                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-1-2002

USA v. Colon
Precedential or Non-Precedential:

Docket 0-3744




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                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                  No.   00-3744

                           UNITED STATES OF AMERICA,

                    Appellee
                                        v.

                                WILLIAM COLON,

       Appellant


           On Appeal from the Judgment of Sentence Entered in the
                  United States District Court
                 for the Eastern District of Pennsylvania
                          Crim. No. 98-00587-005
                     District Judge: Hon. Anita B. Brody

               Submitted Pursuant to Third Circuit LAR 34.1
                       February 12, 2002
              Before: Mansmann, McKee and Barry, Circuit Judges

                          (Filed: February 26, 2002)


                               MEMORANDUM OPINION


McKee, Circuit Judge.
William Colon was convicted of various charges related to his involvement
in a
cocaine distribution conspiracy, and sentenced to 360 months
incarceration. On appeal he
argues that the prosecution considered the race of a perspective juror in
exercising two
peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79
(1986); and that
the district court improperly enhanced his sentence based upon 68
kilograms of cocaine
that were attributed to him in violation of Apprendi v. New Jersey, 530
U.S. 466 (2000).
For the reasons that follow, we will affirm.
                               I.
As we write only for the parties, a recitation of the facts is not
necessary except
insofar as is necessary to our brief discussion. Colon argues that the
prosecution's use of
peremptory challenges to strike two Black venirepersons - Juror no. 22 and
Juror no. 41 -
was motivated by the race of those potential jurors, and therefore
improper under Batson.
The prosecution explained that it struck Juror No. 22 because he was a
social worker, and
because he appeared openly hostile to jury service. Colon contends that
striking a juror
due to his line of work should invite special scrutiny from the courts.
He also takes
exception with the prosecution's claim that Juror no. 22 was hostile to
jury service.
The prosecution explained that it struck Juror no. 41 because she worked
for a city
councilwoman. Colon argues that the transcript states "indiscernible" for
part of the
prosecution's explanation and thus it is unclear from the record why
working for the
particular councilwoman would justify a peremptory strike. He argues that
the district
court should have inquired into the particular juror's duties, and
relationship with the
councilwoman, and suggests that the facially neutral explanation for
striking both these
jurors was merely a pretext for the kind of bias that Batson prohibits.
In Batson, the Supreme Court held that the Equal Protection clause forbids
a state
from using peremptory strikes to remove jurors from the jury pool solely
based upon race.
See Batson, 476 U.S. at 89. A defendant seeking to establish a Batson
violation must,
therefore, establish a discriminatory intent on the part of the
prosecutor. See Hernandez v.
New York, 500 U.S. 352, 360 (1991), citing Arlington Heights v. Metro.
Hous. Dev.
Corp., 429 U.S. 252, 264-65 (1977).
           [T]he defendant must make a prima facie showing that the
           prosecutor has exercised peremptory challenges on the basis
           of race. Second, if the requisite showing has been made, the
           burden shifts to the prosecutor to articulate a race-neutral
           explanation for striking the jurors in question. Finally, the
           trial court must determine whether the defendant has carried
           his burden of proving purposeful discrimination.

Hernandez, 500 U.S. 358-59 (citations omitted); see also Riley v. Taylor,
277 F.3d 261,
275 (3d Cir. 2001) (en banc).
     Therefore, once a defendant establishes a prima facie case of a
Batson violation,
the inquiry "focuses on the facial validity of the prosecutor's
explanation." United States
v. Casper, 956 F.2d 416, 418 (3d Cir. 1992).   "A neutral explanation. . .
means an
explanation based on something other than the race of the juror."
Uwaezhoke, 995 F.2d at
392, quoting Hernandez, 500 U.S. at 360. A prosecutor must provide a
"clear and
reasonably specific" reason for his/her decision, in order to rebut the
defendant's charge
of bias. Batson, 476 U.S. at 98 n.20. However, the explanation need not
rise to the level
of constituting "just cause." Casper, 956 F.2d at 418, citing Batson, 476
U.S. at 97.
Rather, a proffered explanation will be deemed race-neutral unless it
inherently reveals
discriminatory intent. See Casper, 956 F.2d at 418, citing Hernandez, 500
U.S. at 360.
     Moreover, inasmuch as litigators will rarely, if ever, reveal direct
evidence of
discriminatory intent, the trial court's analysis of the prosecutor's
explanation will largely
rest on an evaluation of the credibility and demeanor of the prosecutor.
Since first-hand
observations are critical, the trial court is afforded great deference in
its findings. See id.
at 418, citing Hernandez, 500 U.S. at 364.
     Based upon our review of the record here, we can not conclude that
the district
court's factual determination of the prosecutor's motivation in striking
these two jurors
was clearly erroneous. During voir dire, Juror no. 22 stated: "I'm a
contract DHS,
Department of Human Services worker. I work with probably the negative
side of this. I
have 13 client mothers who are all on the verge of losing their kids
because of drugs and
alcohol. That's the work I do everyday." Supp. App. at 2.     The juror's
occupation
therefore could certainly suggest a mind set that would cause a prosecutor
to exercise a
peremptory strike. See e.g. United States v. Smith, 223 F.3d 554, 569
(7th Cir. 2000);
United States v. Jones, 195 F.3d 371, 381 (8th Cir. 1999); United States
v. Griffin, 194
F.3d 805, 825 (7th Cir. 1999).
     Moreover, although Colon takes exception to the prosecutor's
explanation that
Juror no. 22 was "hostile," the record confirms that the juror did
express reservations
about jury service and told the court that serving would be a "hardship
for me because by
law I'm required to see my clients at least so many hours per week."
Supp. App. at 3.
Accordingly, we find that the district court did not clearly err in
accepting the
prosecution's explanation for striking Juror no. 22.
     The record contains the following explanation for striking Juror no.
41:
                             [The Prosecutor]:     Your Honor, she was
stricken for who
                             she works for a councilwoman who
                             (indiscernible).
                             The Court:          Okay, what's your
response?
                             [Defense Counsel]:    Your Honor, I don't know
                             Councilwoman Tasbo.    I can't speak to
                             her position on the   police specifically at
                             this point.
                             [The Prosecutor]:     That was the reason.
                             The Court:            Well, I think that that
certainly is
                             (indiscernible). I have no problem unless
                             you have some reason, the only thing you
                             know about her (indiscernible)
                             Councilwoman Tasbo, then I'd take into
                             (indiscernible).


Supp. App. at 7-8. Although our inquiry would certainly be facilitated by
a more
complete transcript of the exchange, we are satisfied that proffered
explanation satisfies
the requirements of Batson. It is uncontroverted that the prosecutor
exercised the strike
because the juror worked for a city councilwoman. Accordingly, we conclude
that
Colon's Batson challenge is meritless, and we will turn to Colon's claim
of an Apprendi
violation.
                               II.
     Colon argues that the quantity of drugs the district court attributed
to him was a
disputed issue of fact that increased his sentence beyond the maximum
term. Colon
contends that under Apprendi, the amount of drugs should therefore have
been an issue
submitted to a jury and proved beyond a reasonable doubt. Colon admitted
that he was
involved in a conspiracy to distribute cocaine, but argues that his
involvement lasted
approximately eleven months and that he was only responsible for 48 to 49
kilograms of
cocaine. The district court, however, agreed with the findings in the
Presentence
Investigation Report, and found that Colon's involvement in the conspiracy
lasted for 17
months, and that he was therefore responsible for 68 kilograms of cocaine.
This
increased his base offense level under the Guidelines to 36. The court
then added 3
points for his involvement in a conspiracy with more than five people, and
another 2
points for using a firearm. The court gave Colon a 3 point downward
adjustment due to
acceptance of responsibility. The final offense level was therefore 38,
with a criminal
history category of V. The resulting sentencing range under the
Guidelines was 360
months to life imprisonment. The statutory maximum was 40 years. The
district court
sentenced Colon to 240 months as to Count I followed by 120 months on
Count III for a
total of 360 months of incarceration.
     Apprendi held 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." Apprendi, 530
U.S. at 490.
Apprendi, however, declined to address the applicability of its holding to
the Sentencing
Guidelines, stating that "[t]he Guidelines are, of course, not before the
Court. We
therefore express no view on the subject beyond what this Court has
already held."
Apprendi, 530 U.S. at 497. In United States v. Williams, 235 F.3d 858 (3d
Cir. 2000), we
squarely addressed that issue.   We held that Apprendi does not apply to
sentences under
the Guidelines. See Williams, 235 F.3d at 862. Colon now asks us to
overturn our
holding in Williams, or in the alternative distinguish it from his case.
We will not do
either.
     In Williams, we concluded that the Guidelines merely represent a
codification of a
judge's traditional discretion to adjust sentences within the prescribed
statutory terms.
See Williams, 235 F.3d at 862. Inasmuch as "application of the Sentencing
Guidelines. . .
does not implicate a fact that would increase the penalty of a crime
beyond the statutory
maximum, the teachings of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147
L. Ed.2d 435 (2000), are not relevant here." Id. at 863, quoting United
States v. Cepro,
224 F.3d 256, 268 n.5 (3d Cir. 2000).   In light of Williams, Colon's
Apprendi argument is
meritless. Moreover, the adjustments that the sentencing judge made to the
total base
level did not result in a sentence that exceeded the statutory maximum.
     Colon also argues that the district court impermissibly ordered his
sentences for
Count I and Count III to run consecutively. However, the sentencing
court's decision to
run sentences consecutively or concurrently is an exercise of discretion,
and it does not
implicate Apprendi. Colon's sentences did not exceed the statutory
maximum, and thus
Colon's Apprendi claim must fail.
     Accordingly, for all the reasons set forth herein, we will affirm the
convictions and
judgment of sentence.


TO THE CLERK:
Please file the foregoing memorandum opinion.

BY THE COURT:

_/s/Theodore A. McKee
     Circuit Judge
