2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-23-2005

USA v. Ordaz

Precedential or Non-Precedential: Precedential

Docket No. 04-1671

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Recommended Citation

"USA v. Ordaz" (2005). 2005 Decisions. Paper 1498.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-1671

 

UNITED STATES OF AMERICA

 v.

COSME ORDAZ,

 Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 98-cr-00587-16)

District Judge: Honorable Anita B. Brody 

Submitted Under Third Circuit LAR 34.1(a)

October 4, 2004

Before: SLOVITER, BECKER, and STAPLETON, Circuit

Judges

(Filed February 23, 2005 )

 

Steven A. Morley

Morley, Surin & Griffin

Philadelphia, PA l9l06

Attorney for Appellant

Kathy A. Stark

Office of United States Attorney

Philadelphia, PA l9l06

Attorney for Appellee
1

 The District Court had jurisdiction pursuant to 18 U.S.C.

§ 3231; this Court has jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742. 

2

 The United States dismissed one of the 21 U.S.C. § 843(b)

counts prior to trial.

2

 

 

OPINION OF THE COURT

 

SLOVITER, Circuit Judge.

Appellant Cosme Ordaz appeals following his conviction

by a jury and sentence imposed by the District Court.1 Ordaz’s

arguments before this court all pertain to the sentence he

received. This requires that we consider the effect of the recent

opinions of the United States Supreme Court in United States v.

Booker, __ U.S. __, 125 S. Ct. 736 (2005).

I.

Ordaz was one of eighteen defendants charged by a

federal grand jury in a superseding indictment with various

narcotics and conspiracy offenses. Specifically, the superseding

indictment charged Ordaz with one count of conspiring to

distribute cocaine in violation of 21 U.S.C. § 846, and two

counts of the use of a telephone in furtherance of this conspiracy

in violation of 21 U.S.C. § 843(b).2

According to the United States, the individuals charged in

the superseding indictment were involved in a narcotics

distribution ring, which operated from 1992 until October 1998

under the sobriquet “Ordaz Cocaine Organization” (“OCO”). 

The superseding indictment alleged that the OCO would obtain

cocaine from a source in Miami, Florida and transport the

narcotics to Pennsylvania. The OCO operated primarily out of a

bar near Seventh and Tioga Streets in North Philadelphia. After

the bar was closed, the OCO sold off the street.
3

 Lazara Ordaz was sentenced to 420 months incarceration.

This court subsequently affirmed her conviction, rejecting her

claim of ineffective assistance of counsel. United States v. Ordaz,

111 Fed. Appx. 128, 134 (3d Cir. 2004).

4

 The jury also convicted both William Colon and Berto

Ordaz on various counts. This court subsequently affirmed in part

3

 Among the other defendants charged in the superseding

indictment were Lazara Ordaz, Ordaz’s sister, and Berto Ordaz,

Ordaz’s brother. According to the United States, Lazara Ordaz

was the OCO’s namesake and overall leader. Lazara Ordaz

eventually entered a plea of guilty to one count of conspiracy to

distribute cocaine, 21 U.S.C. § 846, twenty counts of the use of

various communications facilities in furtherance of this

conspiracy, 21 U.S.C. § 843(b), and one count of possessing a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1).3

In contrast to his sister’s guilty plea, Ordaz, along with

co-defendants William Colon and Berto Ordaz, proceeded to

jury trial. The evidence established that Ordaz was incarcerated

beginning in 1991– prior to the conspiracy’s inception – and was

not released until April 1998. The United States conceded that

Ordaz was not part of the conspiracy until approximately the

final six months of the scheme. 

Nonetheless, the government presented evidence that

Ordaz, immediately prior to going to prison in 1991, had

provided his sister with money and narcotics that she had used to

start the OCO. More crucially, the government also presented

evidence that, upon his release from prison, Ordaz assisted the

OCO by selling and transporting drugs. In addition, the

government presented wiretap evidence of several phone calls

between Ordaz and other purported OCO members and

affiliates.

After a two-week trial, the jury convicted Ordaz of both

the conspiracy offense, 21 U.S.C. § 846, and the use of a

communication facility in furtherance of the conspiracy offense,

21 U.S.C. § 843(b).4 Notably, the jury was not asked to render
and reversed in part Berto Ordaz’s convictions, United States v.

Ordaz, No. 03-3671, 2005 WL 82212 (3d Cir. Jan. 14, 2005), and

affirmed Colon’s convictions, United States v. Colon, 45 Fed.

Appx. 88, 92 (3d Cir. 2002).

5

 For purposes of sentencing, the District Court “grouped”

Ordaz’s 21 U.S.C. § 846 and 21 U.S.C. § 843(b) convictions. See

generally U.S.S.G. § 3D1.2 (1998).

4

any decision with respect to drug weight; likewise, the jury was

not asked to make any determination with respect to Ordaz’s

prior criminal history.

 In a Supplemental Memorandum of Law Regarding

Sentencing Issues, Ordaz noted that the amount of narcotics

attributable to him had not been found by the jury. Relying on

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

it was impermissible for the District Court, as opposed to a jury,

to make a finding as to drug weight for sentencing purposes. 

Indeed, Ordaz argued that the District Court could not enhance

his sentence on the basis of any factor that would increase his

Guidelines range if such a factor was not supported by facts

found by a jury. Ordaz urged the District Court to apply a baseoffense level of twelve, the lowest base-offense level available

under the 1998 Edition of the United States Sentencing

Guidelines (which controlled Ordaz’s sentencing) for a

defendant convicted of a cocaine distribution offense. See

U.S.S.G. § 2D1.1(c)(14) (1998). Ordaz further submitted that

before his sentence could be increased on the basis of an alleged

previous narcotics conviction, see 21 U.S.C. § 841(b)(1)(C);

U.S.S.G. § 4B1.1 (1998), the jury needed to find, beyond a

reasonable doubt, the fact of this prior conviction.

At the sentencing hearing held on March 10, 2004, the

District Court rejected Ordaz’s arguments.5 Instead, the District

Court, agreeing with the government, applied a base-offense

level of thirty-two, which is the level applicable under the

Guidelines when five to fifteen kilograms of cocaine are

involved. See U.S.S.G. § 2D1.1(c)(4) (1998). In addition to

determining drug weight, the District Court found that Ordaz
6

 In addition to his Blakely arguments, Ordaz argues that

the District Court made factual errors in applying the Guidelines,

an issue we leave to the District Court on remand.

7

 Because in addressing Blakely, the parties have

adequately briefed the issues controlling this appeal, we will deny

the government’s request to submit additional briefs regarding the

effect of Booker.

5

was a leader/organizer of the OCO and added four points to his

offense level, see U.S.S.G. § 3B1.1(a) (1998); that Ordaz had

used firearms in committing the conspiracy and added two more

points, see U.S.S.G. § 2D1.1(b)(1) (1998); and that Ordaz had

obstructed justice and thus added another two points, see

U.S.S.G. § 3C1.1 (1998). In total, the District Court calculated

that Ordaz had an offense level of forty.

The District Court also found that Ordaz had previously

been convicted of several felonies rendering him a career

offender. Under U.S.S.G. § 4B1.1 (1998), this finding resulted

in Ordaz having a criminal history category of VI. Combined

with his offense level of forty, Ordaz had a Guidelines range of

360 months to life in prison. Ultimately, the District Court

sentenced Ordaz to a term of 360 months imprisonment.

Ordaz thereafter filed a timely notice of appeal raising

several issues. First, relying on Apprendi and the subsequent

decision in Blakely v. Washington, 542 U.S.__ , 124 S. Ct. 2531

(2004) (extending Apprendi and finding unconstitutional certain

applications of State of Washington’s determinate-sentencing

scheme), Ordaz argues that the District Court, by finding drug

weight and applying the other enhancements (i.e.,

leader/organizer, use of a firearm, and obstruction of justice),

violated his Fifth and Sixth Amendment right to have all facts

which increase the maximum punishment found by a jury

beyond a reasonable doubt.6 Ordaz further argues that the fact of

his purported prior convictions needed to be found by a jury

before the District Court could use them to enhance his

sentence.

7
8

 Justice Ginsburg was the only Justice who joined both

opinions.

9

 Justice Breyer, along with Justices Kennedy and

O’Connor and Chief Justice Rehnquist, dissented from Justice

Steven’s opinion extending the Blakely rule to the Guidelines.

6

II.

In United States v. Booker, __ U.S. __, 125 S. Ct. 738

(2005), the Supreme Court held, inter alia, that “the Sixth

Amendment as construed in Blakely does apply to the [Federal]

Sentencing Guidelines.” Booker, __ U.S. at __, 125 S. Ct. at

747 (Stevens, J.). Booker was decided by two opinions of the

Court approved by different majorities.8 In the first opinion,

authored by Justice Stevens for a majority of five, which we will

hereafter refer to as “Booker (Stevens),” the Court reaffirmed

the holding in Apprendi that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt” and extended that

rule to the Sentencing Guidelines. Booker (Stevens), U.S. at 

 , 125 S. Ct. at 756. 

The second opinion, authored by Justice Breyer (hereafter

referred to as “Booker (Breyer)”) for a majority of five, focused

on the remedy the Court announced. The Court held that 18

U.S.C. § 3553(b)(1), the provision of the Sentencing Reform Act

of 1984 (“SRA”) that makes the Guidelines mandatory, was

incompatible with the Court’s constitutional ruling and that it

must be severed and excised. Similarly, 18 U.S.C. § 3742(e),

“the provision that sets forth standards of review on appeal,

including de novo review of departures from the applicable

Guidelines range,” must also be severed and excised because it

contains critical cross-references to the section making the

Guidelines mandatory. Booker (Breyer), __ U.S. at __, 125 S.

Ct. at 764. The net result was to delete the mandatory nature of

the Guidelines and transform them to advisory guidelines for the

information and use of the district courts in whom discretion has

now been reinstated.9
Similarly, Justices Scalia, Souter, Stevens, and Thomas dissented

from Justice Breyer’s severability analysis. 

7

In applying the decisions in Booker to the defendant

before us, it is necessary to distinguish between the two

sentencing issues raised by Ordaz. With respect to Ordaz’s

challenge to the District Court’s determination regarding drug

weight and the enhancements (other than for prior convictions),

the issue is best determined by the District Court in the first

instance and we therefore vacate the sentence and remand for

resentencing in accordance with Booker.

We turn to Ordaz’s challenge to the enhancement for

prior convictions. In this connection, it is helpful to set forth the

maximum punishments available under the statutes of

conviction.

The penalty provision of 21 U.S.C. § 843 (the statute

covering use of a telephone to further drug crime) provides, in

relevant part, that:

[A]ny person who violates this

section shall be sentenced to a term

of imprisonment of not more than 4

years, a fine under Title 18, or both;

except that if any person commits

such a violation after one or more

prior convictions . . . for violation of

this section, or for a felony under any

other provision of this subchapter or

subchapter II of this chapter or other

law of the United States relating to

narcotic drugs . . . have become

final, such person shall be sentenced

to a term of imprisonment of not

more than 8 years, a fine under Title

18, or both.

21 U.S.C. § 843(d)(1) (emphasis added). Therefore, due to the
10 In sentencing Ordaz, the District Court imposed its

ultimate sentence of 360 months of incarceration on both the 21

U.S.C. § 843(b) and 21 U.S.C. § 846 convictions. See App. at 733.

Even under the pre-Booker framework, this sentence was error as

to the § 843(b) conviction because the maximum penalty under that

statute is eight years. See United States v. Lee, 359 F.3d 194, 209-

10 (3d Cir. 2004) (“[T]he Guidelines instruct[] a court to apply the

same sentence to each count in the same group, unless the

statutorily authorized maximum for that count is less than the

minimum of the guideline range. . . .”). However, because the

District Court imposed concurrent sentences for the § 843(b) and

§ 846 convictions, it is unlikely that Ordaz was prejudiced by this

error. Nonetheless, on remand, the District Court is instructed to

structure the sentence it imposes in a manner consistent with the

statutory maximums. 

8

finding by the District Court that Ordaz had a prior federal

narcotics conviction, Ordaz was subject to a maximum statutory

penalty of eight-years imprisonment for his 21 U.S.C. § 843(b)

conviction.10

The conspiracy statute of conviction, the other offense for

which Ordaz was sentenced, provides that “[a]ny 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.” 21 U.S.C. § 846. The

object of the conspiracy for which Ordaz was convicted was the

distribution of cocaine; the penalties for this substantive offense

are set forth at 21 U.S.C. § 841(b) and depend upon the type and

amount of drugs, as well as whether a defendant had prior

narcotics convictions.

The jury convicted Ordaz of conspiring to distribute an

unspecified amount of cocaine, a schedule II controlled

substance. See 21 U.S.C. § 812(c)(Schedule II)(a)(4). Under §

841(b), the maximum statutory sentence for Ordaz’s § 846

conviction would appear to have been twenty years or 240

months incarceration. See 21 U.S.C. § 841(b)(1)(C) (“In the
9

case of a controlled substance in schedule . . . II . . . such person

shall be sentenced to a term of imprisonment of not more than 20

years. . . .”); see also United States v. Vazquez, 271 F.3d 93, 98

(3d Cir. 2001) (en banc) (“In Vazquez’s case, drug quantity was

neither submitted to the jury nor reflected in its verdict. 

Therefore, § 841(b)(1)(C) defines Vazquez’s prescribed

statutory maximum sentence as 20 years.”). Section

841(b)(1)(C), however, further provides that “[i]f 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 . . . .” As

found by the District Court, Ordaz committed the instant offense

after a prior conviction for a felony drug offense had become

final; thus, Ordaz’s maximum statutory penalty for the

conspiracy conviction was thirty years, or 360 months.

Ordaz argues that the fact of prior convictions should

have been submitted to the jury. We reject that challenge. 

Ordaz’s argument that the fact of a prior conviction must be

found by a jury was rejected by the Supreme Court in

Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998)

(stating that “to hold that the Constitution requires that

recidivism be deemed an ‘element’ of petitioner’s offense would

mark an abrupt departure from a longstanding tradition of

treating recidivism as ‘go[ing] to the punishment only’”)

(quoting Graham v. West Virginia, 224 U.S. 616, 629 (1912)). 

Furthermore, in Apprendi the Court specifically exempted prior

convictions from its holding, stating 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.” 530 U.S. at 490

(emphasis added). 

Ordaz argues that because of the decision in Blakely, “it

is clear that Almendarez-Torres cannot stand.” Br. of Appellant

at 38. However, the Supreme Court has made clear that “[i]f a

precedent of this Court has direct application in a case, yet

appears to rest on reasons rejected in some other line of

decisions, the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of
10

overruling its own decisions.” Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 484 (1989); see

also Agostini v. Felton, 521 U.S. 203, 237 (1997). 

 We do not gainsay that there is a tension between the

spirit of Blakely and Booker that all facts that increase the

sentence should be found by a jury and the Court’s decision in

Almendarez-Torres, which upholds sentences based on facts

found by judges rather than juries. Cf. United States v. Mack,

229 F.3d 226, 238 n.5 (3d Cir. 2000) (Becker, J., concurring).

Nonetheless, as an inferior federal court we have the

responsibility to follow directly applicable Supreme Court

decisions. See United States v. Marseille, 377 F.3d 1249, 1257

(11th Cir. 2004) (“Marseille asks this court to extend Apprendi’s

rationale and overrule Almendarez-Torres. . . . [H]is wish is

beyond our powers to grant.”); United States v. Losoya-Mancias,

332 F. Supp. 2d 1261, 1265 (D. N.D. 2004) (“This Court

acknowledges that the soundness of the prior conviction

exception under Almendarez-Torres has again been questioned

in light of Blakely. Nevertheless, the Almendarez-Torres

exception remains the law of the land until the United States

Supreme Court chooses to revisit the matter.”).

The holding in Almendarez-Torres remains binding law,

and nothing in Blakely or Booker holds otherwise. Thus,

because we are bound by Almendarez-Torres, we hold that the

District Court’s determination regarding the facts of Ordaz’s

prior convictions did not violate the Sixth Amendment,

notwithstanding that the sentences were based, in part, on facts

found by a judge rather than a jury.

III.

For the reasons stated above, we will affirm Ordaz’s

conviction, vacate his sentence, and remand for resentencing in

conformance with the opinion of this court.

__________________