12-655-cr
United States v. Pacheco

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
25th day of February, two thousand and thirteen.

Present:
                 ROBERT D. SACK,
                 PETER W. HALL,
                 DEBRA ANN LIVINGSTON,

                        Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

        v.                                                           12-655-cr

ORLANDO PACHECO, aka Orlando Pacheco-Gonzalez, aka
Nacho, aka Tio,

                           Defendant-Appellant.

____________________________________________________

FOR APPELLANT:                    William E. Kraham, Brattleboro, Vermont.

FOR APPELLEE:                     Craig S. Nolan and William B. Darrow, Assistant United States
                                  Attorneys, for Tristram J. Coffin, United States Attorney,
                                  Burlington, Vermont.


                                                   1
       Appeal from a judgment of the United States District Court for the District of Vermont

(Murtha, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Orlando Pacheco appeals from a judgment entered on February 6,

2012, sentencing him principally to 240 months’ imprisonment following his conviction by a

jury of one count of conspiracy to distribute five kilograms or more of cocaine, 21 U.S.C.

§§ 846, 841(a)(1), and 841(b)(1)(A). Prior to trial, the parties engaged in plea negotiations in

which the government offered to forgo filing a notice of intent to rely on a prior felony drug

conviction pursuant to 21 U.S.C. § 851—which, in the event Pacheco were convicted would

have resulted in a mandatory minimum sentence of twenty years’ imprisonment, 21 U.S.C.

§ 841(b)(1)(A)—in exchange for Pacheco’s pleading guilty to the one-count indictment. Despite

the government’s notifying Pacheco that in the event he rejected its offer it would file such a

notice, Pacheco elected to reject the offer and proceed to trial. The government did in fact file

such a notice. Following a jury trial in which Pacheco was convicted of the single conspiracy

count charged, the district court sentenced defendant to the enhanced statutory minimum penalty

of 240 months’ imprisonment. Beyond this brief background of the proceedings below, we

assume the parties’ familiarity with the procedural history and facts of this case.

       On appeal, Pacheco argues that the government’s filing of a § 851 notice, and the

enhanced sentence that resulted therefrom, was the result of prosecutorial vindictiveness such

that he was denied due process of the law. The district court considered and rejected this

argument prior to sentencing. “We review a district court's factual findings on prosecutorial




                                                 2
vindictiveness for clear error, and its legal conclusions de novo.” United States v. Stewart, 590

F.3d 93, 122 (2d Cir. 2009).

       “[A]n indictment will be dismissed [1] if there is a finding of ‘actual’ vindictiveness, or

[2] if there is a presumption of vindictiveness that has not been rebutted by objective evidence

justifying the prosecutor's action.” United States v. Johnson, 171 F.3d 139, 140 (2d Cir. 1999).

A defendant is generally not entitled to a presumption of prosecutorial vindictiveness in a pretrial

setting. Stewart, 590 F.3d at 122. Although this principle is not categorical, Pacheco has not

offered any reason for us to depart from it, and we therefore adhere to the general rule. See id. at

123. Pacheco may succeed on his vindictiveness argument only if he can establish actual

vindictiveness.

       To establish actual vindictiveness, a defendant must show “that a prosecutor's charging

decision [is] a direct and unjustifiable penalty, that resulted solely from the defendant's exercise

of a protected legal right.” Id. (internal quotation marks omitted). The Supreme Court has held

that a prosecutor does not offend the Constitution by threatening, and then proceeding, to reindict

a defendant on charges carrying a stiffer penalty than those in the original indictment to which

the defendant has refused to plead guilty. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).

The Court noted that “in the ‘give-and-take’ of plea bargaining, there is no . . . element of

punishment or retaliation so long as the accused is free to accept or reject the prosecution’s

offer.” Id. Given that “the initial charges filed by a prosecutor may not reflect the extent to

which an individual is legitimately subject to prosecution[,] . . . the 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 charging decision are unjustified.” United States v.

Goodwin, 457 U.S. 368, 382-83 (1982).




                                                  3
       In this case, it is undisputed that the government would not have violated Pacheco’s Fifth

Amendment due process rights if, immediately after indictment and without first offering

Pacheco the opportunity to plead guilty to the indictment and be subject to a significantly lower

statutory minimum sentence, it had filed its § 851 notice identifying one of Pacheco’s prior drug

convictions. Indeed, it appears that the government could have stated its intent to rely on both of

Pacheco’s prior felony drug convictions, thus exposing Pacheco to a mandatory life sentence

were he convicted. See 21 U.S.C. § 841(b)(1)(A). The government’s decision at the outset to

forgo filing any § 851 notice and use the threat of such filing as a bargaining chip in plea

negotiations does not render unconstitutional the decision to file a § 851 notice after Pacheco

repeatedly declined to plead guilty to the lesser charges. We cannot conclude, based on the

record before us, that the government’s decision to rely on one of Pacheco’s prior felony drug

convictions, as it was permitted to do under § 851, was the result of prosecutorial vindictiveness.

       We have considered all of Pacheco’s remaining arguments and find them to be without

merit. The judgment of the district court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




                                                 4
