                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2007

USA v. Colon
Precedential or Non-Precedential: Precedential

Docket No. 05-3684




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                                          PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 05-3684


                 UNITED STATES OF AMERICA

                                v.

                          CARLOS COLON,

                                                  Appellant


          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                    (D.C. Crim. No. 02-00618)
           Honorable Legrome D. Davis, District Judge


            Submitted under Third Circuit LAR 34.1(a)
                       December 14, 2006

                BEFORE: FISHER, CHAGARES,
                and GREENBERG, Circuit Judges

                     (Filed: January 29, 2007)


Patrick L. Meehan
United States Attorney
Robert A. Zauzmer
Assistant U.S. Attorney
Chief of Appeals
Kenya S. Mann
Assistant U.S. Attorney
615 Chestnut Street
Philadelphia, PA 19106

   Attorneys for Appellee
Jose L. Ongay
521 South Second Street
Philadelphia, PA 19147

   Attorney for Appellant


                     OPINION OF THE COURT


GREENBERG, Circuit Judge.

                         I. INTRODUCTION

         This matter comes on before the court on an appeal from a
judgment of conviction and sentence entered on July 27, 2005, in the
district court. The appellant, Carlos Colon, limits his appeal to
sentencing issues following his resentencing after United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), on a remand from this
court.

        This is what happened. A grand jury indicted Colon on one
count of conspiracy to distribute more than 500 grams of cocaine in
violation of 21 U.S.C. § 846 and 17 counts of delivery of a controlled
substance, cocaine, in violation of 21 U.S.C. § 841(a)(1). Colon
pleaded guilty to all counts of the indictment except for one delivery
count under 21 U.S.C. 841(a)(1), which the district court later
dismissed, relating to an April 11, 2002 delivery.

         In view of Colon’s prior convictions for felony drug offenses,
21 U.S.C. § 841(b)(1)(B) required the court to sentence him to a term
of imprisonment of not less than 10 years nor more than life
imprisonment. But inasmuch as his criminal history category was III
and his total offense level was 25, a level predicated in part on
considering the April 11, 2002 delivery, Colon’s guideline sentencing
range was 70-87 months. The court determined his total offense level
after allowing him a 3-level credit for acceptance of responsibility.

        The government, however, regarded Colon’s history as no
different than that of a career offender, a designation which, after the
3-level reduction for acceptance of responsibility, would have
subjected him to a term of 262 months to 327 months imprisonment.
Consequently, the government asked the court to depart from the
guidelines with respect to Colon’s criminal history category.

                                    2
         The court indicated that it would depart as it pointed out, inter
alia, that one of Colon’s state convictions involved 1,062 separate
drug deliveries. Moreover, the court observed that in a previous 15-
year period of state judicial service it never had seen a case with so
many narcotics deliveries. The court also noted that within four
months of being released from state prison Colon resumed his illegal
drug trafficking. Furthermore, the court viewed it as likely that, when
released, Colon would go back into the narcotics business.

        Notwithstanding the court’s concern regarding Colon’s history
and prospects, it would not treat Colon as a career offender. Thus,
though the court would not limit the sentence to the statutory
mandatory minimum of 120 months, it imposed a 180-month
custodial term, a 50% increase over what the statute required but far
less than the court would have imposed had it treated Colon as a
career offender. Of course, inasmuch as a criminal history category
of VI (the highest sentencing category that the guidelines provide)
when applied to a total offense level of 25 yields a range of 110 to
137 months, the court imposed a sentence that was a departure
beyond that yielded by any guideline sentencing category once it
rejected using the career offender category for Colon.1

        After Colon appealed, the Supreme Court decided Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004). That case, though
arising under a state sentencing system, was significant in this federal
prosecution as its reasoning cast doubt on the validity of the federal
sentencing guidelines. Consequently, after Blakely, Colon moved in
this court to amend his appeal so that he could assert a claim under
that case. In response to his motion, we remanded the case for
resentencing so that the district court initially could consider the
application of Blakely. In remanding we directed that the district
court should reconsider any upward departure by using the ratcheting
procedure that we set forth in United States v. Kikumura, 918 F.2d
1084, 1110-19 (3d Cir. 1990), though we did not cite that case. See
also United States v. Hickman, 991 F.2d 1110, 1113-14 (3d Cir.
1993).2


       1
         The court also imposed a fine and special assessment at the
original sentencing and the resentencing but they are not at issue on this
appeal.
       2
        The order recited:


                                    3
        As it happened, however, before the district court resentenced
Colon the Supreme Court decided Booker which changed the
application of the federal guidelines from being mandatory to being
advisory. As we recognized after Booker in United States v. Cooper,
437 F.3d 324, 331 (3d Cir. 2006), sentences now must be reasonable
taking into account all of the factors in 18 U.S.C. § 3553(a) (“section
3553(a)”) of which the now advisory guidelines are but one. Thus,
after Booker, the guidelines are, in a sense, doubly diminished in
significance, first because they are only advisory, and second because
the courts must give increased attention to the other sentencing
factors in section 3553(a).

        Notwithstanding our directions, the district court, in fact, did
not ratchet up the sentence in Kikumura-like fashion. Instead, it
based its sentence on all the section 3553(a) sentencing factors,
particularly Colon’s criminal history, and again imposed a 180-month
custodial term to be followed by an 8-year term of supervised
release.3 This sentence took into account the April 11, 2002 cocaine
delivery even though the court previously had dismissed the delivery
count reflecting it. Colon has appealed again.4



                           II. DISCUSSION


              The foregoing motion to amend appeal is denied
       without prejudice. This case is remanded to the District
       Court for resentencing.        The District Court, in
       resentencing, shall consider the motion to raise Blakely
       issues in the first instance and shall reconsider the
       upward departure under § 4A1.3 of the U.S. Sentencing
       Guidelines through application of the ratcheting
       procedure.
       3
         Ordinarily, of course, on a remand an inferior court is obliged
to follow the superior court’s mandate, Delgrosso v. Spang & Co., 903
F.2d 234, 240 (3d Cir. 1990), but here the district court faced a special
situation in view of the Supreme Court’s opinion in Booker filed
between the time of the remand and the resentencing. In these unusual
circumstances, we do not fault the district court for not following our
direction to employ a ratcheting process.
       4
       The district court had jurisdiction under 18 U.S.C. § 3231 and
we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                   4
        Colon makes three contentions on this appeal: (1) the court
erred in finding that the April 11, 2002 one-kilogram delivery was
within his relevant conduct and properly was included in the
computation of his base offense level; (2) the court’s “upward
departure”5 did not follow the required ratcheting procedure and was
not reasonable in the circumstances of the case; (3) the court erred in
making findings of fact about his criminal history when he refused to
stipulate to that history and a jury did not make a finding as to it. We
deal with these contentions in the order that he has presented them.
Appellant’s br. at 1.

        The contention with respect to the one-kilogram delivery on
April 11, 2002, is significant because if the court had excluded it from
its computations Colon’s total offense level would have been reduced
by 2 levels from 25 to 23.6 Colon contends that he is not responsible
for that delivery because he was not present when it was made and
could not have foreseen that it would be made. He explains that he
did arrange a meeting between a confidential informant and his co-
defendant that was held on March 27, 2002, for a one-kilogram
delivery but that the co-defendant did not make a delivery on that day.
Moreover, Colon, was not present at the meeting. Thus, while he
acknowledges that he would have been responsible for a delivery on
March 27 if there had been one, he claims that he was not responsible
for the delivery two weeks later. He succinctly puts the matter as
follows: “As such, he could not be held responsible for anything that
was said or agreed to between the [confidential informant] and his
Co-defendant on March 27, 2002.” Appellant’s br. at 9-10.

        We reject this contention. The court, of course, was
authorized to make the factual finding holding Colon responsible for
the delivery, particularly inasmuch as the historical facts supporting
the finding are not in dispute and Colon does not contend to the
contrary. See United States v. Mack, 229 F.3d 226, 232-33 (3d Cir.
2000). Thus, the matter gets down to the question of whether the
finding that he was responsible for the April 11, 2002 one-kilogram


       5
        Colon used the term “upward departure.” Actually the court did
not depart from the guidelines range at the resentencing.
       6
         Of course, it is possible that even if the court had excluded the
one-kilogram April 11, 2002 delivery in making its offense level
calculations it would have imposed the same sentence but we cannot be
sure that it would have done so.

                                    5
delivery was clearly erroneous. See United States v. Yeung, 241 F.3d
321, 322 (3d Cir. 2001). Plainly it was not and, indeed, would
survive even plenary review on the basis of Colon’s admissions. The
delay in the one-kilogram cocaine transaction for two weeks after
March 27 does not diminish Colon’s responsibility for it as the
delivery grew out of Colon’s introduction of his co-defendant and the
confidential informant for the purpose that was consummated on
April 11, 2002. The situation was not one in which there was an
intervening event between Colon’s conduct and the delivery such that
he should be absolved of responsibility for the April 11, 2002
delivery. Rather, there merely was a delay and a short one at that.

        This case clearly comes within U.S.S.G. § 1B1.3(a)(1)(B)
which provides that the base offense level shall be determined on the
basis of, inter alia,

       in the case of a jointly undertaken criminal activity (a
       criminal plan, scheme, endeavor, or enterprise
       undertaken by the defendant in concert with others,
       whether or not charged as a conspiracy), all reasonably
       foreseeable acts and omissions of others in furtherance
       of the jointly undertaken criminal activity, that
       occurred during the commission of the offense of
       conviction, in preparation for that offense, or in the
       course of attempting to avoid detection or
       responsibility for that offense.

We think that a serious argument cannot be made that the delay of a
mere two weeks in completing a transaction for which Colon
acknowledges he would have been responsible if completed at the
time previously contemplated somehow means that he is not
responsible for the delivery on the theory that the delayed
consummation of the transaction was not reasonably foreseeable.
After all, there frequently are delays in the completion of business
transactions, legal or illegal. Though a court might have disregarded
Colon’s initial participation in the transaction in determining if he
was responsible for its consummation at some remote point, the delay
for two weeks for the delivery does not approach that point, wherever
it may have been, and therefore the court correctly included the one-
kilogram delivery on April 11, 2002, in computing Colon’s offense
level.




                                  6
        We also reject Colon’s ratcheting argument.7 While it is true
that the guidelines remain “a natural starting point for the
determination of the appropriate level of punishment for criminal
conduct,” Cooper, 437 F.3d at 331, that circumstance does not mean
that a court must build a sentence on the guidelines and work from
there to such a degree that the now advisory guidelines tie the court’s
hands and, de facto, again become mandatory. We recognize that
prior to Booker, we required a district court to use a ratcheting
procedure to grant an upward departure based on a defendant’s
criminal history. See Kikumura, 918 F.2d at 1110-19; Hickman, 991
F.2d at 1113-14. Though in United States v. King, we indicated that
ratcheting is still necessary to determine the propriety of granting an
upward departure in calculating a guidelines sentence, 454 F.3d 187,
193 (3d Cir. 2006), that language is not controlling here because of
the particular circumstances of this case.

         A district court need not rely on upward departures to
sentence a defendant above the recommended guidelines range.
When imposing such a sentence, a district court only need state on the
record what factors it is considering. Inasmuch as we do not require
any formulaic statement of reasons for imposing the final sentence,
we will uphold an above-the-guidelines sentence so long as it is
reasonable and the district court’s statement of reasons supports it.
Therefore, if a district court is sentencing above the guidelines range,
as it did in this case, based on the section 3553(a) factors without
granting a departure from the guidelines range, it is not bound by the
ratcheting procedures we set forth in Kikumura and Hickman.8

         The fact is that when a court sentences post-Booker and views
all of the section 3553(a) factors the guidelines range is simply one


       7
        We regard this argument as raising a question of law and
exercise plenary review in considering it. See United States v. Lloyd,
469 F.3d 319, 320 (3d Cir. 2006); United States v. Barbosa, 271 F.3d
438, 452 (3d Cir. 2001).
       8
         The court would have been required to use the ratcheting
procedure if it had made a traditional departure from the guidelines at
step two in the three-step sentencing process as noted in United States
v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). But the court did not make
a departure and did not rule on the government’s departure motion. In
the particular circumstances of this case we view the court’s action as a
de facto denial of the government’s motion for an upward departure.

                                   7
factor for it to consider in arriving at the sentence. The guidelines
range may suggest the imposition of a certain sentence of which the
court should be aware but other factors may point to a higher or lower
sentence. Consequently, so long as the court takes each of “the
factors into account in sentencing,” Cooper, 437 F.3d at 329, it may
impose a sentence in excess of the top of the range, provided the
sentence is within the statutory range and is reasonable. Here
notwithstanding the sentence being far in excess of the top of the
sentencing range it was reasonable. See King, 454 F.3d at 195 (“That
the resulting sentence was nearly double the top of the Guidelines
range does not make it per se unreasonable.”) After all, Colon
himself explains that he “was engaged in drug transactions for several
years in which he made hundreds of sales to undercover agents and
informants.” Appellant’s br. at 14 n.3-5.

        In reaching our conclusions with respect to Colon’s ratcheting
argument we have not overlooked our direction in United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006), which cited King in
holding that a court post-Booker as a part of the sentencing process
calculate a defendant’s guidelines sentence as it would have prior to
Booker. See also United States v. Jackson, 467 F.3d 834, 873 (3d
Cir. 2006). The district court in this case was well aware of the
sentencing range but for reasons that it explained it imposed a
sentence beyond the guidelines range as the top of the range was
grossly inadequate for the reasons that the court expressed. We will
not find that it erred in what it did and require that the court sentence
Colon for a third time.

        Colon’s contention that the court erred in making findings of
fact about his criminal history when he refused to stipulate to the
history and a jury did not make a finding with respect to it seems
almost unreal because he does not base it on his actual criminal
history.9 Colon explains that the court assigned 3 points for prior
convictions, 2 points because he committed the offenses involved
here while on parole and 1 point because he committed the offenses
here within two years of being released from prison. Therefore, he
had 6 points which resulted in a criminal history category of III. With
respect to his prior record he explains that he “had a total of four prior
drug felony convictions which were consolidated for plea and


       9
        We are exercising plenary review on this legal question. See
United States v. Lloyd, 469 F.3d 319, 320 (3d Cir. 2006); United States
v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2001).

                                    8
sentencing.” Appellant’s br. at 19 & n.11. Thus, pursuant to
Application Note 3 of U.S.S.G. § 4A1.2 the court counted only one
conviction, a determination that yielded 3 points under U.S.S.G. §
4A1.1. While he does not deny that he had the four convictions, he
indicates that he “did not stipulate to the prior record.” Appellant’s
br. at 19 n.11. He then goes on to explain that the court found that his
criminal history was not reflected adequately in his Criminal History
Category of III. His complaint seems to be that in the absence of a
stipulation or a jury finding the court could not find that he had the
prior convictions even though he, in fact, had them. It is that
approach which leads us to conclude that his argument seems unreal.

         As one might anticipate from our comments to this point, we
reject Colon’s contention regarding his criminal history. To start
with, in point of fact Colon did stipulate to his record in the district
court because his second amended sentencing memorandum for the
resentencing recites that “[t]he Defendant has four prior drug
convictions, as found by the [presentence report.]” Supp. app. at 5.
In any event, under the law as established by the Supreme Court the
district court could make the findings with respect to Colon’s record.
See Booker, 543 U.S. 220, 125 S.Ct. 738; Almendarez-Torres v.
United States, 523 U.S. 224, 118 S.Ct. 1219 (1998). That law binds
us. United States v. Ordaz, 398 F.3d 236, 240-41 (3d Cir. 2005).



                          III. CONCLUSION

        We conclude this opinion with the following observation
regarding Colon. An examination of this case makes it clear that for
the foreseeable future Colon either will be on the street trafficking in
narcotics or will be in prison. It is not possible to study the record
here and come to any other conclusion. In the circumstances, the
sentence was reasonable and necessary to protect the public. See
section 3553(a)(2)(c).

       For the foregoing reasons the judgment of conviction and
sentence entered July 27, 2005, will be affirmed.




                                    9
