Appendix — Ravelo v. United States

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{ 2. Supreme Court, U.S

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O09 9650607 200

NO.

ya (Ht CLERA

IN THE SUPREME COURT

OF THE UNITED STATES

TONY RAVELO,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR CERTIORARI REVIEW

On Petition for Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

RHONDA A. ANDERSON, ESQ.

RHONDA A. ANDERSON, P.A.

COUNSEL FOR TONY RAVELO

2222 PONCE DE LEON BLVD, SUITE 500

CORAL GABLES, FLORIDA 33134

TELEPHONE: (305) 444-1400

py’

S\.

TABLE OF CONTENTS

Indictment filed on September

pe Sr eee ere worn 1-3

Superseding Indictment filed on

November 21, 1996............ 4-6

Second Superseding Indictment

filed on October 30, 1997 ...... 7-11

Judgment and Commitment

entered on August 27,1998 ... 12-26

Eleventh Circuit Opinion

affirming District Court’s

Judgment and Commitment

entered on July 31, 2000 ...... 27-43

Tony Ravelo’s Petition for

Rehearing and Rehearing

RE sol 0s eas a ek 44-57

Eleventh Circuit Order Denying

Petition for Rehearing entered

ng ae | | 58

Eleventh Circuit Mandate issued

on September 20, 2000 .......... 59

21 U.S.C. § 952-Importation of

Controlled Substances .......

21 U.S.C. § 960-Prohibited Acts

U.S.S.G. 2D1.1-Unlawful

Manufacturing, Importing,

Exporting, or Trafficking

(Including Possession with Intent

to Commit These Offenses);

Attempt or Conspiracy .......

afin

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and exact

copy of the foregoing was mailed via U.S. Mail, this

6" day of December, 2000, to: Solicitor General,

Department of Justice, 10" and Constitution

Avenue, N.W., Washington, D.C. 20530; and

Charles A. Kandt, Esq., Assistant U. S. Attorney,

63 South Royal Street, Riverview Plaza, Suite 600,

Mobile, Alabama 36602. oe

Gd as Cis Fe 7 get

a A. Anderson, Esq.

Rhofida A. Anderson, P.A.

ounsel for ony Ravelo

2222 Ponce De Leon Blvd.

Suite 500

Coral Gables, Florida 33134

Florida Bar No. 708038

Telephone: (305) 444-1400

Facsimile: (305) 444-1487

-iii-

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

CRIMINAL NO. 96-00181

USAO NO. 96R0310H

UNITED STATES OF AMERICA,

Plaintiff, Violations:

VS.

7 21 USC 963

TONY RAVELO, ORLANDO 21 USC 952(a)

CONCEPCION, and 18 USC 2

MIGUEL IGNACIO

CABAL,

Defendants.

THE GRAND JURY CHARGES:

INDICTMENT

Beginning in or about April, 1996, the exact dates

being unknown to the Grand Jury, and continuing to the

present, in the Southern District of Alabama, Southern

Division,

TONY RAVELO

ORLANDO CONCEPCION, and

MIGUEL IGNACIO CABAL

did willfully, knowingly and unlawfully combine,

conspire, confederate and agree with each other and with

divers other persons whose names are to the Grand Jury

known and unknown, to commit certain offenses against

5a.

the United States of America, to-wit:

knowingly and intentionally unlawfully import

more than eight hundred kilograms of cocaine, a

Schedule II controlled substance, into the United

States of America from the Republic of Panama,

in violation of Title 21, United States Code,

Section 952(a).

It was part of said conspiracy that the defendants

would themselves or through divers other persons as

known and unknown times and places, obtain cocaine in

the Republic of Panama and transport the cocaine into

the United States by concealing the cocaine within a

recreational speed boat, which would be manufactured in

the United States with hidden compartments, exported to

the Republic of Panama, and then returned to the

manufacturer with cocaine hidden within, in violation of

Title 21, United States Code, Section 963 and Title 18,

United States Code, Section 2.

A TRUE BILL

FOREMAN, UNITED STATES GRAND JURY

SOUTHERN DISTRICT OF ALABAMA

J. DON FOSTER

UNITED STATES ATTORNEY

by:

Charles A. Kandt

Assistant United States Attorney

E.T. Robinson Jr.

E.T. Robinson, Jr.

Assistant United States Attorney

Chief, OCDETF Division

SEPTEMBER 1996

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

CRIMINAL NO. 96-00181

USAO NO. 96R0310H

UNITED STATES OF AMERICA,

Plaintiff, Violations:

VS.

21 USC 963

TONY RAVELO, ORLANDO 21 USC 952(a)

CONCEPCION, MIGUEL IGNACIO 18 USC 2

CABAL, and ALEJANDRO TORRES,

a.k.a. ALEX,

Defendants.

THE GRAND JURY CHARGES:

SUPERSEDING INDICTMENT

Beginning in or about April, 1996, the exact dates

being unknown to the Grand Jury, and continuing to the

present, in the Southern District of Alabama, Southern

Division,

TONY RAVELO

ORLANDO CONCEPCION,

MIGUEL IGNACIO CABAL, and

ALEJANDRO TORRES, aka ALEX,

did willfully, knowingly and unlawfully combine,

conspire, confederate and agree with each other and with

divers other persons whose names are to the Grand Jury

‘known and unknown, to commit certain offenses against

the United States of America, to-wit:

knowingly and intentionally unlawfully import

more than eight hundred kilograms of cocaine, a

Schedule II controlled substance, into the United

States of America from the Republic of Panama,

in violation of Title 21, United States Code,

Section 952(a).

‘It was part of said conspiracy that the defendants

would themselves or through divers other persons as

known and unknown times and places, obtain cocaine in

the Republic of Panama and transport the cocaine into '

the United States by concealing the cocaine within a

recreational speed boat, which would be manufactured in

the United States with hidden compartments, exported to

the Republic of Panama, and then returned to the

manufacturer with cocaine hidden within, in violation of

Title 21, United States Code, Section 963 and Title 18,

United States Code, Section 2.

A TRUE BILL

FOREMAN, UNITED STATES GRAND JURY

SOUTHERN DISTRICT OF ALABAMA

J. DON FOSTER

UNITED STATES ATTORNEY

by:

Charles A. Kandt

Assistant United States Attorney

L.T. Robinson Jr./by Richard W. Moore

E.T. Robinson, Jr.

Assistant United States Attorney

Chief, OCDETF Division

NOVEMBER 1996

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

CRIMINAL NO. 96-0018!

USAO NO. 96R0310H

UNITED STATES OF AMERICA,

Plaintiff, Violations:

VS.

21 USC 963

TONY RAVELO, ORLANDO 21 USC 952(a)

CONCEPCION, MIGUEL IGNACIO _ 21 USA 846

CABAL, and ALEJANDRO TORRES, 18 USC 2

a.k.a. ALEX, 18 USC 853

Defendants.

THE GRAND JURY CHARGES:

SECOND SUPERSEDING INDICTMENT

Count One

‘Beginning in or about April, 1996, the exact dates

being unknown to the Grand Jury, and continuing to the

Sb in the Southern District of Alabama, Southern

ivision,

TONY RAVELO

ORLANDO CONCEPCION,

MIGUEL IGNACIO CABAL, and

ALEJANDRO TORRES, aka ALEX,

did willfully, knowingly and unlawfully combine,

conspire, confederate and agree with each other and with

divers other persons whose names are to the Grand Jury

known and unknown, to commit certain offenses against

the United States of America, to-wit:

knowingly and intentionally unlawfully import more

than eight hundred kilograms of cocaine, a Schedule II

controlled substance, into the United States of America

from the Republic of Panama, in violation of Title 21,

United States Code, Section 952(a).

It was part of said conspiracy that the defendants

would themselves or through divers other persons as

known and unknown times and places, obtain cocaine in

the Republic of Panama and transport the cocaine into

the United States by concealing the cocaine within a

recreational speed boat, which would be manufactured in

the United States with hidden compartments, exported to

the Republic of Panama, and then returned to the

manufacturer with cocaine hidden within, in violation of

Title 21, United States Code, Section 963 and Title 18,

United States Code, Section 2.

Count Two

On October 29, 1997, in the Southern District of

Alabama, Southern Division,

ORLANDO CONCEPCION

did wilfully, knowingly and unlawfully attempt to

-8-

possess with the intent to distribute a controlled

substance, to-wit: possessed approximately Six

Kilograms of Cocaine, a Schedule II controlled

substance, and attempted to distribute said cocaine to

customers in Alabama, knowing the cocaine would be

destined for Alabama,

All in violation of Title 21, United States Code,

Section 846.

Count Three

Upon conviction of TONY RAVELO of a violation

of Title 21, United States Code, Section 963, as charged

in Count One, which is punishable by imprisonment for

more than one year, the United States is entitled to the

forfeiture for more than one year, the United States is

entitled to the forfeiture of all property of TONY

RAVELO, constituting or derived from any proceeds

the TONY RAVELO obtained directly or indirectly, as

the result of said violations, and any property which was

used, or intended to be used, in any manner or part, to

commit or to facilitate the commission of said violations.

Such property includes, but is not necessarily limited to,

the following:

1. All United States currency which is drug proceeds

or intended to facilitate drug transactions;

2. 1994 Porsche 963,

VIN # WPOAA2969RS820530,

Florida Registration Number RBH82C;

3. One Vessel, a 26' Gulfstream,

Florida Registration Number FL2162HW;

4. One Vessel, a 32' Donzi Performer,

Florida Registration Number FLZK1362G883;

as provided by Title 21, United States Code, Section

853.

If any property described above as being subject to

forfeiture pursuant to Title 21, United States Code,

Section 853(a), as a result of any act or omission of the

defendant

1. Cannot be located upon the exercise of due

diligence;

2. Has been transferred or sold to, or deposited with,

a third person;

3. Has been placed beyond the jurisdiction of the

Court;

4. Has been substantially diminished in value, or

5. Has been commingled with other property which

cannot be sub divided without difficulty;

it is the intent of the United States, pursuant to Title 21,

40.

United States Code, Section 853(p), to seek forfeiture of

any other property of said defendants up to the value of

said property listed above as being subject to forfeiture.

A TRUE BILL

FOREMAN, UNITED STATES GRAND JURY

SOUTHERN DISTRICT OF ALABAMA

J. DON FOSTER

UNITED STATES ATTORNEY

by:

Charles A. Kandt

Assistant United States Attorney

OCTOBER 1997

Deborah A. Griffin

Assistant United States Attorney

Deputy Chief, Criminal Division

Head of Narcotics

eh.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ALABAMA

CASE NO. 1:96CR00181-001

UNITED STATES OF AMERICA,

TONY RAVELO,

MARCIA SHEIN

Defendant’s Attorney

JUDGMENT IN A CRIMINAL CASE

(For offenses Committed On or After-November |, 1987)

O pleaded guilty to count(s) __.

QO pleaded nolo contendere to count(s)__ which was

accepted by the court.

® was found guilty on count(s) one (1) of the second

superseding indictment after a plea of not guilty.

Title Nature Date Offense Count

& Section of Offense Concluded No.(s)

21 USC§$963 Conspiracy to 04/30/1996 l

import cocaine

The defendant is sentenced as provided in pages 2

through 6 of the judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

As.

Q The defendant has been found not guilty on count(s)

O Count(s)__ is/are dismissed on the motion of the

United States.

IT IS FURTHER ORDERED that the defendant

shall notify the United States Attorney for this district

within 30 days of any change of name, residence, or

mailing address until all fines, restitution, costs, and

special assessments imposed by this judgment are fully

paid.

Defendant’s Social Security No.: 226-27-1518

Defendant’s Date of Birth: 04/14/1953

Defendant’s U.S.M. No.: 57845-004

Defendant’s Residence Address:

1140 Alfonso Avenue

Coral Gables, FL 33146

Defendant’s Mailing Address: Same

8/21/98

Date of Imposition of Judgment

RICHARD W. VOLLMER, JR.

UNITED STATES DISTRICT JUDGE

8/27/98

Date

a a

Judgment 2

AO 245B(Rev. 8/96)Judgment in a Criminal Case:

Sheet 2-Imprisonment

Defendant: TONY RAVELO

Case Number: 1:96CR00181-001

IMPRISONMENT

THE defendant is hereby committed to the custody

of the United States Bureau of Prisons to be imprisoned

for a total term of LIFE.

QO Special Conditions:

® The court makes the following recommendations to

the Bureau of prisons:

The court recommends that the defendant be

incarcerated near his home at FCI, Coleman Florida,

if pissible.

® The defendant is remanded to the custody of the

United States Marshal.

QO The defendant shall surrender to the United States

Marshal for this district:

O at a.m./p.m. on

QO as notified by the United States Mardi.

QO The defendant shall surrender for service of sentence

at the institution designated by the Bureau of

Prisons:

QO before2p.m.on_ _

-14-

O as notified by the United States Marshal.

O as notified by the Probation or Pretrial Services

Office.

RETURN

| have executed this judgment as follows:

Defendant delivered on to at

with a certified copy of this

judgment.

UNITED STATES MARSHAL

Deputy U.S. Marshal

-15-

Judgment 3

AO 245B(Rev. 8/96)Judgment in a Criminal Case:

Sheet 3-Imprisonment

Defendant: TONY RAVELO

Case Number: 1:96CR00181-001

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be

on supervised release for a term of 5 years.

QO Special Conditions:

For offenses committed on or after September 13, 1994:

The defendant shall refrain from any unlawful use of a

controlled substance. The defendant shall submit to one

drug test within 15 days of release from imprisonment

and at least two periodic drug tests thereafter, as directed

by the probation officer.

O The above drug testing condition is suspended based

on the court’s determination that the defendant poses

a low risk of future substance abuse. (Check, if

applicable)

® The defendant shall not possess a firearm as

defined in 18 USC § 921. (Check, if applicable)

If this judgment imposes a fine or a restitution

obligation, it shall be a condition of supervised release

-16-

that the defendant pay any such time or restitution that

remains unpaid at the commencement of the term of

supervised release in accordance with the Schedule of

Payments set forth in the Criminal Monetary Penalties

sheet of this judgment. The defendant shall report to the

probation office in the district to which the defendant is

released within 72 hours of release from the custody of

the Bureau of Prisons.

The defendant shall not commit another federal, state or

local crime.

The defendant shall not illegally possess a controlled

substance.

The defendant shall comply with the standard conditions

that have been adopted by this court (set forth below).

The defendant shall also comnly with the additional

conditions on the attached page (if applicable).

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district

without the permission of the court or probation

officer;

2) the defendant shall report to the probation officer

and shall submit a truthful and complete written

report within the first five days of each month;

3) the defendant shall answer truthfully all inquiries by

the probation officer and follow the instructions of

the prob. officer;

itt.

10)

11)

12)

the defendant shall support his or her dependents and

meet other family responsibilities;

the defendant shall work regularly at a lawful

occupation unless excused by the probation officer

for schooling, training, or other acceptable reasons;

the defendant shall notify the probation officer ten

days prior to any change in residence or

employment;

the defendant shall refrain from excessive use of

alcohol:

the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

the defendant shall not associate with any persons

engaged in criminal activity, and shall not associate

with any person convicted of a felony unless granted

permission to do so by the probation officer;

the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view of the probation officer;

the defendant shall notify the probation officer

within seventy-two hours of being arrested or

questioned by a law enforcement officer;

the defendant shall not enter into any agreement

to act as informer or a special agent of a law

-18-

13)

enforcement agency without the permission of

the court;

as directed by the prob. officer, the defendant

shall notify third parties of risks that may be

occasioned by the defendant’s criminal record or

pe4rsonal history or characteristics, and shall

permit the probation officer to make such

notifications and to confirm the defendant’s

compliance with such notification requirement.

-19-

Judgment 4

AO 245B(Rev. 8/96)Judgment in a Criminal Case:

Sheet 5, Part A-Criminal Monetary Penalties

Defendant: TONY RAVELO

Case Number: 1:96CR00181-001

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal

monetary penalties in accordance with the schedule of

payment set forth on Sheet 5, Part B.

Assessment _—‘ Fine Restitution

Totals: $100.00

O I|f applicable, restitution amount ordered pursuant to

plea agreement. $

FINE

The above fine includes costs of incarceration and/or

supervision in the amount of

The defendant shall pay interest on any fine more

than $2,500, unless the fine is paid in full before the

fifteenth day after the date of judgment, pursuant to 18

U.S.C. § 3612(f). All of the payment options on Sheet

5, Part B may be subject to penalties for default and

delinquency pursuant to 18 U.S.C. § 3612(g).

O The court has determined that the defendant does not

have the ability to pay interest and it is ordered that:

O The interest requirement is waived.

QO The interest requirement is modified as follows:

RESTITUTION

QO The determination of restitution is deferred until

. An Amended Judgment in a Criminal Case

will be entered after such a determination.

O The defendant shall make restitution to the following

payees in the amounts listed below:

** If the defendant makes a partial payment, each payee

shall receive an approximately proportional payment

unless specified otherwise in the priority order or

percentage payment column below. (Or see attached)

Name(s) and

Address(es) *Total Priority Order or of

of Payee(s) Amount of % of Paymert

TOTALS: 3 $

*Findings for the total amount of losses are required

under Chapters 109A, 110, 110A, and 113A of Title 18

for offenses committed on or after September 13, 1994

but before April 23, 1996.

Judgment 5

AO 245B(Rev. 8/96)Judgment in a Criminal Case:

Sheet 5, Part B-Schedule of Payments

Defendant: TONY RAVELO

Case Number: 1:96CRO060t81-001

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order: (1)

assessments; (2) restitution; (3) fine principal; (4) cost of

prosecution; (5) interest; (6) penalties.

Payment of the total fine and other criminal

monetary penalties shall be due as follows:

® In full immediately; or

O $ immediately, balance due (in accordance with

the following): or

O not laterthan___;or

O ininstallments tocommence __ days after the date

of this judgment. In the event the entire amount of

criminal monetary penalties imposed is not paid prior

to the commencement of supervision, the U.S.

probation officer shall pursue collection of the

amount due, and shall request the court to establish a

payment schedule if appropriate; or

oe -2?

O in (e.g., equal, weekly, monthly, quarterly)

installments of $ overaperiod of year(s) to

commence days after the date of this judgment.

The defendant will receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

Q Special instructions regarding the payment of

criminal monetary penalties:

QO Joint and Several:

QO The defendant shall pay the following court

cost(s):

O The defendant shall forfeit the defendant's

interest in the following property to the United

States:

Unless the court has expressly ordered otherwise in

the special instructions above, if this judgment imposes

a period of imprisonment payment of criminal monetary

penalties shall be due during the period of

imprisonment. All criminal monetary penalty payments,

except those payments made through the Bureau of

Prison’s Inmate Financial Responsibility Program are to

be made as directed by the court, the probation officer,

or the United Sta‘es attorney.

Judgment 6

AO 245B(Rev. 8/96)Judgment in a Criminal Case:

Sheet 6-Statement of Reasons

Defendant: TONY RAVELO

Case Number: 1:96CR00181-001

STATEMENT OF REASONS

The court adopts the factual findings and guideline

application in the presentence report except:

1. The two-level enhancement in paragraph #30 for

possession Of a weapon is not appropriate and not

part of the conspiracy. The probation office is to

strike the information regarding any weapon.

The defendant was involved with at least 150

kilograms of cocaine during the conspiracy,

which gives a base of f offense level of 38. This

finding is based on trial testimony.

3. The defendant has not accepted responsibility in

this case-Paragraph #27 and #35.

4. The defendant has obstructed justice in this case

based on his trial testimony-Paragraph #33.

The defendant did have a leadership role in the

offense which gives a four-level increase-

Paragraph #32. The court also finds the

conspiracy involved five or more individuals or

-24-

was otherwise extensive.

6. Guideline 2X1.1 does not apply to this case.

Additionally, the court finds that the conspiracy

was continuing and not attempted.

Guideline Range Determined by the Court:

Total Offense level: 43

Criminal History Category: |

Imprisonment Range: _ to LIFE months

Supervised Release Range: _ to 5 years

Fine Range: $25,000.00 to $4,000,000.00

® Fine waived or below the guideline range

because of inability to pay.

Total amount of Restitution: $0

O Restitution is not ordered because of the

complication and prolongation of the sentencing

process resulting from the fashioning of a

restitution order out weighs the need to provide

restitution to any victims, pursuant to 18 U.S.C.

§$3663(d). |

O For offenses committed on or after September 13,

1994, but before April 23, 1996 that require the

total amount of loss to be states, pursuant to

Chapters 109A, 110, 110A, and 113A of Title 18,

restitution is not ordered because the economic

circumstances of the defendant do not allow for

the payment of any amount of a restitution order,

ie.

and do not allow for the payment of any or some

portion of a restitution order in the foreseeable

future under any reasonable schedule of

payments.

QO Partial restitution is ordered for the following

reason(s):

QO The sentence is within the guideline range, that range

does not exceed 24 months, and the court finds no

reason to depart from the sentence called for by the

application of the guidelines. The sentence

imposed addresses the seriousness of the offense

and meets the sentencing objectives of deterrence,

incapacitation and punishment.

QO The sentence is within the guideline range, that range

exceeds 24 months, and the sentence is imposed for

the following reasons:

O The sentence departs from the guideline range:

O upon motion of the government, as a result of

defendant’s substantial assistance, pursuant to 5K1.1

O for the following specific reason(s):

-26-

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-6681 000

Non-Argument Calendar

District Court Docket No. 96-00181-4-CR

UNITED STATES OF AMERICA, —__

Plaintiff-Appellee,

Vv.

ALEJANDRO TORRES a.k.a.

ALEX, TONY RAVELO,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Alabama

July 31, 2000

Before TJOFLAT, BARKETT and WILSON, Circuit

Judges.

PER CURIAM:

Alejandro Torres and Tony Ravelo appeal their

convictions and sentences for conspiring to import

cocaine in violation of 21 U.S.C. § 952(a), 21 U.S.C.

§963, and 18 U.S.C. §2. Finding no reversible error we

affirm.

I. BACKGROUND

According to the evidence introduced at trial, Ravelo

and co-defendant Orlando Concepcion owned the New

Wave Marina in Miami in Miami. Concepcion told

Jesus Vasquez, a marina mechanic, that he and Ravelo

needed to do a “big [cocaine-importing] trip,” and

Vasquez indicated that he knew someone who could do

the job. Vasquez then relayed this information to Joel

Guerrero, a confidential informant for the U.S. Customs

Service, and Jim Tanner, a U.S. Customs agent, and

offeSred to cooperate with a government investigation.

Vasquez, Concepcion, Guerrero, co-defendant

Migeul Cabal, and Ravelo met a short time later and

discussed a plan to import 1,000 kilograms of cocaine

into the United States from Panama. Ravelo, Guerrero,

Vazquez, and Concepcion met on other occasions to

discuss their plan to import cocaine, and Ravelo

explained during these meeting what they needed to do

to successfully import the cocaine. Also during this time

frame, Vasquez observed Ravelo and others installing

secret compartments on a boat in the marina warehouse.

Ravelo and Guerrero flew to Mobile, Alabama on

May 23, 1996 to meet with Agent Tanner, who was

posing as a small cargo freight company owner. During

their meeting, Ravelo claimed that he had made a lot of

money through the importing business over the past five

years, and explained his plan top secret cocaine in a boat

in Panama, transfer the cocaine into a second boat off

shore, and then bring the cocaine into the United States

aboard the second boat. Ravelo also discussed the size

of the shipment, which would be between 800 and 1,000

kilograms.

In September, 1996, Vasquez and Guerrero met

Torres at the marina warehouse in Miami, where Torres

had brought his Gulfstream fishing boat. Torres told

Guerrero that this was the boat that they were “looking

for to do business with.”

In October, 1996 Tanner, Ravelo, and Guerrero met

again in Mobile, where Ravelo explained that he wanted

to reduce the amount of cocaine imported to 350-265

kilograms. Ravelo also indicated to Tanner that Torres

had an appropriate vessel (1.e., a vessel similar to the

vessel in Panama which would be loaded with cocaine),

and that he had paid Torres to use the vessel in this deal.

At the end of this meeting, Ravelo gave Tanner $15,000

in cash for expenses incurred, and gave Tanner a

business card with Ravelo’s contact information in

Panama.

Ravelo never returned to Mobile and Tanner spoke

with Ravelo for the last time in November, 1996. In that

conversation, Ravelo indicated that the scheme was

delayed due to problems in Panama and that he would

contact Tanner again when he had a date when they

could proceed. In November, 1996, Torres told

Guerrero that Ravelo had delayed completing the scheme

because of problems he was experiencing with the boat

in panama. In March, 1997, Torres told Guerrero that

-29-

the deal was going to happen but that he needed to make

repairs on a boat that would be used during the trip.

Torres and Ravelo were arrested in October, 1997.

The government seized two vessels - a Gulfstream and a

Starfire - from Torre’s property upon his arrest. The

Gulfstream could conceal 240 kilograms of cocaine, and

the Starfire could conceal 320 kilograms of cocaine.

Ravelo was found in possession of $230,000 cash on his

person and in his residence at the time of his arrest.

Ravelo testified on his own behalf at trial. He

admitted that he had spoken about smuggling cocaine

into the United States, but claimed that he had attempted

to abandon the idea by informing Guerrero that the deal

was off and by selling his marina business in November,

1996. He also stated that he had spoken with Torres

about buying the Gulfstream boat in September, 1896,

but that he had never spoken with Torres about

smuggling cocaine into the United States. The jury

found both defendants guilty of conspiring to import

cocaine.

Il. DISCUSSION

A. Did the District Court Abuse its Discretion By

Admitting Evidence Regarding the Starfire Vessel?

Torres objected at trial to the government’s

introduction of evidence regarding the Starfire vessel

found at Torres’ s home upon his arrest. The

government offered the evidence to prove defendant’s

knowledge of hidden compartments on boats, and to

prove Torres’s intent with regard to the charged offense.

-30-

Ravelo objected based on Federal Rules of Evidence

404(b), and because the evidence would be highly

prejudicial. Appellants argue that the judge abused his

discretion by admitting the evidence.

We review the district court’s evidentiary

determination for abuse of discretion. See United States

v. Mills, 138 F.3d 928,935 (11 Cir. 1998). The district

court held the Starfire evidence relevant because it was

“evidence that was found at the same time during this

investigation,” rather than 404(b) evidence. Even if we

assume that this ruling was erroneous, without so

holding, “[t]his error... was harmless, considering all of

the other evidence against [appellants].” United States v.

Chavez, 204 F.3d 1305,1317 (11" Cir. 2000). Therefore

we will not disturb the appellants’ conviction on this

basis.

B. Did the District. Court _Impermissibly Bolster_a

Government Witness’s Testimony?

After defense counsel repeatedly phrased questions to

a governneit witness, “Is it correct,” or otherwise

utilizing the word “correct,” the trial judge instructed

counsel, “Counsel, let me point something to you. Ask

questions, sir. Don’t ask if it’s correct. If he testifies, it

will be correct.”' Neither defendant objected to this

Ravelo asserts that the judge’s statement, taken literally,

indicated the judge’s belief that the witness's statements were

3t.

instruction.

We review “assertions of error... not objected to at

trial for plain error.” United States v. Mitchell, F.3d

1338, 1342 (11" Cir.), cert denied, 525 U.S. 1031 (1998)

(quoting United States v. Kramer, 73 F.3d 1067, 1074

(11 Cir. 1996). “To find reversible error under the

plain error standard, w> must conclude that (1) the error

occurred, (2) the error was plain, and (3) the error

#ffected substantial rights.” Mitchell, 146 F.3d at 1342.

Ravelo assets that the judge’s instruction improperly

bolstered the credibility of the government witness, and

requires reversal. We disagree; assuming without

deciding that the instruction was error, it certainly was

not plain error, because Rasvelo has not proven that it

“affected the outcome of the district court proceedings.”

United States v. Olano, 507 U.S. 725, 734 (1993): see

also United States v. DeCastro, 113 F.3d 176, 180 (11"

Cir. 1997).

C. Did _ the District Court Abuse Its Discretion by

“correct.”” However, when viewed in context, this literal

interpretation was not the most likely interpretation. Indeed,

neither defendant objected at trial, a fact which indicates that

the statement did not strike the attorneys as an impermissible

bolstering of testimony at that time. While we hold this

statement was not plain error, we by no means encourage

statements such as these, and note that in another context the

Statement could constitute plain error.

-32-

Repeatedly Adimonishing Definess.Counssl Not t

Js Words ‘ de?”

Ravelo argues that the district court judge made “four

sharp rebukes”’ and ten other criticisms of defense

counsel, which taken together affected the tenor of the

trial to Ravelo’s detriment and require reversal. Ravelo

has not demonstrated that the “four sharp rebukes” and

ten criticisms at issue were “so prejudicial as to amount

to a denial of a fair trial.” United States v. Morales, 868

F.2d 1562, 1576 (11" Cir. 1989). Reversal is therefore

unwarranted.

Did the District Co Diser tion

"Preventing Ravelo om Chose Xamining Informants

Regarding Arrests nvictions, and Investigations

*The four rebukes were:

1. “Counsel, let me ask you not to comment on the answer.

Dor.’ say ‘correct.’ Just ask the question.”

2. Sustaining the government’s objection on form to

Ravelo’s lawyer’s question, “Would you concede that

confidential informants Jesus Vasquez and Joel Guerrero met

on different occasions with Mr. Tony Ravelo ...?”

3. “Counsel, don’t ask him if he concedes. Ask the question.

I don’t care whether he concedes or not. The jury doesn’t

care. Just ask your question, sir.”

4. “Counsel, let me point something out to you. Ask

questions, sir. Don’t ask if it’s correct. If he testifies, it will

be correct. All right, sir?”

43.

Fel ‘onviction?

The appellants sought to question both confidential

into criminal activities, for the purpose of demonstrating

bias. Specifically, Torres’s counsel asked Guerrero on

cross-examination, “Were you ever investigated for a

violation of any Federal or state law? The appellants

hopes to show through this line of inquiry that the

witnesses had motive to lic because they were “working

off something,” such as a prior crime, in exchange for

their testimony and work as confidential informants.

The government objected, noting that the Federal Rules

of Evidence (Rule 609(a)(2)) only allow for impeaching

the credibility of a witness though evidence of felony

convictions or convictions of crimes involving

dishonesty or false statements. We review the district

court’s decision for an abuse of discretion. See United

States v. Bulman, 667 F.2d 1374, 1381 (11" Cir. 1982).

Ravelo properly notes that, “investigation of a

witness’[s] credibility through the exposure of his or her

bias and motivation is a right guaranteed by the Sixth

Amendment’s Confrontation Clause ....” United States v.

Gonzalez, 71 F.3d 819, 835-36 (11" Cir. 1996) (internal

quotation omitted). While there is a Constitutional right

to adequately cross-examine, the Constitution does not

mandate that any particular course of cross-examination

be permitted. See Bulman, 667 F.2d at 1381 n.9. In

Bulman, the defendant’s Sixth Amendment right to

confrontation was satisfied when:

-34-

[A]ppellants had the opportunity to ask [the

confidential informant] about his _ prior

convictions, his employment by the DEA, the

duration of his employment, the manner and

amount of his compensation, and the cases on

which he had worked. Since appellants had

adequate alternative opportunities to delve into

whether there existed any deal between [the

informant] an the DEA ... the trial court did not

abuse its discretion in refusing to allow inquiry

into [the informant’s] arrest record.

Id. at 1382.

Here, appellants elicited testimony from the

informants revealing the sums of money each was

receiving for testifying, the temporary reprieve from

deportation received by one of the defendants in

exchange for acting as a confidential informant, and the

potential additional rewards each could receive. Since

ample testimony demonstrated the potential bias which

counsel sought to reveal, the district court did not abuse

its discretion by limiting defendant’s cross-examination

of the confidential informants.

E. Did the District Court Err By Admitting Testimony

Regarding Scope of Informant’s Previous

Confidential Informant Work and Compensation?

During opening statements, Torres’s counsel

mentioned that the Government had paid Guerrero

$225,000 for his work as a confidential informant.

-35-

Defense counsel elicited testimony from Agent Tanner

on cross-examination regarding the $225,000. On

redirect, the government elicited from Tanner more

specific information regarding the $225,000;

specifically, Tanner testified about the cases for which

Guerrero was compensated. Tanner mentioned the types

of cases, the sums of drugs involved, and the amount of

Guerrero’s compensation. Neither Torres nor Ravelo

objected to this testimony.

F. Did the District Court Err By Giving Improper Jury

Instructions on Aiding and Abetting?

Torres argued at trial that the jury instruction on

aiding and abetting was inappropriate and improperly

reduced the government’s burden of proof in a

conspiracy case. The instruction was virtually identical

to the jury instruction used in United States v. Walker,

621 F.2d 163, 165-66 (5" Cir. 1980). Based on Walker,

we reject the objections raised by Torres at trial.

Additionally, Torres asserts on appeal that the aiding and

abetting instruction was erroneous because it did not

require the jury to find the principal to have the requisite

criminal intent. Since Torres failed to raise this

objection at trial, we review only for plain error, which

does not result. See Mitchell, 146 F.3d at 1342-43.

G. Did the District Court Err By Allowing Improper

Prosecutorial Comments During Closing Arguments?

Appellants argue that the prosecutor made two

separate statements during closing arguments which

necessitate reversal. In the first statement at issue the

-36-

prosecutor argued:

Now you ask, what’s the harm that they'd agree to do

this and they didn’t get to carry it out? We contend

to you that people don’t come up to Customs and

DEA and FBI, knock on the door, and say, “I want to

tell you about these folks that are dealing inc rack

cocaine and cocaine and marijuana and whatever.”

That’s and example I gave to you, not that these

people were involved in crack cocaine and

marijuana, but that people don’t come volunteer to

law enforcement without some incentive on their part

about illegal activity, no more than people don’t talk

about it until after they’re caught ...

The prosecutor’s second statement at issue was, “Evil

triumphs when good men and women do nothing. You

twelve people know where justice lies.”

Appellant Torres correctly asserts that, “A prosecutor

is forbidden to make improper suggestions,

insinuations and assertions calculated to mislead the jury

and may not appeal to the jury’s passion or prejudice.”

United States v. Rodriguez, 765 F.2d 1546, 1560 (11"

Cir. 1985) (internal quotations omitted). However, we

have also held:

2%.

[I)n the heat of argument, counsel do occasionally

make remarks that are not justified by the

testimony, and which are, or may be, prejudicial

to the accused. Our task is to determine the

probable effect the improper comment had on the

jury. In assessing whether the accused was

actually prejudiced by improper argument, we

consider the presence of curative instructions and

the strength of the government’s case.

Id. (internal citations and quotations omitted).

In Rodriguez, we upheld the defendant’s conviction

because: “[t]he district court instructed the jury three

separate times that the argument of the attorneys was not

evidence,” the “court also instructed the jury to disregard

the prosecutor’s comments immediately after they were

challenged by defense counsel;” “the evidence of

[defendant’s] guilt was substantial, if not

overwhelming;” and “any impropriety was isolated and

certainly did not permeate the entire trial.” /d. Likewise,

in this case, the trial court sufficiently cured any error by

noting throughout the trial and in the oral charge to the

jury that the lawyers’ statements were not evidence.

Additionally, as with Rodriguez, the comments at issue

did not permeate the entire trial, and substantial evidence

supported the appellants’ convictions Hence, the

prosecutor's closing statements did not produce

reversible error. See United States v. Rodgers, 981 F.2d

497, 499-500 (11" Cir. 1993) (holding., “For a

-38-

prosecutor’s remark to offend due process, the remarks

must be improper and a reasonable probability must exist

that, but for the offending remarks, the defendant would

not have been convicted,” and upholding conviction

supported by ample evidence where district court issued

numerous curative instructions regarding lawyers’

arguments.)

H. Did the District Court Err By Not Reducing

Appellants’ Sentences By Three Levels Pursuant to

U.S.S.G. § 2X1.1(b)(2)?

Appellants argue that the district court erred by not

reducing their sentences by three levels pursuant to

U.S.S.G. § 2X1.1(b)(2), which provides for a three level

decrease for a conspiracy offense “unless the defendant

or co-conspirator completed all the acts the conspirators

believed ncessary ... for the successful completion of

the substantive offense or the circumstances demonstrate

that the conspirators were about to complete all such acts

but for apprehension or interruption by some similar

event beyond their control.” U.S.S.G. § 2X1.1(b)(2)

(1998). We review this United States Sentencing

Guideline issue for plain error, since appellants failed to

raise the issue at sentencing. See United States v.

Khawaja, 118 F.3d 1454, 1458 (11" Cir. 1997).

The appellants’ argument ignores U.S.S.G. §

2X1.1(c) which provides, “[w]hen an _ attempt,

solicitation, or conspiracy is expressly covered by

another offense guideline section, apply that guideline

section.” U.S.S.G. § 2X1.1(c) (1998). We have

-39-

elaborated, “where the statutory section defining the

offense of conviction prohibits conspiracy, and that

section is expressly covered by a particular guideline, the

offense level provided by that guideline is controlling,

and U.S.S.G. § 2X1.1 does not apply.” United States v.

Thomas, 8 F.3d 1552, 1565 (11" Cir. 1993). Drug

importation conspiracies are prohibited by 21 U.S.C. §

952(a) and 21 U.S.C.§ 963, and are specifically covered

by U.S.S.G. § 2X1.1. Therefore, pursuant to U.S.S.G. §

2X1.1(c)(1) and Thomas, appellants were not eligible for

a § 2X1.1(b)(2) three-level reduction.

I. Did the District Court Clearly Err When It Attributed

More Than 150 Kilograms of Cocaine to

Defendants?

When calculating the appellants’ base offense level

under U.S.S.G. § 2D1.1, the probation officer attributed

to them a drug quantity of more than 150 kilograms of

cocaine as relevant conduct. Both appellants objected,

asserting that there was no evidence that they were

capable of or intended to provide more than 150

kilograms of cocaine as required under U.S.S.G. §

2D1.1, comment. (N.12). The government bears the

burden of establishing the drug quantity by a

preponderance of the evidence. See United States v.

Mertilus, 111 F.3d 870, 873 (11" Cir. 1997).

We review the district court’s determination of the

drug quantity used to establish a defendant’s base

offense level for clear error. See United States v. Smith,

51 F.3d 980, 981 (11" Cir. 1995).

-40-

The Sentencing Guidelines direct:

In an offense involving an agreement to sell a

controlled substance, the agreed-upon quantity of the

controlled substance shall be used to determine the

offense level ... If, however, the defendant establishes

that he or she did not intend to provide, or was not

reasonably capable of providing, the agreed-upon

quantity of the controlled substance, the court shall

exclude from the offense level determination the amount

of controlled substance that the defendant establishes

that he or she did not intend to provide or was not

reasonably capable of providing.

U.S.S.G. § 2D1.1, comment. (N.12).

In a similar factual situation, we held, “it would have

been impossible for the [district] court to have found that

[the defendant] did not possess the intent to produce any

drugs given the jury’s guilty verdict on the sole count of

conspiring to distribute the cocaine base. Otherwise, the

district court would have had to throw out the conviction

... * United States v. Williams, 144 F.3d 1397, 1403 (11"

Cir. 1998). Likewise, in another case where no cocaine

was seized, we found no clear error where “[t]he

preponderance of the evidence ... established that all of

the appellants knew that the scheme entailed stealing 300

kilograms of cocaine.” United States v. Chirinos, 112

F.3d 1089, 1103 911" Cir. 1997).

-4]-

In this case, evidence showed that Ravelo had been

in the importing business for five years, was able to

describe in detail the plan necessary to complete the deal,

gave Agent Tanner $15,000 cash to cover his expenses,

was observed building secret compartments into a boat,

and had $230,000 in cash on his person and in his

residence at the time of his arrest. Base don this

evidence, it was not error for the district court to find

that Ravelo was capable of and intended to import the

agreed upon amount - 150 - plus kilograms - of cocaine.

The evidence also demonstrates Torres’s intent and

capacity to import 150 - plus kilograms of cocaine.

Torres had indicated to an informant that one of his

boats would be used to import the cocaine, and he stated

the he had the ability to import 300 kilograms of

cocaine, The boats seized from his residence could

conceal between 240 and 320 kilograms of cocaine a

piece. This evidence adequately supports the district

court’s drug amount finding.

J. Did the District Court Err By Not Granting Torres a

Mitigating-Role Reduction Pursuant to U.5.S.G. §

| 3B1.2?

| We review a district court’s determination of whether

| a defendant qualifies for a minor role reduction for clear

error only. See United States v. Rodriguez De Varon,

175 F.3d 930, 934 (11" Cir.), cert denied, US. _,

120 S.Ct. 424 (1999). Torres, as the proponent of the

downward adjustment, “bears the burden of proving a

mitigating role in the offense vy a preponderance of the

-42-

SEE Eee ce ONS ee ere

evidence.” /d. at 939. We will generally uphold the trial

court’s sentencing determination “[s]o long as the basis

of the trial court’s decision is supported by the record

and does not involve a misapplication of a rule of law.”

Id. at 945. Because evidence demonstrated that Torres

had knowledge of the conspiracy scheme, had stated that

he had a boat capable of traveling long distances and

modified to hide cocaine, and was found in possession

of two such boats, the district court did not err by not

giving Torres a minor or minimal role reduction.

Ill. CONCLUSION

Because we find no reversible error, we AFFIRM.

AFFIRMED.

CASE NO. 98-6681

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

‘ TONY RAVELO,

9 and ALEJANDRO TORRES,

Appellants/Defendants,

vs.

UNITED STATES OF AMERICA,

Appellee/Plaintiff.

On Appeal From The United States District Court

For The Southern District of Alabama, Mobile

Division, Criminal Division Case No. 96-Cr-181-1

PETITION FOR REHEARING OF

APPELLANT, TONY RAVELO

Rhonda A. Anderson, Esq. Arturo V. Hernandez, Esq.

‘ Rhonda A. Anderson, P.A. Arturo V. Hernandez, P.A.

Counsel for Tony Ravelo Counsel for Tony Ravelo

j 2420 Coral Way 2420 Coral Way

Miami, Florida 33145 Miami, Florida 33145

Telephone: (305) 854-8529 Telephone: (305) 854-8529

Facsimile: (305) 848-8406 Facsimile: (305) 848-8406

TONY RAVELO VS. UNITED STATES CASE NO. 98-668 1

CERTIFICATE OF INTERESTED PERSONS

Undersigned counsel for the Appellant, Tony Ravelo,

hereby certifies pursuant to Eleventh Circuit Rule 26-1.1

that the following is a complete list of persons and

entities who have an interest in the outcome of this case.

Rhonda A. Anderson, Esq., Appellate Counsel

Jose R. E. Batista, Esq., Trial Counsel-Concepcion

Rhadames C. Batista, Esq., Trial Counsel-Ravelo

Miguel Ignacio Cabal, Codefendant

Orlando Concepcion, Codefendant

Hon. Robert L. Dubé, U.S. Magistrate Judge, So. Distr. Fla.

J. Don Foster, United States Attorney

Deborah A. Griffin, Assistant U.S. Attorney-Trial

Arturo V. Hernandez, Esq., Appellate Counsel

Charles A. Kandt, Esq., Assistant U.S. Attorney-Trial

Dinnis J. Knizley, Esq., Trial Counsel-Cabal

John H. Lipinski, Esq., Appellate Counsel-Torres

Hon. Bert W. Milling, Jr., U.S. Magistrate Judge

Tony Ravelo, Appellant/Defendant

E. T. Rolison, Jr., Esq., Assistant U.S. Attorney-Trial

H. Frank Rubio, Esq., Trial Counsel-Alejandro Torres

Marc V. Seibert, U.S. Probation Officer

Marcia G. Shein, Esq., Counsel for Sentencing-Ravelo

Hon. William H. Steele, U.S. Magistrate Judge

Alejandro Torres, a/k/a Alex, Codefendant

Hon. Richard W. Vollmer, Jr., U.S. District Court Judge

Thomas E. Scott, United States Attorney

Sheldon Robert Zilbert, Esq., Trial Counsel

Rhonda A. Anderson, Esq.

CERTIFICATE OF TYPE SIZE AND STYLE

The undersigned hereby certifies that the type size

and style in this brief is 14 point Times New Roman

Scalable type.

-46-

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS .... C-i

CERTIFICATE OF TYPE SIZE AND STYLE ...... i

pp ee | ee ree Vv

STATEMENT OF ADOPTION .. 0... cs cccsveces l

STATEMENT OF FACTS NECESSARY FOR

EE cau heise cane ne encee ee eens l

ARGUMENT I:

IN LIGHT OF APPRENDI V. NEW JERSEY, 530 U.S.

__, 120 S.Ct. 2348, 2000 WL 807189 (2000),

THIS COURT SHOULD REHEAR THE APPELLANTS’

ARGUMENT REGARDING THE DISTRICT COURT’S

ERROR IN ASSESSING THAT THE CONSPIRACY

INVOLVED AT LEAST 150 KILOGRAMS OF

COCAINE, BECAUSE THE JURY MUST DETERMINE

THE QUANTITY OF COCAINE 2.0... .0 ccc cccccees 3

LEE oc ba Wa ace acake i bone Oe eee Cee 8

CERTIFICATE OF SERVICE & COMPLIANCE .. 9

-47-

TABLE OF CITATIONS

Table of Cases:

* Apprendi v. New Jersey,

530 U.S. __120 S.Ct. 2348, 2000 WL 807189

CE i See 6 owe Ks 28 He ore 3, passim

Griffith v. Kentucky,

479 US. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). 8

United States v. Aguayo-Delgado, __ F.3d _, 2000

WL 988128, (8" Cir., July 18, 2000), .......... 7

United States v. Henderson,

___ F. Supp. ___, 2000 WL 1006054 (S.D.

ee ee OND his We deka Catek ees 7

United States v. Jones,

free att oe errr Ny

United States v. Ubakanma,

215 F.3d 421, 2000 WL 749397 (4" Cir.

ee Ra A oat wk eek Seo oe was 00's Seen 7-8

United States v. Sheppard,

__ F.3d. __, 2000 WL 988127 (8" Cir. July

Se x cue Cada ee hee ae aks Evadee eee 7

STATEMENT OF ADOPTION

Pursuant to Rule 28(i) of the Federal Rules of

Appellate Procedure, and Local Rule 28(f), the

Appellant Ravelo adopts any issues the Co-Appellant,

Alejandro Torres, may raise in a petition for rehearing or

rehearing en banc before this Court. Brief.

STATEMENT OF FACTS NECESSARY FOR REHEARING

The indictment charged Tony Ravelo with conspiracy

to import cocaine in violation of Title 21 U.S.C. § 963,

which imposes the penalty provisions of Title 21 U.S.C.,

§ 960.

The jury instructions in the instant case specifically

removed the issue of the quantity of drugs from the

jury’s consideration. The charge instructed the jury that

it only had to find a “measurable amount” of cocaine

was involved in the offense, but not more than 800

kilograms of cocaine, as the Indictment charged. The

charge provided:

The Government is not required to prove the

actual amount of the controlled substance that

was the object of the alleged conspiracy. The

Government must prove beyond a reasonable

doubt, however, that a measurable amount of the

controlled substance was, in fact, the object of the

alleged conspiracy.

(R_-_-15;R_-___)(emphasis added).

Therefore, the jury charge did not require the jury to

determine whether a “measurable amount” of cocaine

was “5 kilograms or more.”

-49-

Testimony of Special Agent, Joseph Goulet

At trial, Agent Goulet testified that he examined

three vessels seized at the time of the arrest of the

defendants on October 29, 1997 — 13 months after the

original indictment was filed. (R1-1,23,29). The

Government offered no testimony or evidence to show

that one of the vessels, a “Star Fire,’ was part of the

conspiracy charged in the instant indictment. Based

upon this lack of evidence, defense counsel vigorously

objected to any testimony regarding the Star Fire.

Defense counsel also asserted that the Government failed

to provide any notice as required under Federal Rule of

Evidence 404(b) that any such evidence would be

offered at trial. (R9-424). Nevertheless, the District

Court denied defense counsel’s objections, ruling that

such was not 404(b) evidence. (R9-424).

With respect to the open fisherman vessel, Mr.

Goulet was unable to render any opinion that the vessel

was fitted with concealed access compartments, because

at the time of its seizure after Ravelo’s arrest, the vessel

was still incomplete. (R9-430,442).

In addition, with regard to the Gulfstream vessel,

over defense counsel’s objection, (R9-442), Mr. Goulet

opined that a total of 692 kilograms could have been

concealed in the ten bins or compartments in the vessel.

(R9-451-53). However, Agent Goulet agreed that at the

time he examined the vessel, the ten bins were not

concealed, because they were open and on the top of the

deck. (R9-481). In fact, ten plastic access hatches that

were consistent with the size of the “concealed” bins in

the top of the deck, were found laying in the same area

where the boat was seized. (R9-482-83,485). Further, at

-50-

the time the vessel was seized, one of the hatches was

placed over one of the bins. (R9-484).

Lastly, with respect to the Star Fire, over defense

counsel’s renewed objection that such evidence was

irrelevant and unduly prejudicial based upon the lack of

evidence showing that the vessel was involved in the

charged conspiracy, (R9-453,463), Agent Goulet

testified that the compartment he found could have held

300 to 320 kilogram sized packages. (R9-468).

ARGUMENT I

IN LIGHT OF APPRENDI V. NEW JERSEY, 530 U.S.

___, 120 S.Ct. 2348, 2000 WL 807189 (2000),

THIS COURT SHOULD REHEAR_ THE

APPELLANTS’ ARGUMENT REGARDING THE

DISTRICT COURT’S ERROR IN ASSESSING THAT

THE CONSPIRACY INVOLVED AT LEAST 150

KILOGRAMS OF COCAINE, BECAUSE THE JURY

MusT DETERMINE THE QUANTITY OF COCAINE.

After Ravelo filed his Initial Brief and Reply Brief,

the Supreme Court issued its decision in Apprendi v.

New Jersey, 530 U.S. __, 120 S.Ct. 2348, 2000 WL

807189 (2000), holding that “other 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.

The jury instructions in the instant case specifically

removed the issue of the quantity of drugs from the

jury’s consideration. The charge instructed the jury that

it only had to find a “measurable amount” of cocaine

was involved in the offense, but not more than 800

kilograms of cocaine, as the Indictment charged. The

«$2.

semester

charge provided:

The Government is not required to prove the

actual amount of the controlled substance that

was the object of the alleged conspiracy. The

Government must prove beyond a reasonable

doubt, however, that a measurable amount of the

controlled substance was, in fact, the object of the

alleged conspiracy.

(R_-_-15;R_-____)(emphasis added).

: As a result, the jury charge did not require the jury to

determine whether a “measurable amount” of cocaine

was “5 kilograms or more,” «- as is necessary to impose

the greater penalty provisions of 21 U.S.C. §

960(b)(1)(B). Tony Ravelo_ was charged with

conspiracy to import cocaine in violation of Title 21

U.S.C. § 963, which imposes the penalty provisions of

Title 21 U.S.C., § 960. Section 960 provides that an

individual who is convicted of a violation of 21 U.S.C.

§ 952 [importation], is only subject to the minimum

mandatory provisions under section (B)(1)(B) if the

quantity of drugs is “5S kilograms or more of a mixture of

substance containing a detectible amount of

cocaine.....”

The instant case involved a dry conspiracy in which

no cocaine was imported. Thus, the issue of what

constituted a “measurable amount” of drugs was one of

the central issues that the Government sought to show at

trial with the alleged space that would have existed in

hatches or compartments in an incomplete boat that the

Government a,’eged would be used in the dry

conspiracy. Moreover, the Government’s evidence that

the vessels they claimed were “involved” in the

conspiracy, is at best, scant. First, the Government

offered no testimony or evidence to show that one of the

vessels, a “Star Fire,” was part of the conspiracy charged

in the instant indictment. Based upon this lack of

evidence, defense counsel vigorously objected to any

testimony regarding the Star Fire.’ (R9-453,463,468).

With respect to the open fisherman vessel, Mr.

Goulet was unable to render any opinion that the vessel

was fitted with concealed access compartments, because

at the time of its seizure after Ravelo’s arrest, the vessel

was still incomplete. (R9-430,442).

In addition, with regard to the Gulfstream vessel,

over defense counsel’s objection, (R9-442), Mr. Goulet

opined that a total of 692 kilograms could have been

concealed in the ten bins or compartments in the vessel.

(R9-451-53). However, Agent Goulet agreed that at the

time he examined the vessel, the ten bins were not

concealed, because they were open and on the top of the

deck. (R9-481). In fact, ten plastic access hatches that

were consistent with the size of the “concealed” bins in

the top of the deck, were found laying in the same area

where the boat was seized. (R9-482-83,485). Further, at

the time the vessel was seized, one of the hatches was

placed over one of the bins. (R9-484). Accordingly,

the evidence showed that this vessel was not the vessel

contemplated in the conspiracy charged.

Further, at sentencing, Tony Ravelo vigorously

Defense counsel also asserted

that the Government failed to provide any notice as required

under Federal Rule of Evidence 404(b) that any such

evidence would be offered at trial. (R9-424). Nevertheless,

the District Court denied defense counsel’s objections, ruling

that such was not 404(b) evidence. (R9-424).

43.

disputed the drug quantity calculations that appeared in

the Presentence Investigation Report. (R12-67-70). The

Court denied said objection, and sentenced Mr. Ravelo

under Criminal History Category I to life imprisonment

together with a five year term of supervised release and a

special assessment of $100.00. (R12-80-81; R1-159).

Aprendi applies to drug quantities that increase the

penalty imposed. See United States v. Aguayo-

Delgado, _—~F.3d__, 2000 WL 988128 (8" Cir., July

18, 2000), United States v. Sheppard, _—_—sF.3d. _,

2000 WL 988127 (8" Cir. July 18, 2000).

The appropriate relief under Apprendi is

resentencing to the lesser provisions of the statute. See

United States v. Henderson, _ F. Supp. ___, 2000

WL 1006054 (S.D. W.Va. July 19, 2000)(“[F]ailure to

allege the specific drug amount in the indictment is not

fatal and does not require dismissal of the criminal

action, but instead merely limits punishment to the

lowest statutory range provided by the statute. See

generally United States v. Ubakanma, 215 F.3d 421,

2000 WL 749397 (4 Cri. June 12, 2000)(finding that

the statutory aggravating fact, “affects a financial

transaction,” in 18 U.S.C. §3413 is an element of the

offense, and vacating sentence and remanding to the

district court for sentence pursuant to lesser felony

provisions because the statutory aggravating

circumstance was not alleged in the indictment); see

also United States v. Jones, 172 F.3d 1115 (9" Cir.

1999)(on remand from the Supreme Court decision

declaring that the federal carjacking statute sets forth

three separate offenses, and remanding to the district

court for resentencing)). Alternatively, the sentence of

Ravelo should be vacated and the cause remanded for

-54-

further proceedings consistent with Apprendi.

Tony Ravelo is entitled to the benefits of Apprendi in

his direct appeal. See Griffith v. Kentucky, 479 US.

314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

Accordingly, the sentence of Tony Ravelo should be

vacated and remanded for resentencing.

-55-

CONCLUSION

Based on the foregoing reasons and authorities, the

Appellant, Tony Ravelo, respectfully requests that this

be reversed and remanded for a _ new trial, or,

alternatively, for resentencing.

Respectfully submitted,

ARTURO V. HERNANDEZ, ESQ.

RHONDA A. ANDERSON, ESQ.

-56-

CERTIFICATE OF SERVICE AND COMPLIANCE

I HEREBY CERTIFY that a true and exact copy of

the foregoing Petition for Rehearing containing 1,604

words (including all headings and the Statement of

Adoption) was mailed this 20" day of August, 2000,

Charles A. Kandt, Esq., Assistant United States

Attorney, Office of the United States Attorney, 63 South

Royal Street, Riverview Plaza, Suite 600, Mobile,

Alabama 36602, and John H. Lipinski, Esq., Attorney

for Alejandro Torres, 1455 N.W. 14" Street, Miami,

Florida 33125.

ARTURO V. HERNANDEZ, P.A. RHONDA A. ANDERSON, P.A.

Arturo V..Hernandez, Esq. Rhonda A. Anderson, Esq.

2420 Coral Way 2420 Coral Way

Miami, Florida 33145 Miami, Florida 33145

Telephone: (305) 854-8529 Telephone: (305) 854-8529

Facsimile: (305) 858-8406 Facsimile: (305) 858-8406

Florida Bar No: 324078 <rhoander@bellsouth.net>

Florida Bar No: 708038

-57-

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-6681

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ALEJANDRO TORRES a.k.a.

ALEX, TONY RAVELO,

Defendants-Appellants.

On Appeal from the United States District Court

for the Southern District of Alabama

September 8, 2000

Before TJOFLAT, BARKETT and WILSON, Circuit

Judges.

PER CURIAM:

The petition(s) for rehearing filed by the Appellants,

Alejandro Torres and Tony Ravelo, are DENIED.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

-58-

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-6681

Non-Argument Calendar

-District Court Docket No. 96-00181-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ALEJANDRO TORRES a.k.a.

ALEX, TONY RAVELO,

. Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Alabama

Before TJOFLAT, BARKETT and WILSON, Circuit

Judges.

JUDGMENT

These causes came to be heard on the transcript of

the record from the United States District Court for the

-Southern District of Alabama, and were taken under

submission by the Court upon the records and briefs on

file, pursuant to Eleventh Circuit Rule 34-3;

UPON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this Court that the

judgments of convictions of the said District Court and

sentences imposed in these causes be and the same are

hereby AFFIRMED.

ENTERED: July 31, 2000

For the Court: Thomas K. Kahn, Clerk

By:_Matt Davidson s/s

Deputy Clerk

ISSUED AS MANDATE: SEPT. 20, 2000

-59-

21 U.S.C. § 952.

Importation of controlled substances

(a) Controlled substances in schedule I or II and narcotic

drugs in schedule III, IV, or V; exceptions

It shall be unlawful to import into the customs

territory of the United States from any place outside

thereof (but within the United States), or to import into

the United States from any place outside thereof, any

controlled substance in schedule I or II of subchapter I of

this chapter, or any narcotic drug in schedule III, IV, or

V of subchapter I of this chapter, except that--

(1) such amounts of crude opium, poppy straw,

concentrate of poppy straw, and coca leaves as the

Attorney General finds to be necessary to provide for

medical, scientific, or other legitimate purposes, and

(2) such amounts of any controlled substance in

schedule I or II or any narcotic drug in schedule III, I'V

or V that the Attorney General finds to be necessary to

provide for the medical, scientific, or other legitimate

needs of the United States--

(A) during an emergency in which domestic supplies

of such substance or drug are found by the Attorney

General to be inadequate,

(B) In any case in which the Attorney General finds

that competition among domestic manufacturers of the

controlled substance is inadequate and will not be

rendered adequate by the registration of additional

manufacturers under section 823 of this title, or

that such controlled substance is in limited quantities

exclusively for scientific, analytical, or research uses,

may be so imported under such regulations as the

Attorney General shall prescribe. No crude opium may

-60-

be so imported for the purpose of manufacturing heroin

or smoking opium.

(b) Nonnarcotic controlled substances in schedule III,

IV,or V

It shall be unlawful to import into the customs

territory of the United States from any place outside

thereof (but within the United States), or to import into

the United States from any place outside thereof, any

nonnarcotic controlled substance in schedule III, IV, or

V, unless such nonnarcotic controlled substance--

(1) is imported for medical, scientific, or other

legitimate uses, and

(2) is imported pursuant to such notification, or

declaration, or in the case of any nonnarcotic controlled

substance in schedule III, such import permit,

notification, or declaration, as the Attorney General may

by regulation prescribe, except that if a nonnarcotic

controlled substance in schedule I'V or V is also listed in

schedule I or II of the Convention on Psychotropic

Substances it shall be imported pursuant to such import

permit requirements, prescribed by regulation of the

Attorney General, as are required by the Convention.

In addition to the amount of coca leaves authorized to

be imported into the United States under subsection (a)

of this section, the Attorney General may permit the

importation of additional amounts of coca leaves. All

cocaine and ecgonine (and all salts, derivatives, and

preparations from which cocaine or ecgonine may be

synthesized or made) contained in such additional

amounts of coca leaves imported under this subsection

shall be destroyed under the supervision of an authorized

representative of the Attorney General.

-61-

21 U.S.C. § 960. Prohibited acts A

(a) Unlawful acts

Any person who--

(1) contrary to section 952, 953, or 957 of this title,

knowingly or intentionally imports or exports a

controlled substance,

(2) contrary to section 955 of this title, knowingly or

intentionally brings or possesses on board a vessel,

aircraft, or vehicle a controlled substance, or

(3) contrary to section 959 of this title, manufactures,

possesses with intent to distribute, or distributes a

controiled substance,

shall be punished as provided in subsection (b) of this

- section.

(b) Penalties

(1) In the case of a violation of subsection (a) of this

section involving--

(A) 1 kilogram or more of a mixture or substance

containing a detectable amount of heroin;

(B) 5 kilograms or more of a mixture or substance

containing a detectable amount of--

(i) coca leaves, except coca leaves and extracts of

coca leaves from which cocaine, ecgonine, and

derivatives of ecgonine or their salts have been removed;

(11) cocaine, its salts, optical and geometric isomers,

and salts or isomers;

(111) ecgonine, its derivatives, their salts, isomers, and

salts of isomers; or

(iv) any compound, mixture, or preparation which

contains any quantity of any of the substances referred to

in Clauses (i) through (iii);

described in subparagraph (B) which contains cocaine

base;

(D) 100 grams or more of phencyclidine (PCP) or 1

- kilogram or more of a mixture or substance containing a

detectable amount of phencyclidine (PCP);

(E) 10 grams or more of a mixture or substance

containing a detectable amount of lysergic acid

diethylamide (LSD);

(F) 400 grams or more of a mixture or substance

containing a detectable amount of

N-phenyl-N-[1-(2-phenylethyl)-4-piperidiny]]

propanamide or 100 grams or more of a mixture or

substance containing a detectable amount of any

analogue of N-phenyl-N-[1-(2-phenylethyl)-

4-piperidinyl] propanamide;

(G) 1000 kilograms or more of a mixture or

substance containing a detectable amount of marihuana;

(H) 50 grams or more of methamphetamine, its salts,

isomers, and salts of its isomers or 500 grams or more of

a mixture or substance containing a detectable amount of

methamphetamine, its salts, isomers, or salts of its

isomers.

the person committing such violation shall be sentenced

to a term of imprisonment of not less than 10 years and

not more than life and if death or serious bodily injury

results from the use of such substance shall be sentenced

to a term of imprisonment of not less than 20 years and

not more than life, a fine not to exceed the greater of that

authorized in accordance with the provisions of Title 18,

or $4,000,000 if the defendant is an individual or

$10,000,000 if the defendant is other than an individual,

or both. If any person commits such a violation after a

-63-

prior conviction for a felony drug offense has become

final, such person shall be sentenced to a term of

imprisonment of not less than 20 years and not more

than life imprisonment and if death or serious bodily

injury results from the use of such substance shall be

sentenced to life imprisonment, a fine not. to exceed the

greater of twice that authorized in accordance with the

provisions of Title 18, or $8,000,000 if the defendant is

an individual or $20,000,000 if the defendant is other

than an individual, or both. Any sentence under this

paragraph shall, in the absence of such a prior

conviction, impose a term of supervised release of at

least 5 years in addition to such term of imprisonment

and shall, if there was such a prior conviction, impose a

term of supervised release of at least 10 years in addition

to such term of imprisonment. Notwithstanding any

other provision of law, the court shall not place on

probation or suspend the sentence of any person

sentenced under this paragraph. -No person sentenced

under this paragraph shall be eligible for parole during

the term of imprisonment imposed therein.

(2) In the case of a violation of subsection (a) of this

section involving--

(A) 100 grams or more of a mixture or substance

containing a detectable amount of heroin;

(B) 500 grams or more of a mixture or substance

containing a detectable amount of--

(1) coca leaves, except coca leaves and extracts of

coca leaves from which cocaine, ecgonine, and

derivatives of ecgonine or their salts have been removed;

(11) cocaine, its salts, optical and geometric isomers,

and salts or isomers;

(111) ecgonine, its derivatives, their salts, isomers, and

-64-

salts of isomers; or

(1v) any compound, mixture, or preparation which

contains any quantity of any of the substances referred to

in clauses (1) through (iii);

described in subparagraph (B) which contains cocaine

base;

(D) 10 grams or more of phencyclidine (PCP) or 100

grams or more of a mixture or substance containing a

detectable amount of phencyclidine (PCP);

(E) 1 gram or more of a mixture or substance

containing a detectable amount of lysergic acid

diethylamide (LSD);

(F) 40 grams or more of a mixture or substance

containing a detectable amount of

N-phenyl-N-[1-(2-phenylethyl)-4-piperidiny] ]

propanamide or 10 grams or more of a mixture or

substance containing a detectable amount of any

analogue of N-phenyl-N-[1-(2-phenylethy])

-4-piperidinyl] propanamide;

(G) 100 kilograms or more of a mixture or substance

containing a detectable amount of marihuana; or

(H) 5 grams or more of methamphetamine, its salts,

isomers, and salts of its isomers or 50 grams or more of a

mixture or substance containing a detectable amount of

methamphetamine, its salts, isomers, or salts of its

isomers.

the person committing such violation shall be sentenced

to a term of imprisonment of not less than 5 years and

not more than 40 years and if death or serious bodily

injury results from the use of such substance shall be

sentenced to a term of imprisonment of not less than

twenty years and not more than life, a fine not to exceed

-65-

» Fen Rast toe

the greater of that authorized in accordance with the

provisions of Title 18, or $2,000,000 if the defendant is

an individual or $5,000,000 if the defendant is other than

an individual, or both. If any person commits such a

violation after a prior conviction for a felony drug

offense has become final, such person shall be sentenced

to a term of imprisonment of not less than 10 years and

not more than life imprisonment and if death or serious

bodily injury results from the use of such substance shall

be sentenced to life imprisonment, a fine not to exceed

the greater of twice that authorized in accordance with

the provisions of Title 18, or $4,000,000 if the defendant

is an individual or $10,000,000 if the defendant is other

than an individual, or both. Any sentence imposed under

this paragraph shall, in the absence of such a prior

conviction, include a term of supervised release of at

least 4 years in addition to such term of imprisonment

and shall, if there was such a prior conviction, include a

term of supervised release of at least 8 years in addition

to such term of imprisonment. Notwithstanding any

other provision of law, the court shall not place on

probation or suspend the sentence of any person

sentenced under this paragraph. No person sentenced

under this paragraph shall be eligible for parole during

the term of imprisonment imposed therein.

(3) In the case of a violation under subsection (a) of

this section involving a controlled substance in schedule

I or II, gamma hydroxybutyric acid (including when

scheduled as an approved drug product for purposes of

section 3(a)(1)(B) of the Hillory J. Farias and Samantha

Reid Date-Rape Drug Prohibition Act of 2000), or

flunitrazepam, the person committing such violation

shall, except as provided in paragraphs (1), (2), and (4),

-66-

be sentenced to a term of imprisonment of not more than

20 years and if death or serious bodily injury results from

the use of such substance shall be sentenced to a term of

imprisonment of not less than twenty years and not more

than life, a fine not to exceed the greater of that

authorized in accordance with the provisions of Title 18,

or $1,000,000 if the defendant is an individual or

$5,000,000 if the defendant is other than an individual,

or both. If any person commits such a violation after a

prior conviction for a felony drug offense has become

final, such person shall be sentenced to a term of

imprisonment of not more than 30 years and if death or

serious bodily injury results from the use of such

substance shall be sentenced to life imprisonment, a fine

not to exceed the greater of twice that authorized in

accordance with the provisions of Title 18, or

$2,000,000 if the defendant is an individual or

$10,000,000 if the defendant is other than an individual,

or both. Any sentence imposing a term of imprisonment

under this paragraph shall, in the absence of such a prior

conviction, impose a term of supervised release of at

least 3 years in addition to such term of imprisonment

and shall, if there was such a prior conviction, impose a

term of supervised release of at least 6 years in addition

to such term of imprisonment. Notwithstanding the prior

sentence, and notwithstanding any other provision of

law, the court shall not place on probation or suspend the

sentence of any person sentenced under the provisions of

this paragraph which provide for a mandatory term of

imprisonment if death or serious bodily injury results,

nor shall a person so sentenced be eligible for parole

during the term of such a sentence.

(4) In the case of a violation under subsection (a) of

-67-

this section with respect to less than 50 kilograms of

marihuana, except in the case of 100 or more marihuana

plants regardless of weight, less than 10 kilograms of

hashish, less than one kilogram of hashish oil, or any

quantity of a controlled substance in schedule III, IV, or

V, (except a violation involving flunitrazepam and

except a violation involving gamma _ hydroxybutyric

acid) the person committing such violation shall be

imprisoned not more than five years, or be fined not to

exceed the greater of that authorized in accordance with

the provisions of Title 18, or $250,000 if the defendant

is an individual or $1,000,000 if the defendant is other

than an individual, or both. If a sentence under this

paragraph provides for imprisonment, the sentence shall,

in addition to such term of imprisonment, include (A) a

term of supervised release of not less than two years if

such controlled substance is in schedule I, II, III, or (B) a

term of supervised release of not less than one year if

such controlled substance is in schedule IV.

-68-

U.S.S.G. § 2D1.1

(a) Base Offense Level (Apply the greatest):

(1) 43, if the defendant is convicted under 21 U.S.C.

§ 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. §

960(b)(1), (b)(2), or (b)(3), and the offense of conviction

establishes that death or serious bodily injury resulted

from the use of the substance and that the defendant

committed the offense after one or more prior

convictions for a similar offense; or

(2) 38, if the defendant is convicted under 21 U.S.C.

§ 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. §

960(b)(1), (b)(2), or (b)(3), and the offense of conviction

establishes that death or serious bodily injury resulted

from the use of the substance; or

(3) the offense level specified in the Drug Quantity

Table set forth in subsection (c) below.

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was

possessed, increase by 2 levels.

(2) If the defendant unlawfully imported or exported

a controlled substance under circumstances in which (A)

an aircraft other than a regularly scheduled commercial

air carrier was used to import or export the controlled

substance, or (B) the defendant acted as a pilot, copilot,

captain, navigator, flight officer, or any other operation

officer aboard any craft or vessel carrying a controlled

substance, increase by 2 levels. If the resulting offense

level is less than level 26, increase to level 26.

(3) If the object of the offense was the distribution of

a controlled substance in a prison, correctional facility,

or detention facility, increase by 2 levels.

(4) If (A) the offense involved the importation of

-69-

methamphetamine or the manufacture of

methamphetamine from listed chemicals that the

defendant knew were imported unlawfully, and (B) the

defendant is not subject to an adjustment under § 3B1.2

(Mitigating Role), increase by 2 levels.

(5) If the offense involved (A) an unlawful discharge,

emission, or release into the environment of a hazardous

or toxic substance, or (B) the unlawful transportation,

treatment, storage, or disposal of a hazardous waste,

increase by 2 levels.

(6) If the defendant meets the criteria set forth in

subdivisions (1) to (5) of § 5C1.2 (Limitation on

Applicability of Statutory Minimum Sentences in Certain

Cases) and the offense level determined above is level

26 or greater, decrease by 2 levels.

Controlled Substances and Base

Quantity Offense

Level

l °30 KG or more of Heroin (or the Level

equivalent amount of other Schedule 38

I or II Opiates);

°150 KG or more of Cocaine (or the

equivalent amount of other Schedule

I or II Stimulants);

¢1.5 KG or more of Cocaine Base;

¢ 30 KG or more of PCP, or 3 KG or

more of PCP (actual);

°15 KG or more of

Methamphetamine, or 3 KG or more

of Methamphetamine (actual), or 3

KG or more of Ice";

-70-

Controlled Substances and

Quantity

°300 G or more of LSD (or the

equivalent amount of other Schedule

I or II Hallucinogens);

°12 KG or more of Fentany];

*3 KG or more of a Fentanyl

Analogue;

°30,000 KG or more of Marihuana;

°6,000 KG or more of Hashish;

°600 KG or more of Hashish Oil.

*At least 10 KG but less than 30 KG

of Heroin (or the equivalent amount

of other Schedule I or II Opiates);

*At least 50 KG but less than 150 KG

of Cocaine (or the equivalent amount

of other Schedule I or II Stimulants);

*At least 500 G but less than 1.5 KG

of Cocaine Base;

*At least 10 KG but less than 30 KG

of PCP, or at least 1 KG but less than

3 KG of PCP (actual);

*At least 5 KG but less than 15 KG of

Methamphetamine, or at least 1 KG

but less than 3 KG of

Methamphetamine (actual), or at least

1 KG but less than 3 KG of Ice";

Base

Offense

Level

tt.

Controlled Substances and | Base

Quantity Offense

Level

eAt least 100 G but less than 300 G of

LSD (or the equivalent amount of

other Schedule I or II Hallucinogens);

*At least 4 KG but less than 12 KG of

Fentanyl;

*At least 1 KG but less than 3 KG of

a Fentanyl Analogue;

°At least 10,000 KG but less than

30,000 KG of Marihuana;

*At least 2,000 KG but less than

6,000 KG of Hashish;

*At least 200-KG but less than 600

KG of Hashish Oil.

*At least 3 KG but less than 10 KGof Level

Heroin (or the equivalent amount of 34

other Schedule I or II Opiates);

eAt least 15 KG but less than 50 KG

of Cocaine (or the equivalent amount

of other Schedule I or II Stimulants);

*At least 150 G but less than 500 G of

Cocaine Base;

*At least 3 KG but less than 10 KG of

PCP, or at least 300 G but less than 1

KG of PCP (actual);

79.

Controlled Substances and Base

Quantity Offense

Level

*At least 1.5 G but less than 5 KG of

Methamphetamine, or at least 300 G

but less than 1 KG of

Methamphetamine (actual), or at least

300 G but less than 1 KG of "Ice";

*At least 30 G but less than 100 G of

LSD (or the equivalent amount of

other Schedule | or I] Hallucinogens);

*At least 1.2 KG but less than 4 KG

of Fentanyl;

*At least 300 G but less than | KG of

a Fentanyl Analogue;

*At least 3,000 KG but less than

10,000 KG of Marihuana;

*At least 600 KG but less than 2,000

KG of Hashish;

*At least 60 KG but less than 200 KG

of Hashish Oil.

*At least 1 KG but less than3 KGof Level

Heroin (or the equivalent amount of 32

other Schedule I or II Opiates);

*At least 5 KG but less than 15 KG of

Cocaine (or the equivalent amount of

other Schedule I or II Stimulants);

*At least 50 G but less than 150 G of

Cocaine Base;

Controlled Substances and

Quantity

*At least | KG but less than 3 KG of

PCP, or at least 100 G but less than

300 G of PCP (actual);

*At least 500 G but less than 1.5 KG

Methamphetamine, or at least 100 G

but less than 300 G of

Methamphetamine (actual), or at least

100 but less than 300 G of "Ice";

*At least 10 G but less than 30 G of

LSD (or the equivalent amount of

other Schedule I or I] Hallucinogens);

*At least 400 G but less than 1.2 KG

of Fentanyl;

*At least 100 G but less than 300 G of

a Fentanyl Analogue;

*At least 1,000 KG but less than

3,000 KG of Marihuana;

*At least 200 KG but less than 600

KG of Hashish;

*At least 20 KG but less than 60 KG

of Hashish Oil.

*At least 700 G but less than 1 KG of

Heroin (or the equivalent amount of

other Schedule I or II Opiates);

Base

Offense

Level

-74-

Controlled Substances and Base

Quantity Offense

Level

*At least 3 “ KG but less than 5 KG

of Cocaine (or the equivalent amount

of other Schedule I or II Stimulants);

*At least 35 G but less than 50 G of

Cocaine Base;

*At least 700 G but less than 1 KG of

PCP, or at least 70 G but less than

100 G of PCP (actual);

*At least 350 G but less than 500 G of

Methamphetamine, or at least 70 G

but less than 100 G of

Methamphetamine (actual), or at least

70 G but less than 100 G of "Ice";

eAt least 7 G but less than 10 G of

LSD

(or the equivalent amount of other

Schedule I or II Hallucinogens);

*At least 280 G but less than 400 G of

Fentanyl;

*At least 70 G but less than 100 G of

a Fentanyl Analogue;

*At least 700 KG but less than 1,000.

KG of Manhuana;

*At least 140 KG but less than 200

KG of Hashish;

‘*At least 14 KG but less than 20 KG

of Hashish Oil.

..™

Controlled Substances and Base

Quantity Offense

Level

*At least 400 G but less than 700 G of Level

Heroin (or the equivalent amount of 28

other Schedule! or II Opiates);

*At least 2 KG but less than 3.5 KG

of Cocaine (or the equivalent amount

of other Schedule | or II Stimulants);

eAt least 20 G but less than 35 G of

Cocaine Base;

*At least 400 G but less than 700 G of

PCP, or at least 40 G but less than 70

G of PCP (actual);

eAt least 200 G but less than 350 G of

Methamphetamine, or at least 40 G

but less than 70 G of

Methamphetamine (actual), or at least

40 G but less than 70 G of "Ice";

*At least 4 G but less than 7 G of

LSD (or the equivalent amount of

other Schedule I or II Hallucinogens);

eAt least 160 G but less than 280 G of

Fentanyl;

*At least 40 G but less than 70 G ofa

Fentanyl Analogue;

Controlled Substances and Base

Quantity Offense

Level

*At least 400 KG but less than 700

KG of Marihuana;

*At least 80 KG but less than 140 KG

of Hashish;

eAt least 8 KG but less than 14 KG of

Hashish Oil.

eAt least 100 G but less than 400 G of Level

Heroin (or the equivalent amount of 26

other Schedule | or I! Opiates);

eAt least 500 G but less than 2 KG of

Cocaine (or the equivalent amount of

other Schedule I or I] Stimulants);

At least 5 G but less than 20 G of

Cocaine Base;

eAt least 100 G but less than 400 G of

PCP, or at least 10 G but less than 40

G of PCP (actual);

eAt least SO G but less than 200 G of

Methamphetamine, or at least 10 G

but less than 40 G of

Methamphetamine (actual), or at least

10 G but less than 40 G of "Ice";

At least 1 G but less than 4 G of

LSD (or the equivalent amount of

other Schedule I or I] Hallucinogens);

Fe > a

Controlled Substances and Base

Quantity Offense

Level

*At least 40 G but less than 160 G of

Fentanyl;

*At least 10 G but less than 40 G of a

Fentanyl Analogue;

*At least 100 KG but less than 400

KG of Marihuana;

eAt least 20 KG but less than 80 KG

of Hashish;

*At least 2 KG but less than 8 KG of

Hashish Oil.

eAt least 80 G but less than 100 Gof Level

Heroin (or the equivalent amount of 24

other Schedule I or II Opiates);

eAt least 400 G but less than 500 G of

Cocaine (or the equivalent amount of

other Schedule | or II Stimulants);

*At least 4 G but less than 5 G of

Cocaine Base;

eAt least 80 G but less than 100 G of

PCP, or at least 8 G but less than 10

G of PCP (actual);

eAt least 40 G but less than 50 G of

Methamphetamine, or at least 8 G but

less than 10 G of Methamphetamine

(actual), or ai least 8 G but less than

10 G of "Ice";

poe r Z —

Controlled Substances and Base

Quantity Offense

Level

*At least 800 MG but less than | G of

LSD (or the equivalent amount of

other Schedule I or I] Hallucinogens);

*At least 32 G but less than 40 G of

Fentanyl;

*At least 8 G but less than 10 G of a

Fentanyl Analogue;

*At least 80 KG but less than 100 KG

of Marihuana;

*At least 16 KG but less than 20 KG

of Hashish;

eAt least 1.6 KG but less than 2 KG

of Hashish Oil.

9 At least 60 G but less than 80 G of Level

Heroin (or the equivalent amount of 22

other Schedule I or II Opiates);

*At least 300 G but less than 400 G of

Cocaine (or the equivalent amount of

other Schedule I or II Stimulants);

*At least 3 G but less than 4 G of

Cocaine Base;

eAt least 60 G but less than 80 G of

PCP, or at least 6 G but less than 8 G

of PCP (actual);

-79-

Controlled Substances and Base

Quantity Offense

At least 30 G but less than 40 G of

Methamphetamine, or at least 6 G but

less than 8 G of Methamphetamine

(actual), or at least 6 G but less than 8

G of "Ice";

*At least 600 MG but less than 800

MG of LSD (or the equivalent

amount of other Schedule I or II

Hallucinogens);

*At least 24 G but less than 32 G of

Fentanyl;

eAt least 6 G but less than 8 G of a

Fentanyl Analogue;

*At least 60 KG but less than 80 KG

of Marihuana;

eAt least 12 KG but less than 16 KG

of Hashish; |

eAt least 1.2 KG but less than 1.6 KG

of Hashish Oil.

eAt least 40 G but less than 60 G of Level

Heroin (or the equivalent amount of 20

other Schedule I or II Opiates);

*At least 200 G but less than 300 G of

Cocaine (or the equivalent amount of

other Schedule I or II Stimulants);

eAt least 2 G but less than 3 G of

Cocaine Base;

-80-

Controlled Substances and

Quantity

*At least 40 G but less than 60 G of

PCP, or at least 4 G but less than 6 G

of PCP (actual);

eAt least 20 G but less than 30 G of

Methamphetamine, or at least 4 G but

less than 6 G of Methamphetamine

(actual), or at least 4 G but less than 6

G of "Ice";

*At least 400 MG but less than 600

MG of LSD (or the equivalent

amount of other Schedule I or II

Hallucinogens);

*At least 16 G but less than 24 G of

Fentanyl;

*At least 4 G but less than 6 G of a

Fentanyl Analogue;

*At least 40 KG but less than 60 KG

of Marihuana;

*At least 8 KG but less than 12 KG of

Hashish;

*At least 800 G but less than 1.2 KG

of Hashish Oil;

°40,000 or more units of Schedule |

or II Depressants or Schedule III

substances;

°2,500 or more units of

Flunitrazepam .

Base

Offense

Level

-81-

Controlled Substances and

Quantity

| eAt least 20 G but less than 40 G of

Heroin (or the equivalent amount of

other Schedule I or II Opiates);

eAt least 100 G but less than 200 G of

Cocaine (or the equivalent amount of

other Schedule I or II Stimulants);

*At least 1 G but less than 2 G of

Cocaine Base;

*At least 20 G but-less than 40 G of

PCP, or at least 2 G but less than 4 G

of PCP (actual);

*At least 10 G but less than 20 G of

Methamphetamine, or at least 2 G but

less than 4 G of Methamphetamine

(actual), or at least 2 G but less than

4G of "Ice";

*At least 200 MG but less than 400

MG of LSD (or the equivalent

amount of other Schedule I or II

Hallucinogens);

*At least 8 G but less than 16 G of

Fentanyl;

*At least 2 G but less than 4 G ofa

Fentanyl Analogue;

*At least 20 KG but less than 40 KG

of Marihuana; »

Base

Offense

Level

-82-

Controlled Substances and Base

Quantity Offense

Level

*At least 5 KG but less than 8 KG of

Hashish;

*At least 500 G but less than 800 G of

Hashish Oil;

eAt least 20,000 but less than 40,000

units of Schedule I or II Depressants

or Schedule III substances;

eAt least 1,250 but less than 2,500

units of Flunitrazepam.

*At least 10 G but less than 20 G of Level

Heroin (or the equivalent amount of 16

other Schedule I or II Opiates);

*At least 50 G but less than 100 G of

Cocaine (or the equivalent amount of

other Schedule I or II Stimulants);

*At least 500 MG but less than | G of

Cocaine Base;

*At least 10 G but less than 20 G of

PCP, or at least 1 G but less than 2 G

of PCP (actual);

*At least 5 G but less than 10 G of

Methamphetamine, or at least 1 G but

less than 2 G of Methamphetamine

(actual), or at least 1 G but less than

2 Gof "Ice";

-83-

Controlled Substances and

Quantity

*At least 100 MG but less than 200

MG of LSD (or the equivalent

amount of other Schedule I or II

Hallucinogens);

*At least 4 G but less than 8 G of

Fentanyl;

*At least | G but less than 2 G of a

Fentanyl Analogue;

*At least 10 KG but less than 20 KG

of Marihuana;

*At least 2 KG but less than 5 KG of

Hashish;

*At least 200 G but less than 500 G of

Hashish Oil;

eAt least 10,000 but less than 20,000

units of Schedule I or I] Depressants

or Schedule III substances;

*At least 625 but less than 1,250 units

of Flunitrazepam.

eAt least 5 G but less than 10 G of

Heroin (or the equivalent amount of

other Schedule I or II Opiates);

*At least 25 G but less than 50 G of

Cocaine (or the equivalent amount of

other Schedule | or II Stimulants);

Base

Offense

Level

-84-

Controlled Substances and Base

Quantity Offense

Level

eAt least 250 MG but less than 500

MG of Cocaine Base;

*At least 5 G but less than 10 G of

PCP, or at least SOO MG but less than

1 G of PCP (actual);

*At least 2.5 G but less than 5 G of

Methamphetamine, or at least 500

MG but less than | G of

Methamphetamine (actual), or at least

500 MG but less than | G of "Ice";

eAt least 50 MG but less than 100

MG of LSD (or the equivalent

amount of other Schedule I or II

Hallucinogens);

eAt least 2 G but less than 4 G of

Fentanyl;

eAt least 500 MG but less than | G of

a Fentanyl Analogue;

eAt least 5 KG but less than 10 KG of

Marihuana;

eAt least | KG but less than 2 KG of

Hashish;

*At least 100 G but less than 200 G of

Hashish Oil;

*At least 5,000 but less than 10,000

units of Schedule I or I] Depressants

or Schedule III substances;

Bt.

Controlled Substances and

Quantity

¢ At least 312 but less than 625 units

of Flunitrazepam.

eLess than 5 G of heroin (or the

equivalent amount of other Schedule

I or II Opiates);

*Less than 25 G Cocaine (or the

equivalent amount of other Schedule

I or II] Stimulants);

*Less than 250 MG of Cocaine Base;

*Less than 5 G of PCP, or less than

500 MG of PCP (actual);

eLess than 2.5 G of

Methamphetamine, or less than 500

MG of Methamphetamine (actual),

or less than 500 MG of "Ice";

*Less than 50 MG of LSD (or the

equivalent amount of other Schedule

I or II Hallucinogens);

*Less than 2 G of Fentanyl;

*Less than 500 MG of a Fentanyl

Analogue;

- eAt least 2.5 KG but less than 5 KG

of Marihuana;

Base

Offense

Level

Level 12

-86-

Controlled Substances and Base

Quantity Offense

Level

eAt least 500 G but less than 1 KG of

Hashish;

¢At least 50 G but less than 100 G of

Hashish Oil;

eAt least 2,500 but less than 5,000

units of Schedule I or II Depressants

or Schedule III substances;

*At least 156 but less than 312 units

of Flunitrazepam;

°40,000 or more units of Schedule I'V

substances (except Flunitrazepan).

-87-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.