argues that the statute gives the executive
branch, via the United States Attorney, the authority to

determine a defendant's sentence when the judiciary should
have full control over sentencing.    The Constitution,

however, does not require all governmental duties to be the
exclusive realm of one branch.     See Mistretta v. United
States, 488 U.S. 361, 380 (1989) ("[T]he Framers did not

require -- and indeed rejected -- the notion that the three
Branches must be entirely separate and distinct.").       While

the three branches of government must remain "entirely free

from the control of coercive influence, direct or indirect,
of either of the others," id. at 380 (citation and internal

quotation marks omitted), "a degree of overlapping

responsibility [and] a duty of interdependence" is both
expected and necessary, id. at 381.    Specifically, the

Supreme Court has acknowledged the need for, and

constitutionality of, coordination among the branches for

matters of federal sentencing.     See Mistretta, 488 U.S. at
365, 380-412 (upholding Congress's creation of the
Sentencing Commission); see also Chapman v. United States,

500 U.S. 453, 467 (1991) ("Congress has the power to define
criminal punishments without giving the courts any

sentencing discretion.").   This Court, too, has consistently

recognized that the judiciary does not possess exclusive


                             -6-
control over sentencing matters.     See United States v.
Sanchez, 517 F.3d 651, 670-71 (2d Cir. 2008) ("Although [21

U.S.C. § 851] gives prosecutors some degree of control over
a defendant's ultimate sentence, it does not violate the

principle of separation of powers."); see also United States
v. Acoff, 634 F.3d 200, 201-02 (2d Cir. 2011) ("'[T]he scope
of judicial discretion with respect to a sentence is subject

to congressional control.'" (quoting Mistretta, 488 U.S. at
364)).   Moreover, prosecutors are permitted discretion as to

which crimes to charge and which sentences to seek.     See

United States v. Jennings, 652 F.3d 290, 301 (2d Cir. 2011).
The authority that § 3559 delegates to prosecutors,

therefore, does not unconstitutionally delegate the

judiciary's power to the executive branch.     See Washington,
109 F.3d at 338 ("The prosecutor's power to pursue an

enhancement under § 3559(c)(1) is no more problematic than

the power to choose between offenses with different maximum

sentences.").
          We conclude that § 3559 poses no danger of
"coercive influence" by the executive branch over the

judiciary or of "aggrandizement or encroachment."     See
Mistretta, 488 U.S. at 380-82.     Deida's separation of powers
argument therefore fails.




                             -7-
         Second, Deida's argument that prior convictions
subjecting a defendant to life imprisonment under § 3559

must be found by a jury in a bifurcated jury trial is also
without merit.   In Almendarez-Torres v. United States, 523

U.S. 224 (1998), the Supreme Court held that while elements
of a crime in general must be proven beyond a reasonable
doubt, prior convictions leading to a recidivism-based

statutory sentencing enhancement are not "elements" of an
offense and are to be found by a judge rather than a jury.

Id. at 239-247; see also Apprendi v. New Jersey, 530 U.S.

466, 498-90 (2000) (preserving Almendarez-Torres exception).
Deida argues that Almendarez-Torres is no longer good law,

but he is simply incorrect.   Although it is true that

Almendarez-Torres has been criticized, see, e.g., Shepard v.
United States, 544 U.S. 13, 26-28 (2005) (Thomas, J.,

concurring in part and concurring in the judgment);

Apprendi, 530 U.S. at 489 and n.15 ("[I]t is arguable that

Almendarez-Torres was incorrectly decided . . . ."), the
decision has not been overturned, as this Court recognized
in United States v. Snype, 441 F.3d 119, 147-52 (2d Cir.

2006) (rejecting Sixth Amendment and due process challenges
to § 3559(c)(3)(A)).   Deida's second argument fails as well.




                              -8-
                           CONCLUSION

          We have considered all of Deida's remaining

arguments on appeal 1 and find them to be without merit.

Accordingly, the judgment of the district court is AFFIRMED.




     1
          Deida argues that the district court erred in admitting
into evidence the job application found on his person at the time
of his arrest because it was hearsay. Because he did not make
this argument below, the argument was not preserved and we review
the district court's ruling only for plain error. The district
court did not err at all, much less plainly err.

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