                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-2005

USA v. Ordaz
Precedential or Non-Precedential: Precedential

Docket No. 04-1671




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"USA v. Ordaz" (2005). 2005 Decisions. Paper 1498.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1498


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 04-1671


              UNITED STATES OF AMERICA

                               v.

                        COSME ORDAZ,
                              Appellant


        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                  (D.C. No. 98-cr-00587-16)

        District Judge: Honorable Anita B. Brody

          Submitted Under Third Circuit LAR 34.1(a)
                      October 4, 2004

  Before: SLOVITER, BECKER, and STAPLETON, Circuit
                       Judges

               (Filed      February 23, 2005   )

Steven A. Morley
Morley, Surin & Griffin
Philadelphia, PA l9l06

      Attorney for Appellant

Kathy A. Stark
Office of United States Attorney
Philadelphia, PA l9l06

      Attorney for Appellee
                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

       Appellant Cosme Ordaz appeals following his conviction
by a jury and sentence imposed by the District Court. 1 Ordaz’s
arguments before this court all pertain to the sentence he
received. This requires that we consider the effect of the recent
opinions of the United States Supreme Court in United States v.
Booker, __ U.S. __, 125 S. Ct. 736 (2005).

                                 I.
       Ordaz was one of eighteen defendants charged by a
federal grand jury in a superseding indictment with various
narcotics and conspiracy offenses. Specifically, the superseding
indictment charged Ordaz with one count of conspiring to
distribute cocaine in violation of 21 U.S.C. § 846, and two
counts of the use of a telephone in furtherance of this conspiracy
in violation of 21 U.S.C. § 843(b).2

       According to the United States, the individuals charged in
the superseding indictment were involved in a narcotics
distribution ring, which operated from 1992 until October 1998
under the sobriquet “Ordaz Cocaine Organization” (“OCO”).
The superseding indictment alleged that the OCO would obtain
cocaine from a source in Miami, Florida and transport the
narcotics to Pennsylvania. The OCO operated primarily out of a
bar near Seventh and Tioga Streets in North Philadelphia. After
the bar was closed, the OCO sold off the street.


       1
         The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231; this Court has jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742.
       2
        The United States dismissed one of the 21 U.S.C. § 843(b)
counts prior to trial.

                                2
         Among the other defendants charged in the superseding
indictment were Lazara Ordaz, Ordaz’s sister, and Berto Ordaz,
Ordaz’s brother. According to the United States, Lazara Ordaz
was the OCO’s namesake and overall leader. Lazara Ordaz
eventually entered a plea of guilty to one count of conspiracy to
distribute cocaine, 21 U.S.C. § 846, twenty counts of the use of
various communications facilities in furtherance of this
conspiracy, 21 U.S.C. § 843(b), and one count of possessing a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1). 3

        In contrast to his sister’s guilty plea, Ordaz, along with
co-defendants William Colon and Berto Ordaz, proceeded to
jury trial. The evidence established that Ordaz was incarcerated
beginning in 1991– prior to the conspiracy’s inception – and was
not released until April 1998. The United States conceded that
Ordaz was not part of the conspiracy until approximately the
final six months of the scheme.

        Nonetheless, the government presented evidence that
Ordaz, immediately prior to going to prison in 1991, had
provided his sister with money and narcotics that she had used to
start the OCO. More crucially, the government also presented
evidence that, upon his release from prison, Ordaz assisted the
OCO by selling and transporting drugs. In addition, the
government presented wiretap evidence of several phone calls
between Ordaz and other purported OCO members and
affiliates.

       After a two-week trial, the jury convicted Ordaz of both
the conspiracy offense, 21 U.S.C. § 846, and the use of a
communication facility in furtherance of the conspiracy offense,
21 U.S.C. § 843(b).4 Notably, the jury was not asked to render


       3
        Lazara Ordaz was sentenced to 420 months incarceration.
This court subsequently affirmed her conviction, rejecting her
claim of ineffective assistance of counsel. United States v. Ordaz,
111 Fed. Appx. 128, 134 (3d Cir. 2004).
       4
         The jury also convicted both William Colon and Berto
Ordaz on various counts. This court subsequently affirmed in part

                                3
any decision with respect to drug weight; likewise, the jury was
not asked to make any determination with respect to Ordaz’s
prior criminal history.

        In a Supplemental Memorandum of Law Regarding
Sentencing Issues, Ordaz noted that the amount of narcotics
attributable to him had not been found by the jury. Relying on
Apprendi v. New Jersey, 530 U.S. 466 (2000), Ordaz argued that
it was impermissible for the District Court, as opposed to a jury,
to make a finding as to drug weight for sentencing purposes.
Indeed, Ordaz argued that the District Court could not enhance
his sentence on the basis of any factor that would increase his
Guidelines range if such a factor was not supported by facts
found by a jury. Ordaz urged the District Court to apply a base-
offense level of twelve, the lowest base-offense level available
under the 1998 Edition of the United States Sentencing
Guidelines (which controlled Ordaz’s sentencing) for a
defendant convicted of a cocaine distribution offense. See
U.S.S.G. § 2D1.1(c)(14) (1998). Ordaz further submitted that
before his sentence could be increased on the basis of an alleged
previous narcotics conviction, see 21 U.S.C. § 841(b)(1)(C);
U.S.S.G. § 4B1.1 (1998), the jury needed to find, beyond a
reasonable doubt, the fact of this prior conviction.

       At the sentencing hearing held on March 10, 2004, the
District Court rejected Ordaz’s arguments. 5 Instead, the District
Court, agreeing with the government, applied a base-offense
level of thirty-two, which is the level applicable under the
Guidelines when five to fifteen kilograms of cocaine are
involved. See U.S.S.G. § 2D1.1(c)(4) (1998). In addition to
determining drug weight, the District Court found that Ordaz


and reversed in part Berto Ordaz’s convictions, United States v.
Ordaz, No. 03-3671, 2005 W L 82212 (3d Cir. Jan. 14, 2005), and
affirmed Colon’s convictions, United States v. Colon, 45 Fed.
Appx. 88, 92 (3d Cir. 2002).
       5
        For purposes of sentencing, the District Court “grouped”
Ordaz’s 21 U.S.C. § 846 and 21 U.S.C. § 843(b) convictions. See
generally U.S.S.G. § 3D1.2 (1998).

                                4
was a leader/organizer of the OCO and added four points to his
offense level, see U.S.S.G. § 3B1.1(a) (1998); that Ordaz had
used firearms in committing the conspiracy and added two more
points, see U.S.S.G. § 2D1.1(b)(1) (1998); and that Ordaz had
obstructed justice and thus added another two points, see
U.S.S.G. § 3C1.1 (1998). In total, the District Court calculated
that Ordaz had an offense level of forty.

       The District Court also found that Ordaz had previously
been convicted of several felonies rendering him a career
offender. Under U.S.S.G. § 4B1.1 (1998), this finding resulted
in Ordaz having a criminal history category of VI. Combined
with his offense level of forty, Ordaz had a Guidelines range of
360 months to life in prison. Ultimately, the District Court
sentenced Ordaz to a term of 360 months imprisonment.

       Ordaz thereafter filed a timely notice of appeal raising
several issues. First, relying on Apprendi and the subsequent
decision in Blakely v. Washington, 542 U.S.__ , 124 S. Ct. 2531
(2004) (extending Apprendi and finding unconstitutional certain
applications of State of Washington’s determinate-sentencing
scheme), Ordaz argues that the District Court, by finding drug
weight and applying the other enhancements (i.e.,
leader/organizer, use of a firearm, and obstruction of justice),
violated his Fifth and Sixth Amendment right to have all facts
which increase the maximum punishment found by a jury
beyond a reasonable doubt. 6 Ordaz further argues that the fact of
his purported prior convictions needed to be found by a jury
before the District Court could use them to enhance his
sentence.7



       6
          In addition to his Blakely arguments, Ordaz argues that
the District Court made factual errors in applying the Guidelines,
an issue we leave to the District Court on remand.
       7
           Because in addressing Blakely, the parties have
adequately briefed the issues controlling this appeal, we will deny
the government’s request to submit additional briefs regarding the
effect of Booker.

                                5
                                 II.
        In United States v. Booker, __ U.S. __, 125 S. Ct. 738
(2005), the Supreme Court held, inter alia, that “the Sixth
Amendment as construed in Blakely does apply to the [Federal]
Sentencing Guidelines.” Booker, __ U.S. at __, 125 S. Ct. at
747 (Stevens, J.). Booker was decided by two opinions of the
Court approved by different majorities.8 In the first opinion,
authored by Justice Stevens for a majority of five, which we will
hereafter refer to as “Booker (Stevens),” the Court reaffirmed
the holding in Apprendi that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt” and extended that
rule to the Sentencing Guidelines. Booker (Stevens),        U.S. at
  , 125 S. Ct. at 756.

        The second opinion, authored by Justice Breyer (hereafter
referred to as “Booker (Breyer)”) for a majority of five, focused
on the remedy the Court announced. The Court held that 18
U.S.C. § 3553(b)(1), the provision of the Sentencing Reform Act
of 1984 (“SRA”) that makes the Guidelines mandatory, was
incompatible with the Court’s constitutional ruling and that it
must be severed and excised. Similarly, 18 U.S.C. § 3742(e),
“the provision that sets forth standards of review on appeal,
including de novo review of departures from the applicable
Guidelines range,” must also be severed and excised because it
contains critical cross-references to the section making the
Guidelines mandatory. Booker (Breyer), __ U.S. at __, 125 S.
Ct. at 764. The net result was to delete the mandatory nature of
the Guidelines and transform them to advisory guidelines for the
information and use of the district courts in whom discretion has
now been reinstated.9


       8
            Justice Ginsburg was the only Justice who joined both
opinions.
       9
          Justice Breyer, along with Justices Kennedy and
O’Connor and Chief Justice Rehnquist, dissented from Justice
Steven’s opinion extending the Blakely rule to the Guidelines.

                                 6
       In applying the decisions in Booker to the defendant
before us, it is necessary to distinguish between the two
sentencing issues raised by Ordaz. With respect to Ordaz’s
challenge to the District Court’s determination regarding drug
weight and the enhancements (other than for prior convictions),
the issue is best determined by the District Court in the first
instance and we therefore vacate the sentence and remand for
resentencing in accordance with Booker.

       We turn to Ordaz’s challenge to the enhancement for
prior convictions. In this connection, it is helpful to set forth the
maximum punishments available under the statutes of
conviction.

       The penalty provision of 21 U.S.C. § 843 (the statute
covering use of a telephone to further drug crime) provides, in
relevant part, that:

              [A]ny person who violates this
              section shall be sentenced to a term
              of imprisonment of not more than 4
              years, a fine under Title 18, or both;
              except that if any person commits
              such a violation after one or more
              prior convictions . . . for violation of
              this section, or for a felony under any
              other provision of this subchapter or
              subchapter II of this chapter or other
              law of the United States relating to
              narcotic drugs . . . have become
              final, such person shall be sentenced
              to a term of imprisonment of not
              more than 8 years, a fine under Title
              18, or both.

21 U.S.C. § 843(d)(1) (emphasis added). Therefore, due to the



Similarly, Justices Scalia, Souter, Stevens, and Thomas dissented
from Justice Breyer’s severability analysis.

                                  7
finding by the District Court that Ordaz had a prior federal
narcotics conviction, Ordaz was subject to a maximum statutory
penalty of eight-years imprisonment for his 21 U.S.C. § 843(b)
conviction.10

        The conspiracy statute of conviction, the other offense for
which Ordaz was sentenced, provides that “[a]ny person who
attempts or conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” 21 U.S.C. § 846. The
object of the conspiracy for which Ordaz was convicted was the
distribution of cocaine; the penalties for this substantive offense
are set forth at 21 U.S.C. § 841(b) and depend upon the type and
amount of drugs, as well as whether a defendant had prior
narcotics convictions.

       The jury convicted Ordaz of conspiring to distribute an
unspecified amount of cocaine, a schedule II controlled
substance. See 21 U.S.C. § 812(c)(Schedule II)(a)(4). Under §
841(b), the maximum statutory sentence for Ordaz’s § 846
conviction would appear to have been twenty years or 240
months incarceration. See 21 U.S.C. § 841(b)(1)(C) (“In the



       10
             In sentencing Ordaz, the District Court imposed its
ultimate sentence of 360 months of incarceration on both the 21
U.S.C. § 843(b) and 21 U.S.C. § 846 convictions. See App. at 733.
Even under the pre-Booker framework, this sentence was error as
to the § 843(b) conviction because the maximum penalty under that
statute is eight years. See United States v. Lee, 359 F.3d 194, 209-
10 (3d Cir. 2004) (“[T]he Guidelines instruct[] a court to apply the
same sentence to each count in the same group, unless the
statutorily authorized maximum for that count is less than the
minimum of the guideline range. . . .”). However, because the
District Court imposed concurrent sentences for the § 843(b) and
§ 846 convictions, it is unlikely that Ordaz was prejudiced by this
error. Nonetheless, on remand, the District Court is instructed to
structure the sentence it imposes in a manner consistent with the
statutory maximums.

                                 8
case of a controlled substance in schedule . . . II . . . such person
shall be sentenced to a term of imprisonment of not more than 20
years. . . .”); see also United States v. Vazquez, 271 F.3d 93, 98
(3d Cir. 2001) (en banc) (“In Vazquez’s case, drug quantity was
neither submitted to the jury nor reflected in its verdict.
Therefore, § 841(b)(1)(C) defines Vazquez’s prescribed
statutory maximum sentence as 20 years.”). Section
841(b)(1)(C), however, further provides that “[i]f any person
commits such a violation after a prior conviction for a felony
drug offense has become final, such person shall be sentenced to
a term of imprisonment of not more than 30 years . . . .” As
found by the District Court, Ordaz committed the instant offense
after a prior conviction for a felony drug offense had become
final; thus, Ordaz’s maximum statutory penalty for the
conspiracy conviction was thirty years, or 360 months.

        Ordaz argues that the fact of prior convictions should
have been submitted to the jury. We reject that challenge.
Ordaz’s argument that the fact of a prior conviction must be
found by a jury was rejected by the Supreme Court in
Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998)
(stating that “to hold that the Constitution requires that
recidivism be deemed an ‘element’ of petitioner’s offense would
mark an abrupt departure from a longstanding tradition of
treating recidivism as ‘go[ing] to the punishment only’”)
(quoting Graham v. West Virginia, 224 U.S. 616, 629 (1912)).
Furthermore, in Apprendi the Court specifically exempted prior
convictions from its holding, stating that “[o]ther than the fact 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.” 530 U.S. at 490
(emphasis added).

        Ordaz argues that because of the decision in Blakely, “it
is clear that Almendarez-Torres cannot stand.” Br. of Appellant
at 38. However, the Supreme Court has made clear that “[i]f a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of

                                 9
overruling its own decisions.” Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989); see
also Agostini v. Felton, 521 U.S. 203, 237 (1997).

          We do not gainsay that there is a tension between the
spirit of Blakely and Booker that all facts that increase the
sentence should be found by a jury and the Court’s decision in
Almendarez-Torres, which upholds sentences based on facts
found by judges rather than juries. Cf. United States v. Mack,
229 F.3d 226, 238 n.5 (3d Cir. 2000) (Becker, J., concurring).
Nonetheless, as an inferior federal court we have the
responsibility to follow directly applicable Supreme Court
decisions. See United States v. Marseille, 377 F.3d 1249, 1257
(11th Cir. 2004) (“Marseille asks this court to extend Apprendi’s
rationale and overrule Almendarez-Torres. . . . [H]is wish is
beyond our powers to grant.”); United States v. Losoya-Mancias,
332 F. Supp. 2d 1261, 1265 (D. N.D. 2004) (“This Court
acknowledges that the soundness of the prior conviction
exception under Almendarez-Torres has again been questioned
in light of Blakely. Nevertheless, the Almendarez-Torres
exception remains the law of the land until the United States
Supreme Court chooses to revisit the matter.”).

       The holding in Almendarez-Torres remains binding law,
and nothing in Blakely or Booker holds otherwise. Thus,
because we are bound by Almendarez-Torres, we hold that the
District Court’s determination regarding the facts of Ordaz’s
prior convictions did not violate the Sixth Amendment,
notwithstanding that the sentences were based, in part, on facts
found by a judge rather than a jury.

                               III.
      For the reasons stated above, we will affirm Ordaz’s
conviction, vacate his sentence, and remand for resentencing in
conformance with the opinion of this court.
__________________




                               10
