United States of America, Appellee, v. Dalmiro Eduardo Campuzano and John Jario Rios, Defendants-appellants, 905 F.2d 677 (2d Cir. 1990)

Appellants Dalmiro Eduardo Campuzano and John Jario Rios appeal from their convictions by a jury in the Northern District of New York for conspiracy to distribute narcotics and from the sentences imposed by Judge Gagliardi. Rios and Campuzano challenge the jury instruction as to the elements of the crime charged and the district court's determination of the applicable base offense level under the Sentencing Guidelines. We affirm.

BACKGROUND

This case arose out of a narcotics conspiracy involving the two appellants and six co-defendants. Appellants and most of their co-defendants were employees at a hotel in Ellenville, New York. In the course of a money-laundering investigation, an undercover Customs Service agent went to work as a waitress at the hotel and discovered narcotics trafficking. The undercover waitress, together with an agent from the Drug Enforcement Administration posing as the waitress's cousin, arranged for two controlled purchases of cocaine from the traffickers. A purchase of one kilogram of cocaine was completed on October 26, 1988. A second purchase involving two kilograms of cocaine was completed on November 15. After the sales, the various defendants, including appellants, were arrested. A total of nearly five kilograms of cocaine was either purchased undercover or seized, and there was testimony at trial of other narcotics transactions.

A superseding indictment charged Rios and Campuzano with conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846 (1988). The jury convicted them on this count. The jury also answered special interrogatories submitted by the district court regarding the volume of cocaine involved in the conspiracy. In response to the interrogatory, "Was five kilograms (5,000 grams) or more involved?" the jury answered "No." The jury answered "Yes" to the interrogatory, "Was one-half kilogram (500 grams) or more but less than five kilograms (5,000 grams) involved?"

The district court sentenced both appellants to terms of seventy-two months. Appellants challenge their convictions and their sentences.

DISCUSSION

Appellants claim that the district court erred in its instructions regarding the narcotics conspiracy count because it did not require the jury to find that, as charged in the indictment, more than five kilograms of cocaine was involved.¹  Such a charge, they argue, amounted to an amendment of the indictment and failed to include an essential element of the offense. We disagree.

Neither appellant raised this issue at trial.²  Nevertheless, we address it because a failure to charge an essential element of the offense might constitute plain error under Fed. R. Crim. P. 52(b). See United States v. Golomb, 811 F.2d 787, 793 (2d Cir. 1987); United States v. Walsh, 700 F.2d 846, 856 n. 6 (2d Cir.), cert. denied, 464 U.S. 825, 104 S. Ct. 96, 78 L. Ed. 2d 102 (1983); see also United States v. Young, 470 U.S. 1, 15-16, 105 S. Ct. 1038, 1046-47, 84 L. Ed. 2d 1 (1985) (plain error should be found only where error would seriously affect fairness or integrity of proceedings).

Count I of the indictment charged the appellants with violating 21 U.S.C. § 846 (1988) by conspiring to distribute "a quantity of cocaine in excess of five (5) kilograms in violation of Title 21, United States Code, Section 841(a) (1)." Section 841(a) (1) makes it unlawful to distribute a controlled substance, while Section 846 prohibits conspiracies to violate Section 841(a) (1). Although Section 841(b) was not referred to in the indictment, it is one source of the present dispute because it provides mandatory minimum penalties for violations of Section 841(a) that involve specified quantities of controlled substances. In particular, Section 841(b) requires a mandatory minimum sentence of ten years where more than five kilograms of cocaine are involved, see 21 U.S.C. § 841(b) (1) (A) (ii) (1988), and of five years where more than five hundred grams of cocaine are involved, see 21 U.S.C. § 841(b) (1) (B) (ii) (1988).

The district judge took the view that the jury could convict appellants for a conspiracy to violate Section 841(a) (1) without finding that a particular quantity of narcotics was involved, even though a particular quantity was mentioned in the indictment. He believed that the quantity issue was not for the jury because it "only goes to the penalty phase of the case and not to the question of guilt or innocence." He therefore charged the jury that it could convict on the conspiracy count if it found a conspiracy to distribute "a quantity" of cocaine. He also decided, however, that there would be "no harm" in getting a determination from the jury as to the precise quantity involved for purposes of enhancement and submitted the special interrogatories described above.

We agree with the view of the district court. Section 841(a) of Title 21 prohibits the distribution of any amount of cocaine and in no way requires proof of a particular quantity of narcotics as an element of the conspiracy to distribute.³  When an indictment does allege that a particular quantity is involved, the effect is only to put the defendant on notice that the enhanced penalty provisions of Section 841(b) may apply. Because the quantity is relevant only to enhancement of the sentence, the government is not required to prove the quantity alleged, unless of course the specification of the particular quantity is somehow misleading to the defendant as to the conduct or transaction that is the basis of the charge. Appellants make no claim to having been so misled.

In so holding, we join a clear majority of circuits that have held that quantity is not an element of the crimes proscribed by Sections 841(a) and 846. See United States v. Brown, 887 F.2d 537, 540 (5th Cir. 1989); United States v. Jenkins, 866 F.2d 331, 334 (10th Cir. 1989); United States v. Wood, 834 F.2d 1382, 1388 90 (8th Cir. 1987); United States v. Gibbs, 813 F.2d 596, 599-600 (3d Cir.), cert. denied, 484 U.S. 822, 108 S. Ct. 83, 98 L. Ed. 2d 45 (1987); United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986); United States v. McHugh, 769 F.2d 860, 868 (1st Cir. 1985).

Appellants also argue that the district court improperly applied the Sentencing Guidelines in determining their base offense level. The determination of the quantity of cocaine for purposes of calculating a base offense level is a factual determination for the court subject to the clearly erroneous standard of review.⁴  See 18 U.S.C. § 3742(e) (1988). We affirm the district court's findings regarding the base offense level and the resultant sentences.

The base offense level for narcotics offenses is to be determined by resort to the drug quantity table in U.S.S.G. Sec. 2D1.1, which contains a scale of offense levels gauged by the quantity of narcotics involved. The pertinent base offense levels for cocaine in effect at the time⁵  were:

At sentencing, the district judge indicated that he was accepting the jury's finding concerning the amount of cocaine involved in the conspiracy. However, he misspoke when he stated that the jury had found that the conspiracy involved "less than five kilograms but more than four kilograms." Actually, the jury had found that the conspiracy involved less than five kilograms but more than five hundred grams (one-half kilogram or 0.5K). Nevertheless, it is clear in the record that the district judge did not apply a finding of four to five kilograms in calculating the sentences under the Guidelines. A finding that four to five kilograms was involved would have led to a base offense level of 30. Because the district judge found a base offense level of 28, it is clear that his remarks about the jury's findings were a misstatement not affecting the sentence.

A further problem in the application of the Guidelines arose because different probation officers prepared the presentence reports for each appellant. Although appellants' crimes were substantially identical, the probation officers reached divergent conclusions as to the pertinent base offense levels. The probation officer for Rios assigned a base offense level of 32 because "a wide range of arguments could be presented from a base offense level as high as 32 to as low as 14." No basis for selecting the highest level was given. The probation report for Campuzano indicated that the jury finding required a base offense level of at least 26 (corresponding to 500 grams of cocaine). However, the probation officer suggested that the base offense level for Campuzano should be 28, corresponding to amounts of cocaine over 2 kilograms but under 3.9 kilograms. See U.S.S.G. Sec. 2D1.1(a) (3) (Oct. 1987) (drug quantity table). The basis for this recommendation was evidence indicating that Campuzano was present at a discussion among various defendants relating to the two-kilogram drug sale.

Judge Gagliardi resolved the conflict between the two probation officers by adopting the probation department's version of facts regarding Campuzano for Rios as well. When the court adjusted the base offense level for Rios to 28, however, he stated that it was the calculation for Campuzano that was being modified. Again, it is clear in the record that this was a simple misstatement not affecting the sentence. After a two-point reduction for being minor participants, see U.S.S.G. Sec. 3B1.2(b) (Oct. 1987), the district court reached a total offense level of 26, which, given the criminal history category of both appellants, indicated a Guidelines range of 63 to 78 months, see U.S.S.G. Ch. 5, Part A (Oct. 1987) (sentencing table). Judge Gagliardi sentenced both appellants to 72 months' imprisonment.

A finding that more than two kilograms of cocaine was involved was within the "range" of the jury's special verdict and was not clearly erroneous. Judge Gagliardi presided at appellants' trial and heard the testimony of all witnesses, including the appellants. The evidence implicating Campuzano in the two-kilogram sale implicated Rios as well.⁶  See 18 U.S.C. § 3742(e). Appellants made no offer to present evidence contesting the version of the facts in Campuzano's presentence report and, accordingly, we affirm appellants' sentences.

Affirmed.