Cortez v. USA

Filing 28

ORDER OF DIMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 22 Report and Recommendations. ORDERED that Cortez' Motion to Vacate, Set Aside or Correct Sentence (Dkt. 1) is DENIED, and this case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions by either party not previously ruled on are DENIED. Signed by Judge Richard A. Schell on 4/4/2017. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ANDRES JOHN CORTEZ
#19949-078
v.

UNITED STATES OF AMERICA

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CIVIL ACTION NO. 4:15CV574
CRIMINAL NO. 4:11CR247

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Kimberly Priest Johnson. The Report and Recommendation of the Magistrate Judge (the
“Report”) (Dkt. 22), which contains proposed findings of fact and recommendations for the
disposition of such action, has been presented for consideration. The Report recommends that the
court deny Cortez’ Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255
(Dkt. 1), dismiss the case with prejudice, and deny a certificate of appealability. Cortez has filed
written Objections (Civ. Dkt. 24). Having made a de novo review of the Objections, the court
concludes that the findings and conclusions of the Magistrate Judge are correct and adopts the
same as the findings and conclusions of the court.
Cortez’ sole objection is to the Magistrate Judge’s conclusion that he was not sentenced in
excess of the statutory maximum. See Dkt. 24 at 2-4. The Magistrate Judge found the facts
relevant to Cortez’ sentence as follows:
Movant argues that he was sentenced in excess of the maximum sentence allowable
by law. Movant was charged with conspiracy to distribute or possess with intent to
distribute illicit drugs under 21 U.S.C. §§ 841 and 846. Section 841(b) sets forth
the applicable penalties for violation of §§ 841 and 846, which vary depending on
the type and quantity of drugs involved. In Movant’s case, he was subject to a
statutory maximum sentence of five (5) years’ imprisonment and no mandatory
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minimum if the conspiracy involved less than fifty (50) kilograms of marijuana and
no other illicit substance. See 21 U.S.C. § 841 (b)(1)(D). He was subject to a
mandatory minimum sentence of ten (10) years’ and a maximum of life
imprisonment if the conspiracy involved five (5) kilograms or more of cocaine, fifty
(50) grams or more of methamphetamine, or five hundred (500) grams or more of
a mixture or substance containing methamphetamine. See 21 U.S.C. § 841
(b)(1)(A).
The jury’s special verdict found Movant guilty of conspiracy and held him
responsible for five hundred (500) grams or more of a mixture or substance
containing methamphetamine and less than fifty (50) kilograms of marijuana. See
Crim. Dkt. 302.
Dkt. 22 at 7. Cortez does not dispute these factual findings. However, he renews his argument that
“the jury’s type and quantity finding as to the marijuana dictates the applicable sentencing range.
Thus, he argues his sentence should have been capped at five (5) years’ imprisonment.” Id.
Cortez’ argument is based on an erroneous interpretation of the Supreme Court’s holding
in Edwards v. United States, 523 U.S. 511, 513–15 (1998).1 See Dkt. 24 at 2-4. In Edwards, two
defendants challenged the sentences imposed by a judge following their convictions under 21
U.S.C. §§ 841 and 846. Id. at 513. The defendants had been found guilty of participation in a drug
conspiracy involving cocaine and/or cocaine base (crack) by a general jury verdict. Id. Since the
indictment permitted conviction for a conspiracy involving either cocaine or crack, the defendants
argued the judge’s sentences were unlawful insofar as they were based upon crack, which the
Sentencing Guidelines treated more severely than cocaine. Id. The issue before the Court was
whether judge or jury was responsible for determining the type and quantity of drugs involved in
a multi-drug conspiracy for the purpose of determining “relevant conduct” at sentencing. Id. at
513-14. The Court explained, “[t]he Sentencing Guidelines instruct the judge in a case like this
one to determine both the amount and the kind of ‘controlled substances’ for which a defendant

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Cortez also relies on United States v. Riley, 142 F.3d 1254, 1256 (11th Cir. 1998), in which the Eleventh
Circuit applied, but did not expand, the holding in Edwards to a drug conspiracy case that was “virtually identical” to
the case at issue in Edwards.
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should be held accountable—and then to impose a sentence that varies depending upon amount
and kind.” Id. Because the trial judge had done so, the defendants’ sentences were upheld. Id.
The Court also explained the significance of the fact that, in Edwards, the relevant
Guidelines sentencing range and statutory maximum penalties were the same for a conspiracy
involving cocaine, crack, or both, given the quantities of drugs attributed to each defendant. Id. at
514-15. The Court noted the case might have turned out differently “if it were possible to argue,
say, that the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only
conspiracy. That is because a maximum sentence set by statute trumps a higher sentence set forth
in the Guidelines.” Id. at 515 (citing United States v. Orozco-Prada, 732 F.2d 1076, 1083-84 (2d
Cir. 1984) (explaining that a court may not sentence a defendant under statutory penalties for
cocaine conspiracy when the jury may have found a marijuana-only conspiracy, which carried
a less stringent penalty)). Thus, the Court carved out an exception to its own rule applicable
when, as in the instant case, conviction of conspiracy involving one charged drug type and
quantity allows for a sentence above the statutory maximum for another.
The Court of Appeals for the Sixth Circuit interpreted the Edwards exception in United
States v. Dale, 178 F.3d 429, 433 (6th Cir. 1999), explaining, “[t]he implication . . . is that the
shorter maximum sentence should be used if the verdict is merely general, rather than specific, and
the one drug allows for a sentence above the maximum for another charged drug. This implication
is strengthened by the Court’s approving reference to [Orozco-Prada, 732 F.2d at 1083-84], which
held that following a general jury verdict on a conspiracy to distribute both cocaine and marijuana,
a court may not sentence a defendant under the statutory penalties for cocaine conspiracy, as the
jury may have found only a marijuana conspiracy.”

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In the instant case, Cortez was convicted by special verdict of conspiracy to distribute or
possess with intent to distribute five hundred (500) grams or more of a mixture or substance
containing methamphetamine and less than fifty (50) kilograms of marijuana. See Crim. Dkt. 302.
Cortez argues the exception in Edwards precluded imposition of a sentence based on the jury’s
type and quantity finding as to methamphetamine because the applicable sentencing range for a
conspiracy involving methamphetamine is longer than for a marijuana-only conspiracy. However,
Edwards only limits a judge’s sentencing discretion when a defendant is charged with conspiracy
covering multiple drugs, one charged drug allows for a s ntence above the maximum for
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another charged drug, and the jury verdict is merely general rather than specific. In such instances,
a defendant’s sentence may not exceed the shortest maximum dictated by the drug types and
quantities alleged in the charging document. See Dale, 178. F.3d at 433 (interpreting Edwards);
see also United States v. Cooper, 966 F.2d 936, 940 (5th Cir. 1992) (“a sentencing judge faced
with a conviction on a count that charged the violation of more than one statute, but where the jury
failed to specify the violation found, is limited to imposing a sentence that does not exceed the
maximum penalty under the statute providing the least severe punishment.”). On the other hand,
when the jury returns a special verdict holding a defendant responsible for specific drug types and
quantities, the judge need not limit the sentence to the shortest maximum. Rather, the judge may
impose any sentence within the statutory range or ranges dictated by the jury’s specific type and
quantity findings. See Dale, 178. F.3d at 433.
The Magistrate Judge reasoned:
[T]he jury found by special verdict that Movant was responsible for five hundred
(500) grams or more of a mixture or substance containing methamphetamine and less
than fifty (50) kilograms of marijuana. Because the jury’s type and quantity findings
were unambiguous, the district judge was not limited to sentencing Movant based
on the drug carrying the lowest penalty—marijuana. Rather, the district judge had
authority to impose a sentence up to, but not exceeding the maximum dictated by

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the jury’s finding as to methamphetamine. The one hundred and twenty (120)
month prison term imposed by the district judge falls well below the life sentence
authorized by § 841(b)(1)(A)(viii). Movant’s claim that his sentence could not
lawfully exceed five (5) years’ imprisonment—the statutory maximum for a
conspiracy involving only less than fifty (50) kilograms of marijuana—lacks merit.
Dkt. 22 at 8-9. These conclusions do not misapply Edwards, as Cortez contends, and are otherwise
consistent with federal law. Accordingly, Cortez’ objection lacks merit.
In light of the foregoing, it is ORDERED that Cortez’ Motion to Vacate, Set Aside or
Correct Sentence (Dkt. 1) is DENIED, and this case is DISMISSED with prejudice. A certificate
of appealability is DENIED.

All motions by either party not previously ruled on are

DENIED.
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SIGNED this the 4th day of April, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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