Appeal from the United States District Court for the District of Arizona John M. Roll, Chief District Judge, Presiding, D.C. Nos. 4:02-cr-01016-JMR CRP & 4:08-cr-00123-JMR-CRP.
The opinion of the court was delivered by: N.R. Smith, Circuit Judge
Argued and Submitted December 10, 2009 -- San Francisco, California
Before: Betty B. Fletcher, Sidney R. Thomas, and N. Randy Smith, Circuit Judges.
A defendant may be convicted under 18 U.S.C. § 3146 for failure to appear if he is convicted of a federal crime, released pending sentencing, and then does not attend the sentencing hearing for the initial conviction. The United States Sentencing Guidelines Manual (the "Guidelines") instructs that, rather than calculating the recommended sentences for failure to appear and the underlying conviction separately, the district court should account for failure to appear by enhancing the sentence for the underlying conviction pursuant to Guidelines § 3C1.1 for obstruction of justice and Guidelines § 3C1.3 for commission of an offense while on release. In addition to using the defendant's failure to attend the original sentencing hearing as the basis for these two enhancements, the district court may also use it as grounds for denying the defendant a reduction for acceptance of responsibility under Guidelines § 3E1.1. Such a sentence does not (1) violate the defendant's constitutional rights to due process and protection from double jeopardy, or (2) constitute impermissible double counting under the Sentencing Guidelines.
Miguel Angel Rosas ("Rosas") was convicted of conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana. He was later convicted of failure to appear at his sentencing hearing on the drug convictions. The district court sentenced Rosas to 63 months' imprisonment, 53 months for the drug convictions and 10 months for failure to appear.
On appeal, Rosas claims that the sentence imposed by the district court violated his constitutional rights. Rosas raises three constitutional claims: (1) the district court engaged in impermissible double-counting in violation of the Fifth Amendment's protection against double jeopardy by imposing two Guidelines sentencing enhancements and denying him one reduction on the basis of the same conduct-his failure to appear for sentencing on his 2002 drug conviction; (2) he was deprived of his Fifth Amendment right to due process of law because he did not receive notice that he could be subject to an increased term of imprisonment for failing to appear at sentence; and (3) the district court enhanced his sentence beyond the statutory maximum for the crime based upon facts that were not submitted to the jury and proven beyond a reasonable doubt, as required by Apprendi v. New Jersey, 530 U.S. 466 (2000). Rosas also argues that the rule of lenity applies here and raises non-constitutional challenges to his sentence. Specifically, he claims that the district court erred in denying him an acceptance of responsibility reduction and a mitigating role reduction under the Guidelines.
Rosas became involved in the drug transaction, for which he was convicted, when he accepted the offer of his co-worker, Donald Simms, to transport a load of marijuana for $10 per pound. On January 15, 2002, Rosas, Simms, and another participant, Jessie Tatum, drove together to a Tucson restaurant to meet two potential buyers to arrange for the sale of 250 pounds of marijuana; the buyers were an undercover Drug Enforcement Administration ("DEA") agent and a confidential source. At the meeting, Simms provided the agent a "sample" of marijuana, and the parties agreed to a purchase of 250 pounds of marijuana at a price of $500 per pound, totaling $125,000.
The next day, Rosas, Simms, and Tatum again drove together to meet the buyers. Simms then went with the DEA agent to a separate location to make sure that the buyers had the money. Once Simms was presented with a bag containing $100,000 in cash, he called Tatum and instructed him to have Rosas deliver the drugs to a predetermined drop-off point. Rosas drove a truck to Simms' house, where he helped load it with the marijuana. Rosas then drove it to the drop off point, while Tatum and Simms followed in a separate vehicle. Upon arrival at the drop location, DEA agents attempted to arrest the group; Simms and Rosas fled on foot and escaped. Rosas was not arrested until May 29, 2002. At that time, Rosas was indicted for Conspiracy to Possess with Intent to Distribute Marijuana in violation of 21 U.S.C. § 846, and Possession with Intent to Distribute Marijuana in violation of 21 U.S.C. § 841(a)(1).
Although Rosas did not enter into a plea agreement, he pleaded guilty and cooperated with the authorities. Rosas was released on $15,000 bond on June 17, 2002. On March 19, 2003, the day before a state court sentencing for possession of a narcotic drug for sale (and two weeks before federal sentencing on these charges), Rosas fled to Mexico. At some later point in time, Rosas returned to the United States. On December 3, 2007, he was again arrested for possession of marijuana for sale. A federal grand jury indicted Rosas for failure to appear in violation of U.S.C. ...