# Appendix — Ravelo v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1500%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2001 - **Citation:** 532 U.S. 955 ## Text Pa { 2. Supreme Court, U.S \ ase Se 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, V. 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 By 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. 4) 5) 6) 7) 8) 9) 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: © The defendant shall pay the cost of prosecution. 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 i) 4) -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. OR QO The sentence is within the guideline range, that range exceeds 24 months, and the sentence is imposed for the following reasons: OR 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 at 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 a. 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. A. 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 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 3. 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 Florida Bar No: 708038 -57- UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 98-6681 UNITED STATES OF AMERICA, Plaintiff-Appellee, V. 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, V. 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 (C) in any case in which the Attorney General finds 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. (c) Coca leaves 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); (C) 50 grams or more of a mixture or substance i. 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; or (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); (C) 5 grams or more of a mixture or substance 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. (c) DRUG QUANTITY TABLE 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 Level 56 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; a. 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 of 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 Level 30 -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; MM 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"; A. 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- 10 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- 1] 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 Level 18 -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- 13 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 Level 14 -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. 4 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- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1500%3A2. Public record. Not legal advice.