2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-22-2003

USA v. Polanco

Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2585

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Recommended Citation

"USA v. Polanco" (2003). 2003 Decisions. Paper 265.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No: 02-2585

UNITED STATES OF AMERICA

 v.

AGUILE POLANCO,

a/k/a CHAMACO,

a/k/a WILLIAM,

 Aguile Polanco,

 Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Criminal No. 01-cr-00031-2

District Judge: Hon. Eduardo C. Robreno

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 15, 2003

Before: McKee, Smith & Cowen, Circuit Judges

(Filed September 22, 2003 )

OPINION OF THE COURT

McKee, Circuit Judge

Aquile Polanco appeals the sentence the district court imposed following his plea

of guilty to numerous charges arising from his involvement in a conspiracy to distribute

cocaine, heroin and crack cocaine. For the reasons that follow, we will affirm.

Inasmuch as we are writing only for the parties who are familiar with the factual

and procedural background of this case, we need not reiterate the facts except as may be
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helpful to our brief discussion. Polanco argues that the district court erred in sentencing

him more severely than his equally culpable female partner and the district court’s

sentencing therefore constituted sex discrimination in violation of the equal protection

component of the Fifth Amendment. We disagree.

The district court disagreed with Polanco’s attempt to characterize himself and

codefendant Burgos as equal partners with equal culpability and indistinguishable

sentencing factors.

Although the district court conceded that Burgos and Polanco were partners, the

court noted that it was Polanco who had access to the source of supply and who

controlled the other persons involved in the conspiracy, including codefendant Burgos. 

The court stated, “this man is at the top. . . everybody else worked for him.” App. 136. 

The court noted that the codefendant “was an administrative leader here, but not sort of a

chief executive officer. That’s Mr. Polanco.” Id. at 151. Because of Polanco’s position

at the top of the conspiracy and his access to the illegal drugs that the conspiracy was

selling, the court concluded that the conspiracy could not have existed without him. It

may, however, have been able to exist without Burgos. Polanco “was a key to this

conspiracy. [Burgos] was pretty helpful, but may be fungible.” Defense counsel did not

disagree with that assessment. On the contrary, counsel indicated his agreement with the

court’s factual conclusion during the sentencing procedures. Moreover, even now

counsel does not seriously argue that the court erred in its conclusion.
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Inasmuch as the court’s conclusions adequately supported the difference in the

sentences of Polanco and codefendant Burgos, and since that factual distinction was not

clearly erroneous, it is clear that Polanco’s belated attempt to hang an appeal on the

constitutional hook of the Fifth Amendment is without merit. Accordingly, we will

affirm.

TO THE COURT:

Please file the foregoing opinion.

By the Court,

 

Circuit Judge
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