US v. Jesus Antonio
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESUS ESTEVEZ ANTONIO, a/k/a Jesus Antonio Estevez, Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:06-cr-00500-CMH)
December 5, 2008
February 23, 2009
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Richard Donald Dietz, KILPATRICK & STOCKTON, L.L.P., Winston-Salem, North Carolina, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Adam Howard Charnes, KILPATRICK & STOCKTON, L.L.P., Winston-Salem, North Carolina, for Appellant. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Jesus Estevez Antonio (Estevez) appeals his sentence for distribution of crack cocaine and conspiracy to distribute powder cocaine on the grounds that the district court erred in treating the sentencing guidelines for crack cocaine as
mandatory. Estevez contends that he should be resentenced in light of Kimbrough v. United States, __ U.S. __, 128 S. Ct. 558 (2007), a case decided after he was sentenced by the district court. Kimbrough held that the crack sentencing guidelines, 128 S. Ct. at
"like all other Guidelines, are advisory only." 564.
We conclude that Estevez raised a Kimbrough-type objection
at his sentencing hearing, thereby preserving for appeal the argument that the crack guidelines are advisory. Because
Kimbrough requires that Estevez be resentenced, we vacate his sentence and remand for resentencing.
I. In October 2006 Estevez and his codefendant, Ruben
Chavez Paz, were arrested and charged in a criminal complaint with conspiracy to distribute cocaine. The substance seized
from Estevez and Chavez Paz when they were arrested appeared to the naked eye to be powder cocaine. Chavez Paz pled guilty to a
one-count information charging him with conspiracy to distribute powder cocaine in violation of 21 U.S.C. § 846; he was sentenced 2
to 70 months in prison.
After Chavez Paz's plea and sentence,
but before Estevez's indictment, government lab results showed that the cocaine seized from the defendants was actually crack cocaine. Thereafter, Estevez was indicted for conspiring to
distribute both powder and crack cocaine, see 21 U.S.C. § 846 (count 1); distributing 5 or more grams of crack cocaine, see id. § 841(a)(1) (count 2); distributing 50 or more grams of
crack cocaine, see id. § 841(a)(1) (count 3); and tampering with witnesses, see 18 U.S.C. §§ 1512(a)(2)(C), 1512(b)(3) (counts 4 and 5). The jury convicted Estevez on the charge of conspiracy
to distribute powder cocaine and the two charges of distributing crack cocaine; he was acquitted on the remaining charges. Estevez's presentence report calculated a guidelines range of 151 to 188 months in prison. At the sentencing hearing First, he
Estevez made two arguments relevant to this appeal.
contended that the district court should take into account the fact that his codefendant, Chavez Paz, had received a sentence
of 70 months and that it would be improper for him to receive a substantially higher sentence for engaging in identical conduct. Second, he pointed out that the U.S. Sentencing Commission was seeking would congressional the approval of guideline for amendments crack and that powder
Estevez's sentencing exposure on his crack At the time of
cocaine convictions illustrate the disparity. 3
Estevez's sentencing, for example, a defendant, like Estevez, convicted of distributing 5 grams of crack cocaine faced the same sentence as a defendant who distributed 500 grams of powder cocaine. This disparity had come to be known as the "100:1 The guidelines for
disparity" or the "crack/powder disparity."
crack cocaine have since been amended to reduce this disparity. U.S. Sentencing Commission Guidelines Manual (U.S.S.G.), supp. to app. C, amend. 706 (2007); see U.S.S.G. § 2D1.1 (2008). At the time of Estevez's sentencing, case law in this circuit did as not a permit basis a for district a court to use the below 100:1 the
guidelines range for crack cocaine offenses. Eura, 440 F.3d 625, 632-34 (4th Cir. 2006). the district court found that "the
United States v. In Estevez's case factors" for
Estevez's crack and conspiracy convictions had been "properly assessed at a range of 151 to 188 months," J.A. 56, and the court imposed a sentence of 151 months. The court did not
discuss the crack/powder disparity arguments made by Estevez. Estevez 2007, his trial appealed counsel his sentence, a and on November Anders 6, v.
California, 386 U.S. 738 (1967), stating that he believed that Estevez had no meritorious issues on appeal. 2007, the Supreme Court decided Kimbrough v. On December 10, United States,
which held that "it would not be an abuse of discretion for a 4
district defendant `greater purposes,
court that than even
particular a sentence
necessary' in a
§ 3553(a)'s Ct. at 575.
Kimbrough overruled United States v. Eura, which had made "the crack/powder disparity effectively mandatory." In January 2008 Estevez filed a Id. at 564. pro se brief We
challenging his sentence as inconsistent with Kimbrough.
ordered supplemental briefing on Kimbrough's effect on Estevez's appeal, and we twice appointed new counsel for him. The central
issue is whether we should order a new sentencing hearing to allow the district court to reconsider Estevez's sentence in light of Kimbrough.
II. The government argues that Estevez did not preserve a Kimbrough-type objection to the district court's treatment of the crack/powder guidelines disparity as mandatory. In order to
preserve a claim of error, a party must "inform the court -when the court ruling or order is made or sought -- of the action the party wishes the court to take." 51. Fed. R. Crim. P.
"While the Rule does not require surgical precision to
preserve error, the objection must be sufficient to `bring into focus the precise nature of the alleged error.'" Exxon Corp. v. 5
Amoco Oil Col., 875 F.2d 1085, 1090 (4th Cir. 1989) (quoting Palmer v. Hoffman, 318 U.S. 109, 119 (1943)). Estevez made two arguments at his sentencing hearing that, taken together, were sufficient to preserve for appeal a challenge guidelines. commensurate engaged in to the crack/powder disparity in the sentencing
First, he argued that he should receive a sentence with that of his codefendant, While this Chavez argument Paz, did who not
mention the 100:1 disparity in so many words, the difference in guidelines treatment for crack and powder cocaine offenses is in part the foundation for and the for the argument. between (70 One of the primary (151
conviction was for crack cocaine, while Chavez Paz's was for powder cocaine. This sentencing difference occurred despite the
fact that the pair engaged in the exact same criminal behavior. Estevez contends, therefore, that his request for parity in
sentencing with Chavez Paz should thus be viewed as an argument against treating powder and crack cocaine differently for
sentencing purposes. by the fact was that that
This argument is undercut to some extent the basic Paz reason was to for the difference with a in
argument was grounded in the 100:1 disparity. Estevez's position is bolstered by his second argument in district court. Commission Estevez to emphasized the the proposal by the
Sentencing disparity. consider
In doing so, he was asking the district court to Commission's proposal as confirmation that the
100:1 disparity was excessive and that a downward variance was warranted. district This placed the crack/powder disparity before the and was enough to bring into focus Estevez's
assertion that a sentence within the then-existing guidelines range for crack offenses was greater than necessary to achieve the goals of § 3553(a) in his case. In addition, Estevez's
lawyer acknowledged, in obvious recognition of Eura, that he was "preserv[ing] th[e] argument for Mr. Estevez." J.A. 48. The
government's response at the hearing reveals that it understood the gist of in Estevez's requesting argument. a lighter The government to said avoid that the
disparity, was "asking the Court to ignore the statutory scheme as it exist[ed]" at the time. Estevez's objection mandatory. to arguments the J.A. at 53-54. were sufficient for to crack preserve cocaine his as
Because Estevez preserved his objection, and because
Kimbrough now makes clear that it was error for the district 7
court to treat the crack cocaine guidelines as mandatory, the burden is on the government to establish that the error was harmless. See United States v. Robinson, 460 F.3d 550, 557 (4th The government has not met its burden because it
has not pointed to anything in the record to indicate that the district court would have imposed the same 151-month sentence on Estevez if it had had the benefit of Kimbrough at the time of sentencing. Estevez is therefore entitled to a new sentencing hearing, which will allow the district court to reconsider the sentence in light of Kimbrough. Estevez's sentence is vacated,
and his case is remanded for resentencing.
VACATED AND REMANDED
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