# Petition for Writ of Certiorari — Diaz v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 957

## Text

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.

-30-

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.

«Sie

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1877%3A1. Public record. Not legal advice.