14

‐ 4120

United States v. Guerrero

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

______________

August Term, 2015

(Argued: November 17, 2015 Decided: February 11, 2016)

Docket No. 14

‐ 4120

____________

UNITED STATES OF AMERICA,

Appellee,

–v.–

ANTONIO GUERRERO, aka Tony,

Defendant

‐ Appellant. 

______________

Before:

K EARSE

, S TRAUB

, and W ESLEY

, Circuit Judges

.

______________

Appeal from the United States District Court for the Southern District of New

York (Sweet, J.). Defendant

‐ Appellant Antonio Guerrero was convicted after a

jury trial of two counts of intentional murder while engaged in a drug trafficking

 The Clerk of Court is respectfully requested to amend the caption as set forth above.

### 2 offense, in violation of 21 U.S.C. § 848(e)(1)(A). On appeal, Guerrero seeks

vacatur of his conviction on the grounds that: (1) the Fair Sentencing Act of

2010’s enactment before his sentencing retroactively modified the drug quantity

aspect of the murder offense’s drug trafficking element, 21 U.S.C. § 841(b)(1)(A);

(2) the Government failed to separately charge him with, and convict him of, the

predicate drug trafficking offense; (3) the statute of limitations for the predicate

drug trafficking offense governed and barred his murder prosecution; and (4) the

Government’s search of his home violated his Fourth Amendment constitutional

rights. We reject these challenges and AFFIRM the judgment of conviction, but

the matter is REMANDED for the sole purpose of making a clerical correction to

the judgment’s description of Count 1 by replacing “844(e)(1)(A)” with

“848(e)(1)(A)”.

J EFFREY M. B RANDT

, Robinson & Brandt, P.S.C.,

Covington, KY, for Defendant

‐ Appellant

.

L AURIE A. K ORENBAUM

, Assistant United States

Attorney (Michael D. Maimin, Justin Anderson,

Assistant United States Attorneys, on the brief ), for Preet

Bharara, United States Attorney for the Southern

District of New York, New York, NY, for Appellee

.

______________

W ESLEY

, Circuit Judge :

Defendant

‐ Appellant Antonio Guerrero was convicted, after a jury trial in

the United States District Court for the Southern District of New York (Sweet, J.),

of two counts of intentional murder while engaged in a drug trafficking offense,

in violation of § 848(e)(1)(A). Guerrero challenges his conviction on several

grounds related to that statute’s drug trafficking element. He also raises Fourth

### 3 Amendment issues. We reject his challenges and AFFIRM the judgment of

conviction.

A murder conviction under 21 U.S.C. § 848(e)(1)(A) requires proof that the

defendant was “engaging” in a drug trafficking offense punishable under 21

U.S.C. § 841(b)(1)(A) at the time he committed the intentional murder. On

appeal, Guerrero presents three challenges related to § 848(e)(1)(A)’s drug

trafficking element: (1) that the Fair Sentencing Act of 2010 (“FSA” or “Act”)

retroactively invalidates a pre

‐ Act verdict under § 848(e)(1)(A) predicated upon a

pre

‐ Act drug trafficking quantity under § 841(b)(1)(A), where the defendant is

sentenced post

‐ Act; (2) that he could not properly be indicted for violating

§ 848(e)(1)(A) unless he had previously been convicted of the predicate drug

trafficking offense; and (3) that the predicate drug trafficking offense’s statute of

limitations governs a § 848(e)(1)(A) murder prosecution.

As noted, Guerrero also claims Fourth Amendment violations arising from

his arrest. Specifically, Guerrero challenges the admission of certain evidence

recovered from his home during his arrest on the grounds that it was discovered

as a result of (1) an unlawful protective sweep and (2) an involuntary consent.

### 4 B ACKGROUND

In the 1990s, Antonio Guerrero was a member of “Solid Gold,” a drug

organization that sold crack cocaine out of gold

‐ capped vials near 173rd Street in

the Bronx, New York. Solid Gold engaged in many turf battles with rival drug

dealers over the years. In connection with one such dispute, Guerrero shot and

killed rival crack cocaine dealer Livino Ortega, who apparently had been

impinging on Solid Gold’s territory and damaging its brand by selling inferior

‐

quality crack cocaine using Solid Gold’s packaging. Guerrero also killed

Ortega’s friend, Fernando Garrido, in the same September 3, 1994 shooting

incident.

On April 7, 2009, a federal grand jury in the Southern District of New York

returned an indictment charging, inter alia

, Guerrero with the intentional

murders of Ortega (Count One) and Garrido (Count Two) while engaged in an

offense punishable under § 841(b)(1)(A), “to wit, a conspiracy to distribute fifty

grams and more” of crack cocaine, in violation of § 848(e)(1)(A). App’x 27–28.

Guerrero was arrested at his Miami, Florida home the following week and

tried to a jury in the Southern District of New York beginning April 2010. After a

### 5 six

‐ week trial, Guerrero was found guilty of both counts on June 7, 2010. 1

Guerrero thereafter filed a series of unsuccessful post

‐ trial motions, and the

District Court sentenced him principally to two concurrent terms of 25 years’

imprisonment. A judgment of conviction was entered October 16, 2014. 2

D ISCUSSION 3

I. Fair Sentencing Act Challenge

Guerrero was convicted of intentional murder while engaged in a drug

trafficking conspiracy, in violation of § 848(e)(1)(A), which provides in pertinent

part:

[A]ny person engaging in an offense punishable under section

841(b)(1)(A) of this title

. . . who intentionally kills

. . . or causes the

intentional killing of an individual and such killing results, shall be

sentenced to any term of imprisonment, which shall not be less than

20 years, and which may be up to life imprisonment, or may be

sentenced to death

. . . .

1 The record reflects a discrepancy regarding the date of the jury verdict. Compare

App’x 15, 24, and 525 (indicating June 4, 2010), with App’x 18, 22, 421, and 423

(indicating June 7, 2010). We rely on the trial transcript, which indicates the correct date

to be June 7, 2010. See App’x 402, 415–19.

2 The judgment contains a typographical error. It misidentifies Count 1 as pursuant to

§ 844(e)(1)(A), see App’x 553, but both counts are in fact pursuant to § 848(e)(1)(A), see

App’x 27–28, 415.

3 Guerrero’s challenges to his conviction implicate questions of statutory interpretation,

which are questions of law that we review de novo

. See United States v. Santos

, 541 F.3d

63, 67 (2d Cir. 2008).

### 6 21 U.S.C. § 848(e)(1)(A). At the times of Guerrero’s murder offense conduct,

indictment, and conviction, the threshold quantity of crack cocaine for an offense

punishable under § 841(b)(1)(A) was 50 grams or more. Then, on August 3, 2010,

Congress enacted the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat.

2372, a law designed to help reduce sentencing disparities between powder

cocaine and crack cocaine offenses. See Dorsey v. United States

, 132 S. Ct. 2321,

2329 (2012); United States v. Johnson

, 732 F.3d 109, 112 (2d Cir. 2013). Among

other changes, the FSA increased the threshold quantity of crack cocaine

necessary to trigger the enhanced sentencing provision under § 841(b)(1)(A) from

50 grams to 280 grams. See Pub. L. No. 111–220, § 2(a), 124 Stat. 2372. The Act

makes no mention of § 848(e)(1)(A). See id.

A few years after the FSA’s enactment, the Supreme Court in Dorsey

addressed whether the Act’s more lenient sentencing regime applied

retroactively to defendants who committed crack cocaine offenses before August

3, 2010, but who were not sentenced until after that date. Dorsey

, 132 S. Ct. at

2326. The Court held that it did, reasoning in part that Congress through the

FSA intended to apply to mandatory minimum sentences the established

principle that “sentencing judges [are] to use the Guidelines Manual in effect on

### 7 the date that the defendant is sentenced, regardless of when the defendant

committed the offense, unless doing so would violate the ex post facto clause .” Id

.

at 2332 (internal quotation marks omitted); accord United States v. Highsmith

, 688

F.3d 74, 77 (2d Cir. 2012) (per curiam).

Guerrero argues that the FSA compels vacatur of his conviction. He

reasons that, while his September 1994 murder offense conduct and June 2010

conviction preceded the FSA, his October 2014 sentencing occurred after the Act

went into effect, and, under Dorsey ’s retroactivity rule, § 848(e)(1)(A)’s drug

trafficking element required the jury to find that the conspiracy involved at least

280 grams of crack cocaine. Because only a quantity of 50 grams was alleged and

proved, the argument goes, the Government failed to establish an element of the

charged murder offense and Guerrero’s conviction must be vacated.

This argument misreads § 848(e)(1)(A), misunderstands the FSA, and

misapplies Dorsey

. A defendant may be convicted under § 848(e)(1)(A) if he was

engaged in a drug trafficking offense punishable under § 841(b)(1)(A) at the time

he committed intentional murder. 4 The crime is complete at the time of the

4 Of course, a defendant need not be “actively engaged in the distribution of drugs in

order to be convicted under the drug

‐ related murder prong of section 848(e)(1)(A). The

defendant need only be engaging in an offense punishable under section 841(b)(1)(A),

### 8 murder, see 21 U.S.C. § 848(e)(1)(A), and it is as of that time that the statute’s

drug trafficking element is measured. Here, Guerrero committed the murders in

September 1994, at which time the threshold quantity of crack cocaine necessary

under § 841(b)(1)(A) was 50 grams or more. The jury’s finding that Guerrero had

been engaged in a conspiracy to distribute 50 grams or more of crack cocaine at

the time he intentionally killed Ortega and Garrido therefore satisfied the drug

trafficking element of the § 848(e)(1)(A) murder offense. There was no error in

the indictment, the instructions, or the verdict.

No other conclusion flows from the FSA, a sentencing statute principally

designed to increase threshold quantities of drugs necessary to trigger certain

enhanced penalty schemes, to remove certain mandatory minimum sentences,

and to direct the promulgation of new Sentencing Guidelines. See Pub. L. No.

111–220, 124 Stat. 2372. The general federal savings statute provides in pertinent

part:

The repeal of any statute shall not have the effect to release or

extinguish any penalty, forfeiture, or liability incurred under such

statute, unless the repealing Act shall so expressly provide, and such

statute shall be treated as still remaining in force for the purpose of

which includes conspiracy to commit such an offense.” Santos

, 541 F.3d at 68 (citation

omitted) (internal quotation marks omitted).

### 9 sustaining any proper action or prosecution for the enforcement of

such penalty, forfeiture, or liability.

1 U.S.C. § 109. Because the FSA did not expressly extinguish any criminal

liability under § 848(e)(1)(A), the law’s enactment did not retroactively invalidate

Guerrero’s conviction.

Dorsey is equally unaccommodating to Guerrero’s challenge. That

decision’s retroactivity rule simply permits defendants who committed offenses

before August 3, 2010, but who were not sentenced until after that date, to be

sentenced under the FSA’s more lenient sentencing regime. See Dorsey

, 132 S. Ct.

at 2335 (“Congress intended the Fair Sentencing Act’s new, lower mandatory

minimums to apply to the post

‐ Act sentencing of pre

‐ Act offenders.”). Dorsey

nowhere purports to limit criminal liability for an offense such as murder in

violation of § 848(e)(1)(A). Guerrero’s FSA

‐ based challenge to his conviction

fails.

II. Predicate Drug Trafficking Offense & Statute of Limitations Challenges

Guerrero next argues that the Government could not even ʺ charge[]” him

with murder in violation of § 848(e)(1)(A) unless he had, “before” being so

charged, “be[en] convicted of the underlying drug offense.” See Appellant’s Br.

52. Section 848(e)(1)(A) makes no such demand. The statute requires the

### 10 Government to prove that the defendant was engaged in a predicate drug

offense at the time of the intentional murder. Guerrero does not dispute that the

evidence at trial was sufficient to establish that at the time of the murders he was

engaged in trafficking in crack cocaine as a member of Solid Gold; and he

acknowledges that “the district court instructed the jury that, to find Guerrero

guilty of the § 848(e) charges, it had to find that Guerrero killed while engaged in

a drug conspiracy involving 50 grams or more of crack cocaine (and, therefore,

punishable under § 841(b)(1)(A)).” See Appellant’s Br. 15; see also Trial Tr. 3383

(instructing that to convict under § 848(e)(1)(A) the jury must find, inter alia

, that

the defendant “intentionally killed” and that the drug dealing and the killing

“were in some way related or connected”). There is no suggestion that the jury

was not properly instructed on all of the elements of the § 848(e)(1)(A) offense.

The statute does not require that the defendant have been previously convicted

of, or be separately charged with, the predicate drug offense in order to be

charged or convicted under § 848(e)(1)(A).

Guerrero relatedly argues that his § 848(e)(1)(A) murder prosecution is

governed by the predicate drug offense’s five

‐ year statute of limitations, as set

forth in 18 U.S.C. § 3282. It is not. Section 848(e)(1) establishes a capital offense

### 11 punishable by “any term of imprisonment, which shall not be less than 20 years,

and which may be up to life imprisonment, or

. . . death.” 21 U.S.C.

§ 848(e)(1)(A). Guerrero’s § 848(e)(1)(A) prosecution is therefore governed by 18

U.S.C. § 3281, which provides that “[a]n indictment for any offense punishable

by death may be found at any time without limitation.” 5 18 U.S.C. § 3281. That

the Government elected not to pursue capital punishment here is immaterial to

whether Guerrero’s § 848(e)(1)(A) offenses are in fact capital offenses for

purposes of § 3281. Cf. United States v. Payne

, 591 F.3d 46, 59 (2d Cir. 2010).

III. Fourth Amendment Challenges

As part of Guerrero’s April 15, 2009 arrest at his Florida home pursuant to

a warrant, agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives

conducted a protective sweep of Guerrero’s home and, in the process, saw a

photograph of Guerrero with suspected members of a drug trafficking

organization. They then obtained Guerrero’s oral and written consent for a

limited search for, and seizure of, photographs depicting members of that

5 Indeed, courts of this Circuit have held the same. See, e.g.

, Soler v. United States

, No. 05

CR. 165 LAP, 2015 WL 4879170, at *22 (S.D.N.Y. Aug. 14, 2015); United States v. Dames

,

No. 04 CR. 1247 PAC, 2007 WL 1032257, at *1 (S.D.N.Y. Mar. 30, 2007); United States v.

Martinez

‐ Martinez

, No. 01 CR 307, 2001 WL 1287040, at *2 (S.D.N.Y. Oct. 24, 2001).

### 12 organization. Guerrero challenges the admission of those photographs as fruits

of an unlawful protective sweep and an involuntary consent.

Under the Fourth Amendment’s protective sweep exception, agents

executing an arrest inside a home may, “as a precautionary matter and without

probable cause or reasonable suspicion, look in closets and other spaces

immediately adjoining the place of arrest from which an attack could be

immediately launched.” Maryland v. Buie

, 494 U.S. 325, 334 (1990); United States

v. Jackson

, 778 F.2d 933, 937 (2d Cir. 1985) (stating principle that officers may

perform a protective sweep “to check for third persons who may destroy

evidence or pose a threat to the officers” (internal quotation marks omitted)).

Where agents execute an arrest just outside the home, they are authorized to

sweep the house if there are articulable facts that would warrant the reasonable

belief that someone within the home is “aware of the arrest outside the premises”

and “might destroy evidence, escape or jeopardize the safety of the officers or the

public.” United States v. Oguns

, 921 F.2d 442, 446 (2d Cir. 1990) (internal

quotation marks omitted). Here, whether Guerrero’s arrest occurred inside his

home or just outside of it, we find no error in the District Court’s conclusion that

the protective sweep was justified under the circumstances.

### 13 Under the Fourth Amendment’s consent exception, “warrantless entry and

search are permissible if the authorities have obtained the voluntary consent of a

person authorized to grant such consent.” United States v. Elliott

, 50 F.3d 180, 185

(2d Cir. 1995). To be valid, consent must be voluntary and therefore cannot “be

coerced, by explicit or implicit means, by implied threat or covert force.” United

States v. Snype

, 441 F.3d 119, 131 (2d Cir. 2006) (internal quotation marks omitted)

(quoting Schneckloth v. Bustamonte

, 412 U.S. 218, 228 (1973)). We do “not reverse

a finding of voluntary consent except for clear error.” United States v. Moreno

,

701 F.3d 64, 76 (2d Cir. 2012) (internal quotation marks omitted). Here, based on

the record, including the District Court’s credibility determinations, we find no

such error.

C ONCLUSION

We have considered all of Guerrero’s arguments on appeal and find them

to be without merit. For the foregoing reasons, the judgment of the District

Court is AFFIRMED, but the matter is REMANDED for the sole purpose of

making a clerical correction to the judgment’s description of Count 1 by

replacing “844(e)(1)(A)” with “848(e)(1)(A)”.