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


6-12-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 00-2424




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Recommended Citation
"USA v. Criniti" (2002). 2002 Decisions. Paper 355.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/355


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                                  NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                Nos. 00-2424, 01-1321, and 01-1673


                     UNITED STATES OF AMERICA

                                                 v.

                        JOSEPH A. CRINITI,

                                                 Appellant


         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                   (D.C. Crim. No. 00-00122-1)
           District Judge: Honorable Charles R. Weiner


                      Argued:    May 20, 2002

     BEFORE: BECKER, Chief Judge, GREENBERG, Circuit Judge,
     and BARZILAY, Judge, U.S. Court of International Trade*

                     (Filed:    June 12, 2002)




*Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting
by designation.




                       OPINION OF THE COURT


GREENBERG, Circuit Judge.

      These matters come on before this court on Joseph Criniti’s appeals from a
judgment of conviction and sentence, an order denying his motion to vacate, set aside or
correct his sentence under 28 U.S.C. 2255, and an order granting the government’s
motion for the forfeiture of substitute assets. The conviction was for conspiracy to
distribute marijuana. For the reasons we set forth below, we will affirm the judgment
and orders of the district court.
      From 1993 to 1996, Criniti obtained large amounts of marijuana from co-
conspirator Clifton Cato which Criniti and co-defendants Pasquale Bove and Mark
Hauad distributed throughout the Philadelphia area. This activity led to his indictment
on March 8, 2000, for conspiracy to distribute more than 1,000 kilograms of marijuana in
violation of 21 U.S.C. 846. Section 846 provides that a person who conspires to
commit the offense of distribution of a controlled substance is subject to the penalties for
the substantive offense that was the object of the conspiracy. The penalty for the
substantive offense in this case was derived from 21 U.S.C. 841(b). Section
841(b)(1)(C) provides for a maximum term of 20 years imprisonment for offenses
dealing with an unspecified amount of Schedule I and II controlled substances (including
marijuana) but further provides that where certain specified quantities of drug are
involved, the maximum may be increased under section 841(b)(1)(B) and section
841(b)(1)(A) or decreased under section 841(b)(1)(D). As significant here, under section
841(b)(1)(D) in some circumstances the imprisonment term in a marijuana case is limited
to five years.
      On May 5, 2000, Criniti pled guilty and at that time a written plea agreement
that he had executed was made part of the record. The agreement stipulated that he had
distributed "at least 700 kilograms but less than 1000 kilograms of marijuana" and
provided for him to forfeit $600,000 and certain real property representing proceeds
and/or facilitating property. At the change of plea hearing, Criniti indicated that the
government’s factual proffer, which included allegations that he was responsible for 700
to 1000 kilograms of marijuana, was substantially correct.
      In the interim between the entry of the guilty plea and the imposition of sentence
on August 7, 2000, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348 (2000). In Apprendi, the Court 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." Id. at
490, 120 S.Ct. 2362-63. Neither Criniti nor the government suggested at the sentencing
that Apprendi was germane to the proceedings. The court at the hearing determined that
the sentencing range was 87 to 108 months, a determination that included a 2-level
upward adjustment for a leadership role under U.S.S.G. 3B1.1(c), but it departed
downwards to 72 months when imposing sentence.
      Following his sentencing, Criniti filed a direct appeal, docketed at No. 00-2424,
but while the appeal was pending, he filed a motion in the district court to vacate, set
aside or correct his sentence under 28 U.S.C. 2255. In his section 2255 motion, Criniti
argued, inter alia, that his attorney at sentencing was ineffective for failing to advise him
of Apprendi’s possible implications concerning the quantity of drugs on which the court
based his sentence. He also challenged the court’s determination that he had a leadership
role in the offense which deprived him of the benefit of safety valve provisions that can
lead to a reduced sentence. On October 11, 2000, we stayed the direct appeal pending
disposition of Criniti’s section 2255 motion.
      On December 7, 2000, the government filed a motion in the district court
seeking an order for forfeiture of substitute assets which the district court subsequently
granted. Thereafter, Criniti filed a notice of appeal from this order, docketed at No. 01-
1321, arguing that the forfeiture amount violated Apprendi.
      On February 21, 2001, the district court held an evidentiary hearing on Criniti’s
section 2255 motion, following which on March 9, 2001, it denied the motion. On
March 16, 2001, Criniti filed a notice of appeal of this order, docketed at No. 01-1673.
On April 30, 2001, the district court issued a certificate of appealability on the issues of
"whether counsel was constitutionally ineffective for failing to raise an Apprendi
argument regarding the quantity of drugs upon which the defendant’s sentence was
calculated and whether defendant was a leader of the drug conspiracy." Subsequently,
Criniti moved to consolidate the three appeals and on February 1, 2002, we granted the
motion and by this opinion dispose of all three appeals.
      On these appeals, Criniti focuses on three points: (1) that Apprendi renders the
sentencing enhancements of 21 U.S.C. 841 unconstitutional; (2) that the district court
erred in determining the quantity of marijuana for which Criniti was responsible; and (3)
that, consequently, the amount of assets to be forfeited is too high. Of course, these
issues relate to the substance of the issues Criniti thinks his attorney should have raised.
Criniti has not briefed the issue of whether he was a leader of the drug conspiracy,
though he raised that point in the district court and the certificate of appealability
included the issue.
      Criniti first contends that we should find that the sentencing enhancement
provisions of 21 U.S.C. 841 are facially unconstitutional under Apprendi. Thus, in his
view, his sentence constitutionally was required to be limited to five years, the lowest
statutory maximum in a marijuana case, 21 U.S.C. 841(b)(1)(D), regardless of the
circumstance that the court factually found the enhancement to be applicable. In support
of his argument Criniti cites a panel decision from the Court of Appeals for the Ninth
Circuit. However, that court withdrew the decision, see United States v. Buckland, 259
F.3d 1157 (9th Cir. 2001), vacated by 265 F.3d 1085 (9th Cir. 2001), and now stands
with this court, and with every other court of appeals that has considered the issue, in
holding that Apprendi did not render section 841 unconstitutional. See United States v.
Buckland, 277 F.3d 1173, 1177 (9th Cir. 2002) (en banc), amended by 289 F.3d 558 (9th
Cir. 2002) (en banc), cert. denied 2002 WL 764223 U.S. (May 28, 2002); United States
v. Kelly, 272 F.3d 622 (3d Cir. 2001).
      In Kelly we recognized that section 841 "’does not say who makes the findings
or which party bears what burden of persuasion. Instead the law attaches effects to facts,
leaving it to the judiciary to sort out who determines the facts, under what burden.’" Id.
at 624 (quoting United States v. Brough, 243 F.3d 1078, 1079 (7th Cir.), cert. denied,
122 S. Ct. 203 (2001)). Thus, rather than rendering section 841 unconstitutional,
Apprendi simply holds that the due process clauses "’make the jury the right decision
maker (unless the defendant elects a bench trial), and the reasonable-doubt standard the
proper burden, when a fact raises the maximum lawful punishment.’" Kelly, 272 F.2d at
624 (quoting Brough, 243 F.3d at 1079). Of course, in this case inasmuch as Criniti
pleaded guilty, no jury ever was selected.
      Criniti next argues that his sentence of 72 months and forfeiture of $600,000
violated Apprendi in that the district court did not properly find that he was responsible
for an amount of marijuana sufficient to justify the imposition of his penalty. He argues
that there is insufficient evidence to support the district court’s findings and that he
should be resentenced to a term of imprisonment not greater than five years under 21
U.S.C. 841(b)(1)(D), which deals with cases involving less than 50 kilograms of
marijuana. Moreover, he contends that he should not be required to forfeit $600,000.
      At the February 21, 2001 hearing, the government presented Cato’s testimony to
demonstrate that it could prove beyond a reasonable doubt that Criniti’s offense involved
more than the 50 kilograms of marijuana necessary to trigger the applicability of the 20-
year maximum penalty under 21 U.S.C. 841(b)(1)(C). Cato testified that from 1993
to 1996 he distributed between 3,500 and 4,000 pounds of marijuana to Criniti. He
indicated that each transaction involved between 25 to 200 pounds of marijuana and
described several deliveries as "carloads" full. On cross-examination, Cato was
confronted with a written document that referenced a single transaction that involved 35
pounds of marijuana.
      The district court found Cato’s testimony credible. It stated "[i]f . . . one
transaction involved thirty-five pounds of marijuana, it is not unreasonable to extrapolate
that over the three years of the conspiracy the total amount of marijuana distributed more
than reached the 700 to 1000 [kilograms] recited in the plea agreement." The court
concluded that Criniti’s counsel was not ineffective for failing to raise an Apprendi issue
at sentencing for, if he had, the government would have shown, beyond a reasonable
doubt, that the quantity of marijuana was "at least as much as admitted by Criniti in the
plea agreement and during the change of plea colloquy." Id. at 248.
      The court noted that in his plea agreement, Criniti stipulated that he had
distributed at least 700 to 1000 kilograms of marijuana, that the plea agreement was
made part of the record at the change of plea hearing, and that when the court asked
Criniti if the government’s proffer, which included allegations that the amount of
marijuana was between 700 and 1000 kilograms, was substantially correct, Criniti
responded "yes, they are correct." As in United States v. Vazquez, 271 F.3d 93 (3d Cir.
2001) (en banc), petition for cert. filed (U.S. Mar 8, 2002) (No. 01-9014), Criniti
presented no challenge to, or affirmative evidence against, the government’s evidence of
drug quantity. See id. at 104-05 (finding that the defendant had shown no effect on his
substantial rights, and no violation that seriously affected the fairness, integrity or public
reputation of the judicial proceedings); see also United States v. Cotton, 122 S.Ct. 1781
(2002). The court concluded, beyond a reasonable doubt, that Criniti’s offense involved
at least 700 kilograms of marijuana.
      Because there is sufficient evidence to support the conclusion that Criniti was
responsible for at least 50 kilograms of marijuana, the district court properly sentenced
Criniti to 72 months imprisonment under 21 U.S.C. 841(b)(1)(C) which provides for a
20 year maximum for unspecified quantities of drugs, rather than under section
841(b)(1)(D), which provides for a five-year maximum for cases involving less than 50
kilograms of marijuana.
      Finally, without citing any authority, Criniti argues that we should apply
Apprendi to find that the district court improperly ordered him to forfeit substitute assets
to satisfy, in part, his agreement to forfeit $600,000 in drug proceeds.
      Other courts of appeals have considered Apprendi challenges to criminal
forfeiture and determined that Apprendi does not apply. See United States v. Vera, 278
F.3d 672, 673 (7th Cir. 2002) ("[d]etermining the forfeitable proceeds of an offense does
not come within Apprendi’s rule, because there is no ’prescribed statutory maximum’
and no risk that the defendant has been convicted de facto of a more serious offense"),
petition for cert. filed (Apr. 22, 2002) (No. 01-9972); United States v. Cabeza, 258 F.3d
1256, 1257 (11th Cir. 2001) (stating that "[b]ecause forfeiture is a punishment and not an
element of the offense, it does not fall within the reach of Apprendi"); United States v.
Corrado, 227 F.3d 543, 550-51 (6th Cir. 2000) (Apprendi does not apply to forfeiture).
See also United States v. Syme, 276 F.3d 131, 159 (3d Cir. 2002) (concluding that
Apprendi does not apply to restitution orders under 18 U.S.C. 3663).
      Thus, Apprendi does not apply here. Even if it did, there would be no error
because Criniti stipulated to the forfeiture amount in his plea agreement and the district
court heard evidence and made factual findings that the government proved the drug
quantity supporting the forfeiture amount beyond a reasonable doubt.
      For the foregoing reasons, the judgment of conviction and sentence of August 9,
2000, and the orders of December 28, 2000, and March 9, 2001, will be affirmed.




TO THE CLERK:
      Please file the foregoing not precedential opinion.
                                           s/s Morton I. Greenberg
                                                          Circuit Judge


DATED:   June 12, 200
