                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4500




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                                             NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 03-4500


        UNITED STATES OF AMERICA

                        vs.

           GEORGE A. WINKELMAN

               George Winkelman,

                                        Appellant

        (D.C. Criminal No. 01-cr-00304-8)




                   No. 03-4753


        UNITED STATES OF AMERICA

                        vs.

          JOHN F. WINKELMAN, JR.,

                                          Appellant

        (D.C. Criminal No. 01-cr-00304-9)


  On Appeal from the United States District Court
       for the Middle District of Pennsylvania
District Judge: The Honorable James F. McClure, Jr.
                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 28, 2006


            Before: SCIRICA, Chief Judge, and NYGAARD, Circuit Judge,
                          and ALARCON,* Circuit Judge.

                                  (Filed: May 18, 2006)



                              OPINION OF THE COURT


NYGAARD, Circuit Judge.

      Appellants, George and John Winkelman, appeal their convictions and sentences

on numerous weapons and narcotics charges. We will affirm the conviction of George

Winkelman, 03-4500, but vacate his sentence and remand his case to the District Court

for resentencing under United States v. Booker, 463 U.S. 220 (2005) and United States v.

Cooper, 437 F.3d 324 (3d Cir. 2006). We will affirm both the conviction and sentence of

John Winkelman, 03-4753.

                                            I.

      After trial, a jury returned a verdict of guilty against both George and John

Winkelman for conspiracy to distribute cocaine and conspiracy to distribute five

kilograms or more of cocaine and distribution of cocaine to persons less than 21 years of

age, in violation of 21 U.S.C. §§ 846 and 859 respectively (count one). Both were also


      *Honorable Arthur L. Alarcon, Senior Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.

                                            2
found guilty of possession with intent to distribute 500 grams or more of cocaine, also in

violation of 21 U.S.C. §§ 841(a) and (b)(1)(B)(ii) (count nine). John Winkelman was

found guilty of substantive distribution, attempted distribution and possession with intent

to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (counts two, three, four and

eight), as well as carrying or using a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. §924(c)(1) (count thirteen). George Winkelman was

found guilty of two counts of substantive distribution, attempted distribution and

possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (counts

five and eight), as well as two 18 U.S.C. § 924(c)(1) weapons violations (counts ten and

twelve).1

       Over George Winkelman’s objections to his pre-sentence report, the trial judge

sentenced him to an aggregate term of 720 months’ imprisonment: 360 months on counts

one and nine and 240 months on counts five, all to be served concurrently; 60 months on

count ten, to be served consecutively; and 300 months on count twelve to be served

consecutively. Over objections to his pre-sentence report, particularly to the findings of

drug quantities, leadership role in the offense and that he was a career offender because of

his two prior felony drug trafficking convictions, John Winkelman was sentenced to an

aggregate term of life imprisonment plus five years, consisting of concurrent life

sentences on counts one and nine, 30 years each on counts two, three, four and eight, and


1       Counts six and seven were withdrawn from the jury’s consideration and deleted
from the indictment.

                                              3
60 months on count thirteen to be served consecutively. Both filed timely notices of

appeal. Their appeals were consolidated.

       Five issues are now before us: (1) whether the District Court erred by denying

Appellants’ motions to dismiss the third superceding indictment on the grounds of

prosecutorial vindictiveness; (2) whether the District Court’s deletion of the reference to a

specific firearm in count twelve of the indictment charging George Winkelman with

carrying, using or possessing a firearm in furtherance of a drug trafficking crime was an

unlawful amendment of the indictment; (3) whether the District Court erred by engaging

in impermissible judicial fact-finding as to John Winkelman’s two prior felony controlled

substance convictions which in turn mandated his life sentence; (4) whether the District

Court violated the Eight Amendment’s prohibition of cruel and unusual punishment when

it sentenced John Winkelman to life in prison after it found that he was a career offender

responsible for the distribution of at least fifteen kilograms of cocaine; and (5) whether

the District Court’s judicial fact-finding as to the quantity of narcotics attributed to

George Winkelman, his leadership role in the offense and his obstruction of justice

unlawfully enhanced his sentence under United States v. Booker, 463 U.S. 220 (2005).



                                              II.

       We first conclude that the District Court did not err when it denied Appellants’

motions to dismiss the third superceding indictment on the grounds of prosecutorial

misconduct. Appellants’ argument that the third superceding indictment was filed in

                                               4
retaliation for their rejection of proposed guilty pleas is unsupported by the record. First,

just because one event follows another does not necessarily suggest a causal connection

between the two. “[T]he mere fact that a defendant refuses to plead guilty and forces the

government to prove its case is insufficient to warrant a presumption that subsequent

changes in the [indictment] are unjustified.” United States v. Goodwin, 457 U.S. 368,

382-83 (1982). Appellants argue that because prosecutors had sufficient information to

charge them with trading weapons for narcotics as part of the general conspiracy charge

in count one, that the charge should have been contained in one of the previous

superceding indictment. However, prosecutors are permitted to make charging decisions,

and the decision to exclude the illegal trading from the conspiracy count is entirely

permissible. The prosecutor in this case declared before the Court that the entire trading

scheme did not become clear until after substantial witness interrogation while preparing

for trial. Even if the prosecutor possessed information on the trading scheme at the time

the first and second superceding indictments were filed, there would be no presumption of

vindictiveness because a prosecutor may charge a defendant with crimes bearing an

increase in punishment in response to the defendant’s rejection of a negotiated guilty plea.

“[J]ust as a prosecutor may forego legitimate charges already brought in an effort to save

the time and expense of trial, [he] may [also] file additional charges if an initial

expectation that a defendant would plead guilty to lesser charges proves unfounded.”

Goodwin, 457 U.S. at 380 (citing Bordenkircher v. Hayes, 434 U.S. 357, 362-65 (1978)).



                                               5
       Here, Appellants were given proposed plea deals after lengthy negotiations

between counsel in which the prosecution informed defense counsel that both George and

John Winkelman faced potentially significant weapons charges in addition to the

narcotics charges. Trial was fast approaching. It had already been delayed because the

trial judge had generously extended the time for Appellants’ to file various motions and

responses and to hold hearings on those motions. After Appellants’ refused the

negotiated plea agreements, and the judge rescheduled trial once again, prosecutors

continued questioning witnesses and gathering further evidence to support the weapons

for narcotics trading scheme. The grand jury then returned the third superceding

indictment containing these additional charges, trial ensued and Appellants’ were

convicted. Both were free to accept negotiated plea deals, as had their seven co-

defendants, but chose otherwise. Appellants cannot convince us now that just because

going to trial and challenging the additional charges, of which the jury found both guilty

beyond a reasonable doubt, resulted in harsher punishment for them that they were

vindictively prosecuted.



                                            III.

       We next conclude that the District Court did not err when it deleted the reference

to a specific firearm in count twelve of the third superceding indictment, which charged

George Winkelman with carrying, using or possessing a firearm in furtherance of a drug

trafficking crime. This deletion did not amount to an impermissible amendment of the

                                             6
indictment but was a mere variance from the indictment. See United States v.

DeCavalcante, 440 F.2d 1264, 1270-71 (3d Cir. 1971) (describing the evolution of

indictment by grand jury and the differences between an amendment and variance).

       We review a variance from the indictment for harmless error. See DeCavalcante,

440 F.2d at 1271. Toward the end of the trial, the prosecution moved to strike as

surplusage the reference to the Mossberg 12-gauge shotgun in count twelve as the

weapon George Winkelman was alleged to have used, carried and possessed during his

cocaine distribution activities in the fall of 2000. The District Court granted the motion

over George Winkelman’s objections. As a result, the jury could convict George

Winkelman of using, carrying or possessing any firearm in relation to drug trafficking

during this period. George Winkelman was charged with three counts of violating 18

U.S.C. § 924(c)(1) (counts ten, eleven and twelve), and fifteen different weapons were

listed and alleged to have been used during the entire drug trafficking operation, from

January 1986 to October 2001. The Court’s instructions to the jury did not reference any

specific firearm in relation to any of the § 924(c)(1) charges, only that to be found guilty

of using, carrying or possessing a firearm in relation to drug trafficking, the prosecution

must prove beyond a reasonable doubt that the defendant actively employed the firearm,

carried the firearm (such as transporting it by person or vehicle) and that defendant’s

possession of the firearm furthered or advanced the drug trafficking operation. Therefore,

no matter what firearm the jury found George Winkelman guilty of using, carrying or

possessing, the statute forbidding it would have been violated, and he would have been

                                              7
found – and was found – guilty on count twelve. We find no error. “The variance . . .

added nothing new . . . and constituted no broadening” of the indictment. See United

States v. Miller, 471 U.S. 130, 145 (1985).

                                              IV.

       We next decide that the District Judge did not commit plain error when he

determined that John Winkelman was to be sentenced to life in prison because he had

been twice convicted for drug trafficking felonies. First, the argument that a prior

conviction must be found by a jury was explicitly rejected in both Almendarez-Torres v.

United States, 523 U.S. 224, 244 (1998) (“to hold that the Constitution requires

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.’”), reh’g denied, 530 U.S. 1299 (2000), and in Apprendi v. New Jersey,

530 U.S. 466 (2000) (“Other 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.”). Booker did not affirmatively overrule the

holding of either case. See Ordaz, 398 F.3d at 241 (quoting Rodriguez de Quijas v.

Shearson/American Express, Inc. 490 U.S. 477, 484 (1989) (“If 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 overruling its own decisions.”)) Therefore, we hold that

the District Judge permissibly found that John Winkelman had previously been twice

                                              8
convicted of felony drug offenses and used this finding to sentence him to life in prison

pursuant to 21 U.S.C. § 841(b)(1)(A).

                                             V.

       We next conclude that the District Court neither violated John Winkelman’s

Eighth Amendment rights nor committed plain error when it sentenced him to life in

prison, after finding that he was criminally responsible for distributing at least 15

kilograms of cocaine and was a career offender. Because this issue was not raised in the

District Court, we apply plain error review. When analyzing proportionality, we consider

the seriousness of the offense, the magnitude of the penalty and the sentences imposed on

other defendants for the same crime both within and without the jurisdiction. We also

accord deference to the legislatures within whose broad authority rests the power to

determine types of and limits on punishments for crimes. However, the Eighth

Amendment protects only against punishments grossly disproportionate to the crime. See

United States v. MacEwan, 2006 WL 861184, at *7 (3d Cir. 2006) (citing Ewing v.

California, 538 U.S. 11, 30 (2003)). Therefore, if the defendant cannot show a “gross

imbalance” between the sentence and the crime, we end our analysis. MacEwan 2006

WL 861184, at *7.

       John Winkelman has been twice convicted of felony drug offenses, has been

convicted of the present offenses on appeal, including long-term drug trafficking as well

as trading drugs for weapons, and has been convicted of trafficking in more than 15

kilograms of cocaine. We cannot term “cruel and unusual” a sentence of life in prison for

                                              9
a career drug trafficker who adamantly refuses to abide by our nation’s drug laws, despite

prior convictions and punishment, and as a result of his voluntary choices, has landed

back in prison. The District Court neither erred nor violated John Winkelman’s

constitutional rights when imposing this sentence, and it will therefore be affirmed.

                                            VI.

       Lastly, we determine that the District Judge erred when he engaged in fact-finding

regarding the quantity of drugs for which George Winkelman was responsible, his

leadership role in the offense and his obstruction of justice. Because this issue was not

raised in the District Court, we apply plain error review. The challenged judicial fact-

finding at issue here violated the now-advisory federal sentencing scheme articulated in

United States v. Booker, 463 U.S. 220 (2005), and therefore, we find plain error. See

United States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005) (“In cases where a defendant’s

sentence is enhanced based on facts neither admitted to nor found by a jury, the defendant

can demonstrate plain error and may be entitled to resentencing.”) We will therefore

vacate George Winkelman’s sentence and remand his case to the District Court for

resentencing under Booker and our recent guidance as articulated in United States v.

Cooper, 437 F.3d 324 (3d Cir. 2006).

                                           VII.

       We will affirm the conviction of George Winkelman, 03-4500, but vacate his

sentence and remand his case to the District Court for resentencing under United States v.



                                            10
Booker, 463 U.S. 220 (2005) and United States v. Cooper, 437 F.3d 324 (3d Cir. 2006).

We will affirm both the conviction and sentence of John Winkelman, 03-4753.




                                          11
