Petition for Writ of Certiorari — Diaz v. United States

Suprace Gout us

001790 may 292008

== OF Ob dete aw

NO.

IN THE SUPREME COURT

OF THE UNITED STATES

OSCAR DIAZ,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

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 OSCAR DIAZ

2222 PONCE DE LEON BLVD, SUITE 500

CORAL GABLES, FLORIDA 33134

TELEPHONE: (305) 444-1400

QUESTIONS PRESENTED FOR REVIEW

Whether the language in this Court’s opinion in

Apprendi v. New Jersey, 530 U.S. 466 (2000)

providing that “any fact [other than a prior conviction]

that increases the penalty for a crime beyond the

prescribed statutory maximum” refers to the maximum

sentence prescribed under the United States Sentencing

Guidelines, because as this Court explained in United

States v. R.L.C., 503 U.S. 291 (1992), the Sentencing

Guidelines are statutes?

Whether the Eleventh Circuit’s opinion in the instant

case regarding the enhancement of the Petitioner's

sentence based upon the quantity of cocaine involved

in the conspiracy, violated this Court’s holding in

Apprendi v. New Jersey, 530 U.S. 466 (2000) and/or

Jones v. United States, 526 U.S. 277 (1999), where:

(A) the offenses charged in the Indictment did not

charge Diaz with an offense involving — five (5)

kilograms or more of cocaine in violation of 21 U.S.C.

S 841,

(B) the trial court did not instruct the yury to determine

the quantity of cocaine, and

(C) Oscar Diaz’ sentence was enhanced from a

minimum of ten (10) years to twenty (20) vears based

upon the trial court’s factual finding that the quantity

of drugs attributable to Diaz was five (5) kilograms or

more, pursuant to 2] U.S.C. § 841(b)(1)(A). even

through that statute was not charged in the Indictment?

Whether an Indictment that does not allege the

IV.

minimum quantity of drugs required under the

charging statute, fails to set forth an essential element

of an offense. and/or violates the Fifth Amendment

Due Process rights and Sixth Amendment guarantees

of notice and jury trial by providing that a defendant's

maximum punishment after application of the United

States Sentencing Guidelines, may be increased trom

10 years to 20 years based solely upon a finding by a

sentencing judge under a preponderance of the

evidence standard, without notice by indictment and

jury trial, that the defendant had the requisite intent

necessary to establish a that he conspired to possess

with intent to distribute or possessed with intent to

distribute five (5) kilograms of more of cocaine?

Whether an Indictment that does not allege the

minimum quantity of drugs required under the

charging statute, fails to set forth an essential element

of an offense, and/or violates the Fitth Amendment

Due Process rights and Sixth Amendment guarantees

of notice and jury trial by providing that a defendant's

minimum punishment under the penalty provisions of

the charging statute, may be increased from a range of

vero to 20 years to a range of 20° years to lite

imprisonment, based solely upon a finding by a

sentencing judge under a preponderance of the

evidence standard, without notice by indictment and

jury trial, that the defendant, who has a prior felons

drug conviction, had the requisite intent necessary to

establish a that he conspired to possess with imtent to

distribute or possessed with intent to distribute five (3S)

Kilograms of more of cocaine?

Vi.

Whether a trial court must sentence a defendant whose

drug conviction violates Apprendi v. New Jersey, 530

U.S. 466 (2000) and or Jones v. United States, 526

U.S. 277 (1999). to an offense level under the United

States Sentencing Guidelines that is the lowest

possible level for the drug specified in the indictment

and charging statute?

Whether the proper standard of review is per se

reversible error where an Indictment that fails to set

forth an essential element of an cffense, and/or violates

the Fifth Amendment Due Process rights and Sixth

Amendment guarantees of notice and jury trial”?

TABLE OF CONTENTS

OUPRSTIONS PRESENTED FOR REVIEW re

TABLE OF CITED AL THORITIES . eee,

OPINIONS BELOW. rai ae oe

PRS NUE 66 cb eA eee bese. Perr ere rere |

CONSTITUTIONAL PROVISIONS

ANE? STAG) Cle 6s i als bowen eeens mE ousse vied as |

° bitth Amendment to the United States

Rc ge ec a ae oe ee ee ear eee

° Siath Amendment to the United States

Constitution .... SAPP er ore 2

° Pg eh? Oe! | re errr eras -

° 4 OR Oe eS. | ee 2

° Pe TBM | AERA Ree eee in ee 6

° SRR Tte Pi Re | ee 7

ou he 8 0 2 ae eS. Se epee oa unr eoe are anean Ae 1 |

STAT ERIN G CW Tie CASE 2g occ cicadas cess 1 |

A. Proceedings in the Courts Below 2.0.2... ‘11

B. Siptoment of Facts... ... 2.6 0cccsnaa. 13

ARGUMENT:

1. PH LANGUAGE IN) THIS COURT'S

OPINION IN APPRENDIAN. NEW JERSEY,

$30 US. 466 (2000) PROVIDING THAI

“ANY PACT [OTHER THAN A) PRIOR

CONVICTION] THAT INCREASES THI

PENALTY FOR A CRIME BEYOND TH

PRESCRIBED STATUTORY MANIMUM™

REPERS TO THE MANIMUM SENTENCI

PRESCRIBED UNDER THE UNITED

STATES SENTENCING GlLTIDELINES,

BEC ALSE AS THISCOURLENPLAINEDIN

UNITEDSTATESV. RLL.G., SOB US. 291

(1992). THE SENTENCING GUIDELINES

Ane DIAGUEOR Ss bs acces bac

A. The U.S. Sentencing Guidelines

Are Statutes and a Detendant’s

Sentence May Not Exceed the

Lowest Maximum Sentence

after Application of the

Guidelines and Limitations on

Sentences Set Forth in the

Charging Statutes ............

B. Alternatively, where — the

Determination of an Essential

Element of an Offense (Other

than Recidivism) Removes the

Discretion of the Sentencing

Court by Requiring the

Detendant to Receive a

Mandatory Minimum Sentence,

That Element must Be

Determined by a Jury Beyond a

Reasonable Doubt ...........

BEFORE INCREASING A DEFENDANT'S

STATUTORY MAXIMUM SENTENCE ON

THE BASIS OF THE QUANTITY. Of

HLEGAL DRUGS A) DEFENDANT A

HITHER CONSTRUCTIVELY POSSESSED

AND/OR CONSPIRED TO POSSESS WITH

INTENT TO DISTRIBUTE, THE

PROSECUTION MUST PROVE THI

QUANTITY OF ILLEGAL DRUGS BEYOND

A REASONABLE DOUBT TOA JURY 22...

A, Under The Due Process Clause

Of The Fifth Amendment And

The Notice And Jury. Trial

(suarantiees

Amendment

Increases

The Sixth

Fact (Other

Than Recidivism). That

Viaximum

Penalty For A Crime, Including

Ihe Quantity o

That A

Hieval Drugs

\ur eed to

Import, Must Be Charged In An

lurs And

Reasonable Doubt

Phe Quantity

Submitted To A

Bevond \

tJ

A

ot Drugs That \

Detendant Intended to Possess

and or Conspired t to Possess

With Intent to Distribute Is An

Essential Element of 21 US.¢

SS) $4] (an 1) and 846 2/

(2) Phe Failure of an Indictment to

Charge an Essential Element of

an Offense, Requires Reversal

ota Conviction

B. Alternatively,

Where a

Defendant's Drug Conviction

Violates Apprendi or Jones, the

Detendant

Resentenced

Should Be

The Lowest

Level Under the United States

Sentencing Guidelines tor the

Drug

Indictment

Statute

CONCLUSION

CERTIFICATE OF SERVIC

\PPENDIN

“Vi

Specified in the

Charging

| pal ately hound |

TABLE OF CITATIONS

TABLE OF CASES:

i/mendarez-Torres v. United States.

S23.US. 224. LIS S.Ct. 1219, 140 L.Fd.2d 350

(1998) 24

Apprendi v. New Jersey,

S30 US. 466. 120 S.Ct. 2348, 147 L.Ed. 2d 435

(2000) passim

Ex parte Bain,

121 U.S. 1,7 S.Ct. 781, 30 L.Ed. 849 (1887) 29

Edwards v. United States,

S23U.S. STL, LIS S.Ct. 1475, 140 L-Ed.2d 703

(1998) | Taig Wan i ee

Jones v. United States,

526 U.S. 277, 119S.Ct. 1215, 143 L-Ed.2d 31]

(1999) | ewaee chan ee

Mistretta v. United States,

488 U.S. 361, 109 S.Ct. 647, 102 L-Fd.2d 714

(1989)... 22.23

Stirone v. United States,

361 US. 212, 80 S.Ct. 270, 4 LiFd.2d 25?

(1960) | 29

United States v. Candelario,

240 F.3d 1300 (11° Cir, 2001), petcert

filed (May 4. 2001) (No.00-9956) 3

l nited States v. Flowal.

234 F.3d 932 (6° Cir. 2000) . 24

United States v. Hester,

199 F.3d 1287 (11 Cir. 2000), rev'd.

- US. -, i21 S.Ct. 336, - L-Ed.2d -

(Oct. 16, 2000) 2.0... ye 26

United States v. Hughes,

-\1l-

213 F.3d 323 (7" Cir. 2000), rev'd.

- U.S. -, 121 S.Ct. 423, - L.Ed.2d -

I AOC yt ne et ea ugg wie aa ae

United States v. Humphrey,

210 F.3d 373 (6" Cir. 2000)(unpub).

rev'd, - U.S. -, 121 S.Ct. 478, - L.Ed.2d -

ee rod a ee ca beaded See

United States v. Jones,

194 F.3d 1178 (10" Cir. 1999), rev'd,

- U.S. -, 120 S.Ct. 2739, 147 L.Ed.2d 1002

as ee ee eeet Ae eee Ses 26

United States v. R.L.C.,

503 U.S. 291, 112 S.Ct. 1329, 117

en ED ss gsc oss aco kbc 4 one bok 1,19-22

United States v. Smith,

215 F.3d 1331 (7" Cir. 2000)(unpubl), rev ‘d,

- U.S. -, 121 S.Ct. 336, 148 L.Ed.2d 270

te er ns Nr re ia rin, ot ha i: Se

United States v. Strayhorn,

- F.3d -, 2001 W.L. 536548, 2001 Fed. App.

0169P (6" Cir., May 22, 2001)(No. 99-5203) ... 24

United States v. Tran,

ee ee Pe BOO ooo kk bebo eeanas 29

United States v. Whitt,

211 F.3d 1022 (7" Cir. 2000), rev'd,

-US. -, 121 S.Ct. 423, 148 L-Ed.2d 432

ey Sar ane eee ata aD

In re Winship,

397 US. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368

SEN ae Cece kee chee ane eae eee 29

-Vill-

OTHER AUTHORITIES:

United States Constitution:

I ee tie Ae Oe ep Dn 1,28

PI ter nie reheat 2,28

UNITED STATES CODE:

Se I ky oe vs nos ky ks he ee 20

ne yaa eae eae een 20

Pe I gl ass enc de ke cases 20

RE Or oa oe bee aee oye daae ets 27

vlc ec Bigg: Te na 21

ese ioc ge os eee ke Ge So ee 22

DN IONE haa Dyan yet Cheek pete a 20

Fe SA ees PU UD 6. cope co nese edsedeuncs 20

He ES oi da es ce rd eae eee eee 2,12

eR rrr eater rere or iaae 2 >.

Pe EE ae ey UES cece TE ee 27-28

Nghe cra ne a to ee ae 6,12,27

ee a a aoe no Ors eee ncaa okt ss

EE or a I Ae | oh ne VsbduoO

Nn Ss he ne as daa

OPINIONS BELOW

The unreported opinion of the Eleventh Circuit was

entered on January 11, 2001. (Pet. App. 17-37). The Eleventh

Circuits unpublished order entitled “On Petition(s) for

Rehearing and Suggestion(s) for Rehearing Fn Banc,” was

entered on February 27, 2001 (Pet. App. 62), and the Eleventh

Circuits Mandate issued on March 14, 2001.

The appeal to the Eleventh Circuit arose trom the

Petitioner’s Judgment and Commitment entered on November

5, 1999, after a jury trial. (Pet. App. at 4-16).

JURISDICTION

The Judgment of the United States Court of Appeals

for the Eleventh Circuit was entered on January 11, 2001. A

timely Petition for Rehearing Ln Banc, was filed on February

1, 2001, and on February 27, 2001, the Eleventh Circuit

entered an order denying the Petition for Rehearing En Banc.

(Pet. App. at 58). Thereatter, on March 14, 2001 the Eleventh

Circuit issued a Mandate on its Judgment.

~The jurisdiction of this Court to review the judgment

of the Eleventh Circuit is conferred under Tithe 28 U.S.C. §

1254¢1) and Sup.Ct. Rule 10.

CONSTITUPIONAL PROVISIONS & STATUTES

U.S. Const., amend V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment. or

indictment of a Grand Jury, except in cases arising in the land

or naval forces, or inthe Militia, when in actual service in time

of War or public danger, nor shall any person be subject for

the same offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken

for public use, without just compensation.

U. S. Const. amend VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district. wherein the crime shall have been

committed, which district) shall have been previously

ascertained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for his

defence.

21 U.S.C. § 841(a) - Unlawful acts

Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a contro!led

substance; or

(2) to create, distribute, or dispense, or possess with

Intent to distribute or dispense, a counterfeit substance.

21 U.S.C. § 841(b) - Penalties - (Excerpt)

Except as otherwise provided in section 859, S60, or

S61 of this title, any person who violates subsection (a) of this

section shall be sentenced as follows:

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

section involving--

~The excerpts include penalties for cocaine only.

on

(11) 5 kilograms 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 of isomers;

(Il) 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

subclauses (1) through (III);

(ii) 5O grams or more of a mixture or substance

described in clause (11) which contains cocaine base;

* * *

such person shall be sentenced to a term of imprisonment

which may not be less than 10 years or more than life and if

death or serious bodily injury results from the use of such

substance shall be not less than 20 years or 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 1s other than

an individual, or both. Ifany 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

which may not be 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 ts an individual or $20,000,000 if

the defendant ts other than an individual, or both. Ifany person

commits a violation of this subparagraph or of section 849,

SS9, 860. or 861 of this tithe after two or more prior

ee

convictions for a felony drug offense have become final, such

person shall be sentenced to a mandatory term of life

imprisonment without release and fined in accordance with the

preceding sentence. Any sentence under this subparagraph

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

subparagraph. No person sentenced under this subparagraph

shall be eligible for parole during the term of imprisonment

imposed therein.

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

section involving--

* * *

(11) 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 trom which cocaine, ecgonine, and derivatives of

ecgonine or their salts have been removed;

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

and salts of isomers;

(II) 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

subclauses (1) through (II):

(i) 5 grams or more of a@ mixture or substance

described in clause (11) which contains cocaine base:

* * x

such person shall be sentenced to a term of imprisonment

which may not be less than S$ years and not more than 40 years

i

and if death or serious bodily injury results from the use of

such substance shall be not less than 20 years or more than life,

a fine not to exceed the greater of that authorized in

accordance with the provisions of Title 1&8, or $2,000,000 if the

defendant ts an individual or $5,000,000 if the defendant ts

other than an individual, or both. Ifany 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 which may not be 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 ts other than an individual, or both. Any

sentence imposed under this subparagraph shall, in the absence

of such a prior conviction, include a term of supervised release

of at least 4 vears 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

ofimprisonment. Notwithstanding any other provision of law,

the court shall not place on probation or suspend the sentence

of any person sentenced under this subparagraph. No person

sentenced under this subparagraph shall be eligible for parole

during the term of imprisonment imposed therein.

(C) In the case of a controlled substance in schedule |

or I]... . except as provided in subparagraphs (A), (B), and

(1D), such person shall 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 or 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 ifthe

defendant is an individual or $5,000,000 if the defendant ts

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 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 subparagraph which

provide for a mandatory term of imprisonment if death or

serious bodily injury results, nor shal! a person so sentenced be

eligible for parole during the term of such a sentence.

21 U.S.C. § 846 - Attempt and Conspiracy

Any person who attempts or conspires to commit any offense

defined in this subchapter shall be subject to the same penalties

as those prescribed for the offense, the commission of which

was the object of the attempt or conspiracy.

ie

U.S.S.G. § 2D1.1 (Excerpt)

§ 2D1.1. Unlawtul Manutacturing, Importing, Exporting, or

Tratficking (Including Possession with Intent to Commit These

Otfenses); Attempt or Conspiracy.

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

(1) 43, if the defendant ts convicted under 21 ULS.C. §

S41 (b)C1 (A), (bCI)CB), or (bCICC), or 2E USC. § 960(0b)(C1),

(b)(2), or (b)(3), and the offense of conviction establishes that

death or serrous 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, 1f the defendant ts convicted under 21 U.S.C. §

S41¢b) L(A), (b)C1)CB), or (b)C10C), of 21E US.C. § 960(b)C1),

(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

Fable set forth in subsection (c) below.

(b) Specific Offense Characteristies

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

possessed, increase by 2 levels.

(2) Ifthe defendant unlaw fully imported or exported a

controiled substance under cireumstanees in which (A) an

aircraftother than a regularly scheduled commercial air carrer

Was used to import or export the controlled substance, or (B)

the defendant acted as a pilot, copilot, captain, navigator, fight

officer, orany 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

Phe excerpts include penalties for cocaine, but not cocaine

base

rny

|

a controlled substance in a prison, correctional facility, or

detention facility, increase by 2 levels.

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

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

lev els.

(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 § SC 1.2 (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 Base

and Quantity Offense

Level

** * Level 38

°150 KG or more of Cocaine (or the

equivalent amount of other Schedule | or

Il Stimulants):

2 lining Level 36

*At least SO KG but less than 150 KG of

Cocaine (or the equivalent amount of

other Schedule | or Hf Stimulants):

8)

Controlled Substances

and Quantity

* * *

eAt least 1S KG but less than 50 KG of

Cocaine (or the equivalent amount of

other Schedule | or IL Stimulants);

* * *

eAt least S KG but less than 1S KG of

Cocaine (or the equivalent amount of

other Schedule | or IE Stumulants):

* * *

eAt least 3.5 KG but less than § KG of

Cocaine (or the equivalent amount of

other Schedule | or I Stimulants):

* Ok Ok

eAt least 2 KG but less than 3.5 KG of

Cocaine (or the equivalent amount of

other Schedule | or I Stimulants):

* Ok Ok

At least SOO G but less than 2 KG of

Cocaine (or the equivalent amount of

other Schedule | or TE Stimulants):

* Ok Ok

At least 400 G but less than S00 G of

Cocaine (or the equivalent amount of

other Schedule | or I Stimulants):

Base

Offense

Level

Level 34

Level 32

Level 30

Level 28

Level 26

Level 24

7]

Controlled Substances

and Quantity

* * *

At least 300 G but less than 400 G of

Cocaine (or the equivalent amount of

other Schedule | or I Stimulants):

* *

*At least LOO G but less than 200 G of

Cocaine (or the equivalent amount of

other Schedule | or I] Stimulants);

* ok Ox

At least SOG but less than 100 G of

Cocaine (or the equivalent amount of

other Schedule | or I] Stimulants);

* *

eAt least 25 G but less than 50 G of

Cocaine (or the equivalent amount of

other Schedule I or [I] Stimulants):

* * *

eLess than 25 G Cocaine (or the

equivalent amount of other Schedule | or

I] Stumulants):

= Pe}.

Base

Offense

Level

Level 22

Level 18

Level 16

Level 14

Level 12

IN THE

SUPREME COURT OF THE UNTTED STATES

No.

OSCAR DIAZ,

Petitioner.

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

bit UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Oscar Diaz, Detendant and Appellant in the courts

below, respectfully petitions for a writ of certiorari to review

the yudyment of the United States Court of Appeal tor the

Eleventh Circuit entered in this case on January 11. 2001. and

Order entered on February 27, 2001, denying his Petition for

Rehearing and Suggestion tor Rehearing En Banc” Said

Petition specifically requested a rehearing as to the quantity of

drugs attributed to Qiaz in light of this Court's opinions in

ipprendi v. New Jersey, 530 U.S. 466, 120 8.Ct. 2348, 147

L bd.2d 435 (2000) and or Jones v. United States, 526 US

277. 119 S.Ct TITS, 143 Lobedo 2d 31161999), (See. Pet. App

at 38-61)

STATEMENT OF THE CASE

\. Proceedings in the Courts Below:

Phe indictment upon which Petthoner raz was tried

alleged in Count PT that the defendants conspired to possess

with intent to distribute a “detectable amount of cocaine” in

violation of 21 U.S.C. § 846. Similarly, Count II charged

possession with intent to distribute a “detectable amount of

cocame™ in violation of Title 21 U.S.C. § 841(a)(1) and Title

IX US.C. § 2. (R1-22). Neither count specified a minimum

quantity of drugs, nor did the minimum quantity of drugs

necessary to apply the enhanced penalty provisions of 21

U.S.C. § 841(b).’

After deliberating for five and one-half (5 2) hours, the

jury convicted Diaz of Counts I and IL. (R8-311,317-318).

At sentencing, Oscar Diaz vigorously objected to the

quantity of cocaine, and requested a downward departure for

minor role and from the career criminal enhancement. (R1-

11S, 117). The PSR attributed a total of 14,043 grams of

cocaine to Diaz by arguing that the cocaine was in “plain

view” or was otherwise foreseeable. Diaz argued that the

cocaine Was not in plain view, and the evidence failed to show

that he had constructive possession of the cocaine, because the

evidence did not show that: (1) Oscar Diaz observed or knew

that the duffle bag that defendant Chavarry picked up during

the five (S) minutes that Chavarry was in apartment 209

contained any cocaine, (2) Oscar Diaz entered the hallway or

master bathroom of apartment 209, or observed or knew that

either bathroom had cocaine secreted in the walls; (3) Oscar

Diaz observed any cocaine inside the apartment,’ and or (4) the

apartment was an obvious stash house. (R1-115).

The Indictment also contained a forfeiture provision pursuant

to Tithe 21 U.S.C. § 883, which only temized $52,000 seized trom co

defendant Rafael Chavarry. Jr. (R1-22-2)

* Based upon the lower purity of the cocaine on the kitchen

counter, a proper!y instructed pury could have found that Diaz only

conspired and intended to possess or attempt to possess with the intent

to distribute the cut cocaine

| ,

However, for the purposes of sentencing, Diaz argued

that the most that the Government could argue that he could

have observed was the 994.1 grams 45° pure cocaine located

on the kitchen counter - - which was approximately /a/f the

purity of all the other cocaine found in the bathrooms or duffle

bag. (RI-1 14.115: R6-103-4.1 14-15, 137; RET-80-89).

After denying all of Oscar Diaz’ objections except as

to the fine, the District Court sentenced Diaz to a 20 year

mandatory minimum term of imprisonment, followed by a

term of 10 years supervised release. (R2-160).

Without oral argument, the court of appeals affirmed

Diaz's conviction and sentence, and denied his Petition tor

Rehearing and Suggestion for Rehearing En Banc, in which

Diaz urged the Eleventh Circuit to apply this Court's ruling in

Apprendi to the trial court's findings regarding the quantity of

cocaine attributable to Diaz. (Pet. App. at 17-37,62).

B. Statement of Facts:

On April 15, 1999, an officer surveilled a residence

that was “part of an ongoing investigation,” and observed a

dark colored Toyota Tercel parked outside. (R6-9,11). After

surveilling the residence for approximately four and one-half

hours, the officer observed Oscar Diaz exit the residence

alone, with nothing in his hands, enter the Toyota and drive off

to another unspecified residence where he exited empty

handed, and entered tor approximately ten minutes. Diaz then

exited the residence - empty handed, and drove off in the

Toyota. (R6-11-13).

The officer next surveilled Diaz drive to Rafael

Morales’ house (his cousin). (R6-13-14.42). When Diaz

arrived, several individuals were standing outside of the

Morales residence. Diaz exited the Toyota - again empty

handed, and walked over and talked for a couple of minutes to

Morales and Rafael Barreto. (R6-14). No officer or other

witness overheard the conversation. (R6-15,44-45).

at.

Thereafter, Diaz reentered the Toyota and backed out

of the driveway. (R6-14). In the meantime, Morales and

Barreto entered a black Acura, backed out, and followed

Diaz's vehicle to a shopping plaza in Miami, where he parked

and left it. (R6-15). After arriving at the shopping plaza,

Diaz exited the Toyota and walked toward the Acura. While

Diaz walked toward the Acura, Morales and Barreto exited and

walked toward two pay phones at the shopping center with

Diaz accompanying them. (R6-15-16). No officer or other

witness overheard any conversations, or observed anyone

making phone calls. (R6-44-45).

Minutes later, Diaz walked alone over toa bakery. (R6-

16,44). While Diaz was at the bakery, Morales and Barreto

conversed. (R6-44-45). Diaz later exited the bakery carrying

a white paper bag and a coffee cup, and joined Morales and

Barreto. (R6-44-45). Diaz then used the pay phone while

Morales sat on the curb, however, no evidence showed who

Diaz called or what was discussed. (R6-15-16,44-45).

After approximately twenty minutes, Morales looked

down at his belt buckle, removed his “pager” and showed it to

Diaz. (R6-17-18,46). However, no pager was ever seized from

Morales and no evidence showed that the one beeper that was

later found in the Fountainbleau apartment belonged to or was

used by Morales, or received a call from anyone that day. (R6-

17-18,185-86). During the 20 minute period before Morales

allegedly received a beeper call, Morales, Diaz, and Barreto

“were just talking amongst each other, laughing, having

conversations,” (R6-17), and none of the men engaged in any

counter-surveillance activities. (R6-15-18).

Morales, Diaz and Barreto then went over to the pay

phones and Morales, not Diaz, placed a phone call. Again, no

evidence showed who Morales called or the content of the

conversation. (R6-17-18).

Thereafter, Morales, Diaz and Barreto walked to and

entered the Acura with Morales driving, Barreto in the front

passenger's seat, and Diaz in the back seat. (R6-18-19).

Morales drove the Acura back to his residence, stopped for a

4.

few minutes, and then drove to a Winn Dixie grocery store.

(R6-64-65,91-92). Upon entering the parking lot, Morales

drove up and down the aisles, and then stopped for several

minutes next to a white Chevrolet Blazer. (R6-66-67). While

stopped by the Blazer, Morales appeared to engage in a

conversation with Rafael Charvarry. (R6-65-67,92-94).

However, no officer or other witness overheard the

conversation. (R6-66-67).

Charvarry then followed Morales to an apartment

complex. (R6-67-68,95). Morales, Diaz and Barreto exited

the Acura and walked toward an archway at the entrance of the

building - empty handed. (R68-71,108). Upon reaching the

archway, one of the three individuals motioned for Chavarry

to come over to the archway. /d. However, no evidence

showed that Diaz motioned for Charvarry. (/d., R6-81-82).

The four individuals walked upstairs and entered

apartment 209. (R6-99-100). Approximately five (5) minutes

after Chavarry entered the apartment, Chavarry exited the

apartment complex carrying a black bag over his shoulder and

a “small pinkish, bluish, flowered, printed small bag that was

wrapped up in his hand.” (R6-71-72, 117; Govt. Ex 7-8).

After Chavarry walked to the Chevy Blazer, an officer

approached, questioned Chavarry, and subsequently found

seven kilo size packages of suspect cocaine in the black bag.”

(R6-45-46,73-78).

Upon learning that kilograms of suspect cocaine were

seized, officers went upstairs to the apartment and observed

Barreto exit, empty handed. (R6-26-29,49). Upon searching

Barreto, the officers found no drugs or money. (R6-37). The

apartment door then slammed and locked, and an officer heard

someone yelling “police.” (R6-28-29, 51,102-03). An officer

at the back of the apartment observed Diaz jumping from a

second floor balcony, and Morales with one leg over the

balcony. (R6-123-36). The officers then chased, caught, and

hand-cuffed Diaz. (R6-32-33). Upon searching Diaz, the

* The bag contained 4,994 grams. (R6-77-78).

officers found no money, drugs, beepers or cell phones. (R6-

37). Further, the officers never swabbed Diaz’ hands, nor were

his clothes checked to determine if he had any cocaine residue

on them, (R6-85-86,116), and none of the evidence was

fingerprinted to determine if Diaz’ prints appeared thereon.

(R6-116).

During a security sweep of the apartment, no guns,

money, or drug ledgers were found. (R6-103-04, 200-01).

The first officer inside the apartment, Morgan, did not testify

where he observed any of the cocaine, (R6-229-30), and by the

time Agent Collins entered to take the evidence in custody, the

items on the kitchen counter were already seized by other

individuals. (R6-184-85,197-98).

Although the majority of the cocaine was seized from

the two bathrooms, the photographs showed that neither the

hallway or master bathroom were visible from the living room.

Govt. Ex. 5-6, 8-9, Def: Sent. Ex. 1-2,5. Further, the lack of

lighting in the master bedroom when the first photographs

were taken showed that neither Diaz nor anyone else entered

the master bedroom or bathroom during the five minutes that

Diaz was in the apartment. Compare, Govt Ex. 8 with 9, and

Def. Sent. Ex. 5 with 7.

Moreover, one of the officers testified that the cocaine

in the bathrooms was not in plain view. Detective Recio

testified that he never saw the cocaine - even though at the

time he entered the apartment, he knew that cocaine had been

located in the bathroom, and peeked into the bathroom without

looking down inside the wall. Specifically, during cross-

examination, Detective Recio testified:

Q. Okay. Well, when you testified on direct

examination, did you say that the cocaine

wasn't visible at the time in the bathroom

when you looked in there?

A. When I looked in it -

Q. Wait a minute. Answer my question.

A. Okay.

Did you say on direct examination, when you

-16-

Or GPO>

peeked in the bathrooms, you couldn't see the

cocaine like it is in the picture? Did you say

that?

Yes, | did say that.

Okay. Now, the cocaine as depicted in the

walls are different than when you saw tt,

correct?

No, sir.

What's different? It's not different?

The pictures below there, sir, where the cocaine

is on there, that's what I was referring to.

Oh, okay.

That those cocaine kilograms like that on the

sink were not like that when I looked through.

Gotcha.

Okay.

So, in other words, this picture was after

someone took cocaine out of the wall, placed

it on there and then took a photograph.

Yes, sir.

Gotcha. And when you peeked in there, you

said you really couldn't see the cocaine.

No, sir.

Am I correct?

Yes, sir.

Now, you already knew there was cocaine

found in there, correct?

Yes.

You were already expecting to see cocaine in

the bathroom, were you not?

Yes.

When you went there to peek in?

Yes. 1 was looking around.

And you still couldn't see it so well in the

wall, could you?

No.

In tact, you had to walk in and look down into

the wall to actually see the cocaine.

ay

eT

Rader ale SW ieee

| couldn't answer that because | didn't do it, sir.

But you didn't do that.

No, sir.

But going to the doorway of the bathroom you

couldn't see the cocaine in the wall.

A. No.

(R6-224-25). (Emphasis added).

Even when the Government attempted to rehabilitate

Detective Recio on redirect examination, Recio maintained

that he could not see the kilograms in the bathrooms:

Q. When you saw the cocaine in the apartment, it

looked like this (indicating)? I'm pointing at --

it was placed the way it is in 5-E?

OPe?

A. No, sir.

Q. Which way was it placed?

A. No. What I said was that when I looked into

the bathroom the cocaine was not on there

like this.

Q. How did it look when you were in the

bathroom?

A. 1 didn't see it like that.

Q. Can you just describe the way it looked?

A. It was -- well, J didn't see it. I didn't see the

cocaine.

(R6-226-27). (Emphasis added).

As a result, the cocaine in the bathrooms clearly was

not in plain view to anyone unless they (1) walked down the

hall, (2) walked into the bathroom, aud (3) looked down into

the wall where a medicine cabinet would be hung.

Similarly, no testimony or evidence showed that Oscar

Diaz saw the contents of the duffle bag that Chavarry placed

in the Chevy Blazer, that the duffle bag was handed to

Chavarry while Oscar Diaz was inside the apartment, or that

the duffle bag came from inside the apartment. Moreover, no

testimony or evidence indicated that Diaz discussed any

numbers or quantities of monies, drugs or other objects,

touched any of the cocaine, packaging, paraphernalia or

ae.

money, had any cocaine residue on him, had any money that

would indicate that he had been just involved or would be

involved in any cocaine trafficking offenses, or that his

fingerprints were present anywhere in the apartment where any

cocaine was stored. (R6-188-89,193-98).

ARGUMENT I

THE LANGUAGE IN THIS COURT’S OPINION IN APPRENDI V.

NEW JERSEY, 530 U.S. 466 (2000) PROVIDING THAT “ANY

FACT [OTHER THAN A_ PRIOR CONVICTION] THAT

INCREASES THE PENALTY FOR A CRIME BEYOND THE

PRESCRIBED STATUTORY MAXIMUM” REFERS TO THE

MAXIMUM SENTENCE PRESCRIBED UNDER THE UNITED

STATES SENTENCING GUIDELINES, BECAUSE AS THIS COURT

EXPLAINED IN UNITED STATES V. R.L.C., 503 U.S. 291 (1992),

THE SENTENCING GUIDELINES ARE STATUTES.

A. The U.S. Sentencing Guidelines Are Statutes and a

Defendant’s Sentence May Not Exceed the Lowest

Maximum Sentence after Application of the

Guidelines and Limitations on Sentences Set Forth

in the Charging Statutes:

The United States Sentencing Guidelines are clearly a

creature of statute that impose upper and lower limits on a

sentencing court. This Court has previously rejected the

Government's attempt to argue that an “authorized” sentence

only refers to the penalty provisions in the charging statute,

rather than the limitations imposed through the Sentencing

Guidelines in United States v. R.L.C., 503 U.S. 291,112 S.Ct.

1329, 117 L.Ed.2d 559 (1992). In R.L.C. this Court held that

the penalty provisions of the charging statute setting forth the

maximum possible penalty are not to be given primacy over

the maximum possible penalty permissible under the

-19-

Sentencing Guidelines. R.L.C., 503 U.S., at 298, 112 S.Ct.,

at 1334.

The district court in R.L.C. found that R.L.C., a

juvenile, committed an act of juvenile delinquency within the

meaning of 18 U.S.C. § 5031, because his acts would have

been the crime of involuntary manslaughter in violation of 18

U.S.C. §§ 1112(a) and 1153 if committed by an adult. The

maximum sentence for involuntary manslaughter under 18

U.S.C. § 1112(b) was three years. At R.L.C.'s dispositional

hearing, the district court granted the Government's request to

impose the maximum penalty for respondent's delinquency and

accordingly committed him to official detention for three

years.

Despite the manslaughter statute's provision for an

adult sentence of that length, the United States Court of

Appeals for the Eighth Circuit, vacated R.L.C.'s sentence and

remanded for resentencing, after concluding that 36 months

exceeded the cap imposed by 18 U.S.C. § 5037(c)(1)(B) upon

the period of detention to which a juvenile delinquent may be

sentenced. 915 F.2d 320 (1990).

The government filed a petition for certiorari review to

the Supreme Court, arguing -- as the Government has in most

post-Apprendi cases -- that the maximum penalty authorized

under the statute refers to the charging statute; not the

maximum under the Sentencing Guidelines. This Court

rejected the Government’s argument as follows:

The Government suggests a straightforward

enquiry into plain meaning to explain what is

"authorized." —s —It| argues that the word

"authorized" must mean the maximum term of

imprisonment provided for by the statute

defining the offense, since only Congress can

"authorize" a term of imprisonment in

-20-

punishment for a crime. As against the

position that the Sentencing Guidelines now

circumscribe a trial court's authority, the

Government insists that our concern must be

with the affirmative authority for imposing a

sentence, which necessarily stems from

statutory law. It maintains that in any event the

Sentencing Commission's congressional

authorization to establish sentencing guidelines

does not create affirmative authority to set

punishments for crime, and that the Guidelines

do not purport to authorize the punishments to

which they relate.

But this is too easy. The answer to any

suggestion that the statutory character of a

specific penalty provision gives it primacy

over administrative sentencing guidelines is

that the mandate to apply the Guidelines is

itself statutory. See 18 U.S.C. § 3553(b).

More significantly, the Government's

argument that "authorization" refers only to

what is affirmatively provided by penal

statutes, without reference to the Sentencing

Guidelines to be applied under statutory

mandate, seems to us to beg the question. Of

course it is true that no penalty would be

"authorized" without a statute providing

specifically for the penal consequences of

defined criminal activity. The question,

however, is whether Congress intended the

courts to treat the upper limit of such a penalty

as "authorized" even when proper application

of a statutorily mandated Guideline in an adult

21

ee re)

1

?

k

t

4

case would bar imposition up to the limit, and

an unwarranted upward departure [503 U.S.

298] from the proper Guideline range would

be reversible error. § 3742. Here it suffices to

say that the Government's construction is by no

means plain. The text is at least equally

consistent with treating "authorized" to refer

ko the result of applying all statutes with a

required bearing on the sentencing decision,

including not only those that empower the

court to sentence but those that limit the

legitimacy of its exercise of that power. This,

indeed, is arguably the more natural

construction.

R.L.C., 503 U.S. 291,298, 112 S.Ct. 1329, 1334. Mistretta v.

United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714

(1989).°

* While Apprendi itself concerned only the New Jersey hate crime

statute, there are numerous suggestions in the majority, concurring, and

dissenting opinions that the case's scope may be quite broad indeed.

Justice Thomas's concurrence argued that any fact that alters the range of

punishments to which a defendant is exposed must be found by a jury, see

id. at 2379-80, acknowledging that his proposed rule might invalidate the

Sentencing Guidelines themselves. See id. at 2380 n. 11: Justice Scalia’s

concurrence maintained that “all the facts which must exist in order to

subject the defendantto a legally prescribed punishment must be found by

the jury.” /d. at 2367. Justice O'Connor's dissent expressed concern that

the Court's holding "will have the effect of invalidating significant

sentencing reform accomplished over the past three decades." /d. at 2394.

And Justice Breyer, a key figure in the development of the Sentencing

Guidelines, lamented that "the rationale that underlies the Court's rule

suggests a principle ... that, unless restricted, threatens the workability of

every criminal justice system (if applied to judges) or threatens efforts to

make those systems more uniform, hence more fair (if applied to

[sentencing] commissions)." /d. at 2402.

As a result, this Court’s holding in Apprendi, that

"{o]ther 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.” applies to the statutory maximums

set forth in the United States Sentencing Guidelines if such are

lower than the maximums set forth in the charging statute. 120

S.Ct. at 2362-63 (emphasis added).

Accordingly, the maximum possible sentence for the

Petitioner under the Sentencing Guidelines would consist of a

base offense level of 12 with a sentencing range of 15 to 21

months, as provided for a 25 gram level set forth in Section

2D1.1 of the United States Sentencing Guidelines.

B. Alternatively, where the Determination of an

Essential Element of an Offense (Other than

Recidivism) Removes the Discretion of the

Sentencing Court by Requiring the Defendant to

Receive a Mandatory Minimum Sentence, That

Element must Be Determined by a Jury Beyond a

Reasonable Doubt.

The majority responded to these allegations simply by noting that

"{t]he Guidelines are, of course, not before the Court. We therefore

express no view on the subject beyond what this Court has already held.

See, e.g., Edwards v. United States...." Id. {523 U.S. 511, 118 S.Ct. 1475]

at 2366 n. 21. Edwards, the only case cited by the majority, was quoted

for the proposition that "a maximum sentence set by statute trumps a higher

sentence set forth in the Guidelines." 523 U.S. 511,515, 118 S.Ct. 1475,

140 L.Ed.2d 703 (1998). The Court did not cite Mistretta v. United States,

488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the case that

originally upheld the constitutionality of the Sentencing Guidelines, nor did

it address the holding in R.L.C., that the Sentencing Guidelines are a

statute and that the statutory character of a specific penalty provision such

as 21 U.S.C. § 841, does not give it primacy over administrative sentencing

guidelines.

23.

In the instant case, once the District Court determined

by a preponderance of the evidence that over 5 kilograms of

cocaine were attributable to Oscar Diaz, and that Mr. Diaz had

one prior drug felony conviction, under 21 U.S.C. §

841(b)(1)(A), a 20 year sentence was mandatory, even though

it was merely the maximum sentence applicable under 21

U.S.C. § 841(b)(1)(C) - where the minimum sentence is zero.

Based upon a similar case, the Sixth Circuit recently vacated

a defendant’s sentence in United States v. Strayhorn, - F.3d -,

2001 WL 536548 (6" Cir., May 22, 2001), because “[t]he

judge’s determination effectively limited the range of

applicable penalties and deprived [the defendant] of the

opportunity to receive a less than life imprisonment without

the possibility of release.” /d., quoting United States v.

Flowal, 234 F.3d 932, 937 (6" Cir. 2000). Almendarez-

Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140

L.Ed.2d 350 (1998) does not proscribe the reasoning of

' Strayhorn, because Almendarez-Torres only concerned

recidivism as a sentencing factor of Title 8 U.S.C. § 1326, and

did not require the sentencing court to find any other fact, such

as the quantity of drugs attributable to the defendant.

ARGUMENT II

BEFORE INCREASING A DEFENDANT’S STATUTORY

MAXIMUM SENTENCE FROM FORTY YEARS TO LIFE

IMPRISONMENT ON THE BASIS OF THE QUANTITY OF

ILLEGAL DRUGS A DEFENDANT A CONSPIRED TO IMPORT IN

A DRY CONSPIRACY, THE PROSECUTION MUST PROVE THE

QUANTITY OF ILLEGAL DRUGS BEYOND A REASONABLE

DOUBT TO A JURY.

A. Under The Due Process Clause Of The Fifth

Amendment And The Notice And Jury Trial

Guarantees Of The Sixth Amendment Any Fact

(Other Than Recidivism), That Increases The

Maximum Penalty For A Crime, Including The

Quantity of Illegal Drugs That A Defendant Agreed

to Import, Must Be Charged In An Indictment,

Submitted To A Jury And Proven Beyond A

Reasonable Doubt.

The Eleventh Circuit's affirmance of Diaz ‘s conviction

and sentence, and denial of his Petition for Rehearing and

Rehearing En Banc, directly conflict with the decisions of this

Court in Apprendi and Jones v. United States, 526 U.S. 277,

119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Apprendi, this

Court squarely held 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.” /d.. 120

S.Ct. at 2362-63.

After the Eleventh Circuit affirmed Diaz's conviction

and sentence and denied his petition for rehearing and

suggestion for rehearing en banc, this Court reversed and

remanded numerous drug cases for reconsideration in light of

Apprendi.’ See note 8 below. Like the cases this Court has

*The following drug cases were reversed and remanded for

turther consideration in light of Apprendi: United States v. Humphrey,

210 F.3d 373 (6th Cir.2000) unpublished (trial court properly calculated

of amount of cocaine), rev ‘d, 121 S.Ct. 478, - L-Ed.2d - (Nov.13, 2000);

United States v. Whitt, 2\\ F.3d 1022 (7" Cir.2000)(sustained trial

court's findings regarding quantities of drugs based upon witness

testimony at trial), rev ‘d, - U.S. -, 121 S.Ct. 423, - L-Ed.2d - (Nov. 6,

2000); United States v. Hughes, 2\3 F.3d 323 (7" Cir. 2000)(same),

rev'd, - U.S. -, 121 S.Ct. 423, - L-Ed.2d - (Nov. 6, 2000); United States

-25-

-.

reversed and remanded for further consideration, the

indictment in this case failed to charge the threshold amount of

cocaine necessary to support the enhanced penalty provisions

of the charging statute, and the jury instructions and verdict

form failed to direct the jury to make a factual finding beyond

a reasonable doubt as to the quantity of drugs that Diaz

possessed or conspired to. (R1I-1,4,17; Ct. Ex. 1-3).

Accordingly, at the minimum, this Court should reverse and

remand this case for further consideration in light of Apprendi

and Jones.

However, this case also presents this Court with the

following issues of national importance:

(a) As set forth in Argument I, whether the

language in Apprendi supra, referring to the “prescribed

statutory maximum,” refers to the maximum sentence

prescribed under the United States Sentencing Guidelines,

because as this Court explained in United States v. R.L.C., 503

U.S. 291 (1992), the Sentencing Guidelines are statutes?

(b) Whether Apprendi and/or Jones require the

complete reversal of a conviction due to lack of jurisdiction?

and,

(c) Assuming that this Court’s holdings in

Apprendi, and/or Jones, only require a the trial court to

v. Smith, 215 F.3d 1331 (7 Cir. 2000)(type and quantity of drugs

sentencing factors), rev'd, - U.S. -, 121 S.Ct. 336, - L.Ed.2d - (Oct. 16,

2000): United States v. Hester, 199 F.3d 1287 (11 Cir.2000)(amount

of marijuana involved not an element of offense that gov't had to prove

beyond a reasonable doubt), rev ‘d, - U.S.-, 121 S.Ct 336, - L.Ed.2d -

(Oct. 16, 2000); United States v. Jones, 194 F.3d 1178 (10" Cir.

1999)(a sentencing judge can consider quantities of drugs not charged in

information or indictment or proven at trial when determining sentence,

and quantities proven at trial do not dictate mandatory minimum), rev ‘d,

- US. -, 120 S.Ct. 2739, 147 L-Ed.2d 1002 (2000).

-26-

resentence a defendant whose conviction was obtain in

violation thereof, whether the trial court must resentence the

defendant to an offense level under the United States

Sentencing Guidelines that is the lowest possible level for the

drug specified in the indictment and charging statute?

(1) The Quantity of Drugs That A Defendant Intended

to Import Is An Essential Element of 21 U.S.C. §§

841 and 846.

To comport with the Fifth and Sixth Amendments, a

criminal indictment must (1) contain all of the elements of the

offense so as to fairly inform the defendant of the charges

against him, and (2) enable the defendant to plead double

jeopardy in defense of future prosecutions for the same

offense. In Jones v. United States, 526 U.S. 227, 119 S.Ct.

1215, 143 L.Ed.2d 311 (1999), this Court noted that:

under the Due Process Clause of the Fifth

Amendment and the notice and jury trial

guarantees of the Sixth Amendment, any fact

(other than prior conviction) that increases the

maximum penalty for a crime must be charged

in an indictment, submitted to a jury, and

proven beyond a reasonable doubt.

Id., at 243, n. 6, 119 S.Ct. 1215.

The federal carjacking statute examined in Jones, set

forth a choice of three maximum penalties, two of which were

dependent on proof of facts that did not need to be present in

the indictment or decided by the jury. 526 U.S. at 229, 119

S.Ct. 1215. The basic statute provided a fine or imprisonment

of not more than 15 years for the offense of carjacking, 18

U.S.C. § 2119(1), but if serious bodily injury resulted, the

maximum time in prison was 25 years, § 2119(2), and if death

resulted, the maximum was life imprisonment, § 2119(3).

Similarly, in the instant case, Title 21 U.S.C. § 841.

requires a factual finding to determine if the violation of the

applicable statute set forth in subsection (a) involved 5

kilograms or more of cocaine under subsection (b)(1)(A), or

over 500 grams but less than 5 kilograms of cocaine under

subsection (b)(1)(B).

Furthermore, like the indictment in Jones's case, which

made no reference to the subsections of the statute, nor did it

charge either that the defendant had inflicted serious bodily

injury on the victim or death, the indictment herein wholly

fails to identify the penalty provisions imposed after trial.

Diaz's Indictment not only failed to identify which portion of

section 841(b) the government sought to impose, it failed to

cite to section 841(b) altogether, and further failed to state any

specific quantity of cocaine that Diaz possessed or conspired

to possess. (R1-22).

The lower courts in Jones held that the additional facts

that triggered 9 2119(2) and (3) were nonetheless sentencing

factors, but the Supreme Court reversed, holding that the Fifth

Amendment Due Process Clause of the Fifth Amendment and

Sixth Amendment notice and jury trial require any fact other

than a prior conviction that increases the maximum penalty for

a crime must be charged in an indictment, submitted to a jury,

and proven beyond a reasonuble doubt." /d., at 243, n. 6, 119

S.Ct. 1215. /d. at 249, 119 S.Ct. 1215.

(2) The failure of an Indictment to Charge an Essential

Element of and Offense, Requires Reversal of a

Conviction.

The requirement that an indictment contain all the

elements of the offense provides a defendant with notice and

protection from double jeopardy. See Const. Amd V (“nor

shall any person be subject for the same offense to be twice put

in jeopardy of life or limb”); Const. Amd. VI (“the accused

shall enjoy the right ... to be informed of the nature and cause

-28-

of the accusation”). An indictment also “limit[s] [the

defendant's] jeopardy to the offenses charged by a group of his

fellow citizens acting independently of either prosecuting

attorney or judge.” Stirone v. United States, 361 U.S. 212,

218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Furthermore, the

Due Process Clause "protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged." Jn

re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368

(1970). ‘

The Second Circuit examined this issue in the context

of the federal firearm statute where the defendants plead guilty

to the simple firearms offense, but were enhanced one

conviction for discharge of a firearm and imposed a 10 year

consecutive sentence for violation of § 924(c) in connection

with a different bank robbery. Instead of merely reversing for

resentencing, the court remanded for resentencing or

reindictment. United States v. Tran, 234 F.3d 798 (2d Cir.,

2000). The indictments in Tran charged the defendants with

a simple § 924(c) firearms offense, to which the defendants

plead guilty. /d. at 803. Recognizing that the notion that an

indictment is a prerequisite to jurisdiction over a criminal case

in the federal courts is long established, the Second Circuit

held that the district court acted outside its jurisdiction in

sentencing the defendants for the enhanced firearms offenses

not charged in their indictments. Tran, at 805-807, citing, Ex

parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849

(1887)(indictment found by a grand jury indispensable to the

power of the court to try defendant for crime charged).

Similarly, the indictment the grand jury returned

against Diaz in the instant case, failed to set forth any notice

that the enhanced penalty provisions of § 841(b) by either

citing to the statute or specifying the quantity of cocaine that

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the grand jury found that Diaz possessed or conspired to

possess. Accordingly, the district court was without

jurisdiction to try or sentence Diaz, because the grand jury did

not charge Diaz with an essential element of the offense

charged.

However, some Circuit courts have required defendants

to either satisfy a plain error standard, or a harmless error

standard after passing a stringent test to prove that a

constitutional objection was raised. See, United States v.

Candelario, 240 F.3d 1300 (11" Cir.2001), pet. cert. filed,

(May 4, 2001 )(No.00-9956). Such conflicts with the Fifth and

Sixth Amendments to the U.S. Constitution. See Argument

I(A)(1), supra.

B. Alternatively, Where a Defendant’s Drug

Conviction Violates Apprendi or Jones, The

Defendant Should Be Resentenced To The Lowest

Level Under The United States Sentencing

Guidelines For The Drug Specified in the

Indictment and Charging Statute.

As set forth in the points above, in instances such as the

instant case where the Indictment fails to allege the penalty

provision which would provide the trial court with jurisdiction

to impose a minimum mandatory sentence or the quantity of

drugs specified in said statute, then the trial court is without

jurisdiction to sentence (as well as convict), the defendant.

In the event this Court does not rule that the indictment

must be dismissed, the Petitioner submits that inasmuch as the

petit jury found him guilty of a cocaine conspiracy for an

unstated quantity of cocaine, that the trial court would only

have authority to sentence him to the lowest quantity of

cocaine specified in the United States Sentencing Guidelines.

Accordingly, Diaz submits that the highest base

offense level applicable, would be a level 12.

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CONCLUSION

For all the foregoing reasons, therefore, Oscar Diaz

respectfully submits that this Court should grant this Petition

for Certiorari.

Respectfully submitted,

RHONDA A. ANDERSON, ESQ.

RHONDA A. ANDERSON, P.A.

Counsel for Oscar Diaz

2222 Ponce De Leon Boulevard

Suite 500

Coral Gables, Florida 33134

Florida Bar No. 708038

Telephone: (305) 444-1400

Facsimile: (305) 444-1487

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and exact copy of the

foregoing was mailed via U.S. Mail, this 29" day of May,

2001, to: Solicitor General, Department of Justice, 10" and

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

Madeline Shirley, Esq., Assistant U. S. Attorney, 99 N.E.

Fourth Street, Miami, Florida 33132.

RHONDA A. ANDERSON, ESQ.

RHONDA A. ANDERSON, P.A.

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