New Case: 5th Circuit & Blakley

Looks like the United States Supreme Court will be deciding whether the federal sentencing guidelines will stand as we now know them.

United States Court of Appeals

Fifth Circuit

F I L E D

July 12, 2004 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III

Clerk

_____________________

No. 03-30437

_____________________

UNITED STATES OF AMERICA

Plaintiff – Appellee

v.

FRANCISCO D PINEIRO, also known as Frank Pineiro

Defendant – Appellant

__________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

__________________________________________________

Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit

Judges.

KING, Chief Judge:

In this case we are called upon to consider the impact on

the federal Sentencing Guidelines of the Supreme Court’s recent

opinion in Blakely v. Washington, 124 S. Ct. 2531 (June 24,

2004). Defendant Francisco D. Pineiro was convicted in the

district court of violating the federal controlled-substances

laws. During sentencing, the district judge followed the non-controversial

pre-Blakely procedures and made various factual

findings that determined Pineiro’s sentencing range under the

Guidelines. This court assuredly will not be the final arbiter of

whether Blakely applies to the federal Guidelines, but the

unremitting press of sentencing appeals requires us to produce a

decision. We have undertaken to discern, consistent with our

role as an intermediate appellate court, what remains the

governing law in the wake of Blakely. Having considered the

Blakely decision, prior Supreme Court cases, and our own circuit

precedent, we hold that Blakely does not extend to the federal

Guidelines and that Pineiro’s sentence did not violate the

Constitution. Accordingly, the defendant’s sentence is affirmed.

I. BACKGROUND

A three-count indictment charged Pineiro with committing

federal drug offenses. Count one charged Pineiro with carrying

on a marijuana- and cocaine-distribution conspiracy, involving at

least 100 kilograms of marijuana and 50 grams of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and 846.1 Count two charged

him with possessing and aiding and abetting possession with

intent to distribute approximately three-fourths of a pound of

marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

1 Section 841(a)(1) provides that “it shall be unlawful

for any person knowingly or intentionally . . . to manufacture,

distribute, or dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance.� Section 846

makes it a crime to “attempt[] or conspire[] to commit any

offense defined in this subchapter.�

2

§ 2.2 Count three charged him with possessing and aiding and

abetting possession with intent to distribute approximately

twenty-one pounds of marijuana in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2.

Pineiro pleaded not guilty, and his case proceeded to trial.

On the first count of the indictment, the verdict form required

the jury to indicate the amounts (if any) of marijuana and

cocaine that the jury found that Pineiro had conspired to

distribute. As to marijuana, the jury could choose whether

Pineiro was guilty of conspiring to distribute “100 kilograms or

more,â€? “50 to 100 kilograms,â€? “less than 50 kilograms,â€? or

whether he was not guilty. Similarly, for cocaine, the jury

could choose from “50 grams or more,â€? “50 grams or less,â€? or not

guilty.3 The jury found Pineiro guilty of conspiring to

distribute the lowest amounts listed: “less than 50 kilogramsâ€? of

marijuana and “50 grams or lessâ€? of cocaine. The jury also found

Pineiro guilty as charged on counts two and three.

Based on the drug quantities found by the jury, the maximum

sentences set forth in the United States Code were 20 years for

count one, see 21 U.S.C. § 841(b)(1)(C) (establishing maximum

2 Section 2 is the United States Code’s general

prohibition on aiding and abetting violations of the federal

criminal statutes.

3 Some of the amounts on the verdict form do not line up

with the gradations in 21 U.S.C. § 841(b). At oral argument we

inquired as to why the form was confected in this way, but

neither side could provide an explanation.

3

sentences for any amount of cocaine less than 500 grams), and 5

years for counts two and three, see id. § 841(b)(1)(D)

(establishing maximum sentences for less than 50 kilograms of

marijuana).

In accordance with the usual practice, a probation officer

prepared a Presentence Investigation Report (PSR) to assist the

judge in determining an appropriate sentence within the statutory

range. The PSR used the 2002 version of the United States

Sentencing Commission’s Guidelines Manual. The PSR held Pineiro

responsible for amounts of drugs much greater than the amounts

found by the jury: based on statements from several unnamed

cooperating witnesses, the PSR indicated that Pineiro was

responsible for 453.6 kilograms of marijuana and 1,048.95 grams

of cocaine in connection with the conspiracy charge. Based on

this quantity of illegal drugs, the PSR concluded that the base

offense level for the first count was 28. See U.S.S.G.

§ 2D1.1(c) (Drug Quantity Table). The PSR further recommended

that Pineiro also receive a four-level sentence enhancement under

U.S.S.G. § 3B1.1(a) for being “an organizer or leaderâ€? of the

conspiracy. The resulting total offense level of 32, when

combined with Pineiro’s criminal history category of I (he had no

prior convictions), yielded a Guidelines sentencing range of 121

to 151 months.

Pineiro objected to the PSR on several grounds, two of which

are relevant to this appeal. First, he objected to the base

4

offense level of 28, complaining that the jury’s findings with

respect to drug quantities required a lower base offense level.

His objection argued that using the larger quantities would

conflict with Apprendi v. New Jersey, 530 U.S. 466 (2000), and

would disrespect “the sanctity of the jury proceedings.â€? Second,

he objected to the four-level “organizer or leaderâ€? enhancement

on the ground that the evidence at trial did not support such a

factual finding, but he did not raise the constitutional claim

regarding this enhancement.

The district court overruled Pineiro’s objections and

sentenced him to 121 months on the first count, 60 months on the

second count, and 60 months on the third count, with the

sentences to run concurrently.

Piniero then appealed his sentence. In his initial brief,

he conceded that his Apprendi-based challenge to the district

court’s drug-quantity calculation was foreclosed by circuit

precedent, but he nonetheless raised the issue to preserve it for

further review. After briefing was completed but before oral

argument, the Supreme Court decided Blakely, and we ordered

supplemental briefing to assess its impact. Pineiro contends

that Blakely applies to the federal Guidelines and that his

5

sentence must be vacated and the case remanded for resentencing.4

The government contends that Blakely does not apply.

II. ANALYSIS

Impact of Blakely A.

Had today’s case been decided a month ago, Pineiro’s

Apprendi challenge would not have been a difficult one to

resolve. Although post-verdict judicial findings of fact

increased Pineiro’s sentence substantially, the resulting

sentence does not exceed the statutory maximum set forth in the

United States Code. We therefore would simply have applied longentrenched

circuit precedent that holds Apprendi inapplicable to

such circumstances. See, e.g., United States v. Floyd, 343 F.3d

363, 372 (5th Cir. 2003), cert. denied, 124 S. Ct. 2190 (2004);

United States v. McIntosh, 280 F.3d 479, 484 (5th Cir. 2002);

United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert.

denied, 531 U.S. 1182 (2001); Doggett, 230 F.3d at 165-66. This

line of authority embraces the view that judge-made factual

4 Pineiro argues, and we agree, that his Apprendi-based

objection to the PSR’s drug-quantity calculations was sufficient

to preserve for de novo appellate review the constitutional

challenge to his sentence. See United States v. Doggett, 230

F.3d 160, 162-63, 165 (5th Cir. 2000) (holding that an objection

to a PSR based on Jones v. United States, 526 U.S. 227 (1999),

preserved an Apprendi challenge to the defendant’s sentence). As

to the sentence enhancement for being a leader or organizer,

Pineiro does not claim that his fact-based objection to the PSR

was sufficient to preserve the constitutional issue; he claims,

however, that the district court committed reversible plain error

in light of Blakely.

6

findings that determine Guidelines ranges below the

congressionally enacted maximum sentence are constitutionally

equivalent to the sentencing judge’s historic discretion to

choose a sentence within a legislatively authorized range. But

because of the Supreme Court’s recent decision in Blakely, we are

now required to consider the viability of that line of cases, and

indeed the continued force of certain prior Supreme Court

decisions as well. Committed as we are to principles of stare

decisis and orderliness, we do not depart from settled law in the

absence of an on-point en banc or Supreme Court holding. See,

e.g., Robinson v. Parsons, 560 F.2d 720, 721 n.2 (5th Cir. 1977).

Blakely involved the sentencing regime of the State of

Washington. The Washington criminal code establishes maximum

sentences for felonies according to whether the crime is a class

A, B, or C felony. Also codified as part of the state statutes,

however, is the Sentencing Reform Act, which establishes

presumptive sentencing ranges based on the “seriousness levelâ€? of

the offense and the offender’s criminal history. The seriousness

level of the offense is for the most part a function of the

statute of conviction. The Act permits the judge to impose a

sentence above the presumptive range when there exist

“substantial and compelling reasons justifying an exceptional

sentence.� The Act sets out a list of such factors, but the list

is only illustrative, not exhaustive. A factor is a permissible

reason for imposing an exceptional sentence only if it is not

7

already taken into account in the calculation of the presumptive

range.

Blakely pleaded guilty to second-degree kidnaping with a

firearm. As a class B felony, it was punishable under the state

criminal code by a sentence of up to 10 years. The Sentencing

Act, though, specified a presumptive range of only 49 to 53

months for this particular crime. At sentencing, the judge

imposed an exceptional sentence of 90 months on the ground that

Blakely had acted with “deliberate cruelty,â€? a statutorily

enumerated ground for upward departure. The defendant objected

to the increase, but the trial judge adhered to his decision

after conducting a three-day bench hearing.

In reaching its decision that Blakely’s sentence was imposed

in violation of the Constitution, the Supreme Court took as its

primary precedent its decision in Apprendi v. New Jersey.

Apprendi involved two New Jersey statutes, one that authorized a

10-year term for the second-degree offense of unlawful possession

of a firearm and a second statute that provided for a term of 10

to 20 years if the trial judge found that the defendant acted

with the intent to intimidate the victim based on his race or

other protected statuses. 530 U.S. at 468-69. The Apprendi

Court concluded that the factual findings supporting the enhanced

sentence had to be made by the jury, not the judge. “Other than

the fact of a prior conviction,â€? the Court held, “any fact that

increases the penalty for a crime beyond the prescribed statutory

8

maximum must be submitted to a jury, and proved beyond a

reasonable doubt.� Id. at 490 (emphasis added). Two years

later, in Ring v. Arizona, 536 U.S. 584, 597, 604-09 (2002), the

Court applied Apprendi to an Arizona capital-sentencing statute

that permitted imposition of the death penalty when a judge found

one of ten aggravating factors. As the Court described them in

Blakely, the Apprendi and Ring decisions both held “that the

defendant’s constitutional rights had been violated because the

judge had imposed a sentence greater than the maximum he could

have imposed under state law without the challenged factual

finding.� Blakely, slip op. at 6-7.

The aspect of Blakely that threatens the federal Guidelines

is the Court’s reasoning regarding the relevant “statutory

maximum� for Apprendi purposes. The State argued that the

relevant maximum was the 10-year maximum that the criminal code

specified for class B felonies. Since the judge’s exceptional

90-month sentence was still within the 10-year maximum, the State

contended that there was no Apprendi violation. The Court

pointedly rejected that argument, instead concluding that the

relevant maximum was 53 months, the top of the presumptive

sentencing range under Washington’s Sentencing Reform Act:

Our precedents make clear . . . that the “statutory

maximum� for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the

defendant. In other words, the relevant “statutory

maximum� is not the maximum sentence a judge may impose

after finding additional facts, but the maximum he may

9

impose without any additional findings. When a judge

inflicts punishment that the jury’s verdict alone does

not allow, the jury has not found all the facts “which

the law makes essential to the punishment,� and the judge

exceeds his proper authority.

Id. at 7 (citations omitted). The Court then pointed out that

the trial judge could not have imposed the 90-month sentence

based solely on the facts admitted in the guilty plea. Id. at 7-

8. To support that sentence, the judge had to find the

aggravating factor. The Court explained:

The “maximum sentenceâ€? is no more 10 years here than it

was 20 years in Apprendi (because that is what the judge

could have imposed upon finding a hate crime) or death in

Ring (because that is what the judge could have imposed

upon finding an aggravator).

Id. at 8.

The Court acknowledged, and did not overrule, prior cases

upholding sentencing schemes that impose a mandatory minimum

sentence based on judge-made factual findings. See Harris v.

United States, 536 U.S. 545 (2002); McMillan v. Pennsylvania, 477

U.S. 79 (1986). The Court also reaffirmed the constitutionality

of indeterminate-sentencing regimes in which a sentencing judge

may, but need not, rely on factual determinations outside of the

verdict in fixing a sentence within a broad statutory range. See

Williams v. New York, 337 U.S. 241 (1949). But the Court

distinguished mandatory-minimum and indeterminate-sentencing

systems from the Washington system on the ground that they did

not involve sentences “greater than what state law authorized on

the basis of the verdict alone.� Blakely, slip op. at 8.

10

Justice Scalia’s opinion for the Blakely majority noted that

the federal Guidelines were not before the Court, and the Court

expressly declined to express any opinion as to them. Id. at 9

n.9. That disclaimer does not by itself mean that Blakely

carries no import for the federal Guidelines, for the binding

force of a Supreme Court decision is ordinarily not limited to

the particular set of facts that produces it. Indeed, the

dissenting Justices certainly thought that the Court’s reasoning

might foretell the end of the federal Guidelines. See id. at 12-

13 (O’Connor, J., dissenting); id. at 19-21 (Breyer, J.,

dissenting). That prophecy has already been realized in several

courts across the country, see, e.g., United States v. Booker,

No. 03-CR-026-S-01 (7th Cir. July 9, 2004); United States v.

Croxford, No. 2:02-CR-00302PGC, 2004 WL 1521560 (D. Utah July 7,

2004), though those courts have reached no consensus on how

sentencing is to proceed after the overthrow of the old regime.

In the wake of Blakely, the constitutional fate of the

federal Guidelines depends on whether the Guidelines effectively

operate as statutes that define different offenses with different

maximum sentences; expressed in different terms, the question is

whether a Guidelines sentencing range unenhanced by judicial

findings sets a “maximum sentenceâ€? for purposes of Apprendi. If

that is how the Guidelines operate, then Pineiro’s sentence is

unconstitutional because the verdict did not authorize the

sentence; instead, the judge’s findings effectively determined

11

the offense of which Pineiro was convicted. The competing vision

of how the Guidelines operate–the position that the government

urges–pictures the Guidelines as a tool for channeling the

sentencing court’s historic discretion to choose a sentence

within the broad range established by the crime’s statutory

(i.e., United States Code) minimum and maximum. On this second

view, a sentencing judge’s factual findings under the Guidelines

do not raise the “maximum sentenceâ€? to which the defendant is

exposed, the infirmity that the Court identified in Apprendi and

Ring; the only constitutionally relevant “maximum sentence,â€?

according to this second view, is the 20-year sentence authorized

in § 841 of Title 21 of the United States Code. The

constitutional implication of this second view is that judge-made

factual findings that determine Guidelines ranges within the

statutory maximum are no more problematic than the sentencing

judge’s historic discretion to choose a sentence within a

legislatively authorized range. As explained more fully below,

both the Supreme Court and this court have for some time embraced

the second vision of how the Guidelines operate.

Undeniably, Blakely strikes hard at the prevailing

understanding of the Guidelines. The Guidelines, unlike

Washington’s Sentencing Act, are not statutes, but they are

nonetheless binding on sentencing courts. See Stinson v. United

States, 508 U.S. 36, 42, 44-45 (1993). Federal statutes direct

the district judge to follow the Guidelines. See 18 U.S.C.

12

§ 3553(b) (stating that the sentencing court “shall impose a

sentence of the kind, and within the range,� established by an

applicable Guideline). Like the judge who disregards the

Washington sentencing rules, a federal judge who disregards the

Guidelines does so on pain of reversal. The Guidelines Manual is

not a catalog of mere suggestions.

But Blakely, which did not actually involve the federal

Guidelines, is not the only case that we must consider. While we

are bound to follow Blakely, as an inferior court we are also

bound to examine the Supreme Court’s prior pronouncements and

guidance regarding the nature of the Guidelines. That

examination reveals that a number of the Court’s prior cases,

including cases that reject various constitutional challenges to

the Guidelines, are founded on the proposition that there are

constitutionally meaningful differences between Guidelines ranges

and United States Code maxima. These cases paint a picture of

how the Guidelines operate that clashes with the one that Pineiro

would have us adopt.

In canvassing those prior rulings, we look first to

Mistretta v. United States, 488 U.S. 361 (1989). Decided shortly

after the promulgation of the Guidelines, Mistretta upheld them

against constitutional arguments that Congress had delegated

excessive authority to the Sentencing Commission and that the

Commission was constituted in violation of the separation of

powers. Id. at 370-71, 380. The opinion did not discuss the due

13

process or Sixth Amendment considerations involved in Apprendi

and Blakely, but the case is not without meaning for us. In the

course of the Court’s rejection of the argument that the

placement of the Sentencing Commission in the judicial branch

violated the separation of powers by placing legislative

policymaking authority in the judiciary, see id. at 383, 385, the

Court described the Guidelines as follows:

[The Guidelines] do not bind or regulate the primary

conduct of the public or vest in the Judicial Branch the

legislative responsibility for establishing minimum and

maximum penalties for every crime. They do no more than

fetter the discretion of sentencing judges to do what

they have done for generations–impose sentences within

the broad limits established by Congress.

Id. at 396 (emphasis added). Thus, part of the reason that the

Court was able to reject the separation-of-powers challenge was

its conclusion that the Guidelines do not set maximum sentences

in the same way as do congressional enactments.

Later Supreme Court cases have consistently embraced and

relied on the distinction between Guidelines ranges and maximum

sentences in rejecting various challenges to the Guidelines. One

example of this practice is Edwards v. United States, 523 U.S.

511 (1998). The defendants in Edwards were charged with

conspiring to distribute cocaine powder and crack. The jury

convicted them, but the instructions stated that the government

only had to prove a conspiracy involving powder or crack. In

determining the sentence, the judge held the defendants

responsible for certain amounts of both forms of the drug. The

14

defendants challenged their sentences on the ground that the

sentencing judge was required by the Guidelines, the statutes,

and the Constitution to consider only powder, which is punished

less harshly than crack. The unanimous Supreme Court disagreed.

The Court’s opinion was mainly concerned with how the Guidelines’

“relevant conductâ€? rules operate: Since the Guidelines instruct

the judge to examine relevant conduct as well as conduct

underlying the conviction, the crack could be considered even if

the verdict were limited to powder. Id. at 513-14. But the

Court also turned away a potential constitutional argument,

observing that the defendants’ contentions might have been more

persuasive had the defendants’ sentences exceeded the statutory

maxima set forth in the United States Code. Id. at 515. This

remark is only suggestive in itself–the Court did not really

explain what the potential constitutional argument would be5–but

it gathers meaning by virtue of the fact that the Court cited

this passage from Edwards at the close of Apprendi:

The 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, 523 U.S. 511, 515 (1998) (opinion of BREYER, J.,

for a unanimous court) (noting that “[o]f course,

petitioners’ statutory and constitutional claims would

make a difference if it were possible to argue, say, that

the sentences imposed exceeded the maximum that the

statutes permit for a cocaine-only conspiracy. That is

because a maximum sentence set by statute trumps a higher

sentence set forth in the Guidelines. [United States

5 The defendants’ briefs show that they raised Sixth

Amendment and due process considerations.

15

Sentencing Commission, Guidelines Manual § 5G1.1 (Nov.

1994)]�).

Apprendi, 530 U.S. at 497 n.21. Our precedents have accordingly

read Apprendi as intending to leave undisturbed the rule,

described in Edwards, that the sentencing judge may properly find

facts that move the Guidelines range within the statutory

maximum. See United States v. McWaine, 290 F.3d 269, 274 (5th

Cir.), cert. denied, 537 U.S. 921 (2002); Doggett, 230 F.3d at

166; see also United States v. Kinter, 235 F.3d 192, 201-02 (4th

Cir. 2000) (similarly harmonizing Apprendi and Edwards). Indeed,

the Supreme Court’s own post-Apprendi cases have continued to

treat the United States Code maximum as the relevant

consideration for purposes of Apprendi. See United States v.

Cotton, 535 U.S. 625, 633 n.3 (2002) (noting that the defendants

challenged the PSR’s determination that the crime involved 1.5

kilograms of cocaine, which yielded a Guidelines offense level of

38, but “they never argued that the conspiracy involved less than

50 grams of cocaine base, which is the relevant quantity for

purposes of Apprendi, as that is the threshold quantity for the

penalty of life imprisonment in 21 U.S.C. § 841(b)(1)(A)â€?

(emphasis added)).

Also instructive is Witte v. United States, 515 U.S. 389

(1995). There, the drug-quantity calculations that supported the

defendant’s sentence for a conviction arising from a 1991 drug

transaction included quantities from an uncharged 1990 drug

16

transaction as relevant conduct. When the defendant was later

indicted for the 1990 transaction, he moved to dismiss the

indictment on double-jeopardy grounds. The Court recognized that

the inclusion of the 1990 conduct increased the defendant’s

offense level and corresponding Guidelines range, but it pointed

out that the sentence “still falls within the scope of the

legislatively authorized penalty (5 to 40 years).� Id. at 399

(emphasis added). The Court then concluded that the defendant’s

first sentence did not count as “punishmentâ€? for the separate

offense of committing the 1990 transaction. Id. at 399-400. The

Court observed that courts had traditionally been permitted to

use uncharged conduct to inform their sentencing discretion, and

the Court specifically stated that the advent of the Guidelines,

with their “relevant conductâ€? rules, did not mean that offenders

were now being “punishedâ€? for uncharged conduct as a separate

offense. Id. at 397-402. The Court concluded:

Because consideration of relevant conduct in determining

a defendant’s sentence within the legislatively

authorized punishment range does not constitute

punishment for that conduct, the instant prosecution does

not violate the Double Jeopardy Clause’s prohibition

against the imposition of multiple punishments for the

same offense.

Id. at 406.

17

These cases, and others like them,6 do not discuss the Sixth

Amendment right to a jury trial, and we do not pretend otherwise.

What is true, however, is that the Supreme Court has repeatedly

blessed the Guidelines and upheld them against sundry

constitutional challenges, often employing the proposition that

the United States Code, and not the Guidelines, establishes

maximum sentences for offenses. The Supreme Court’s cases, and

ours, have articulated a particular vision of the interaction

between the Guidelines and the United States Code, and it is a

vision that has held constitutional meaning. To reject that view

of the Guidelines would not directly “overruleâ€? any Supreme Court

holding–a prerogative reserved unto the Court itself–but it

would plainly create an unsettling tension with them.

Blakely may have weakened the long-embraced distinction

between United States Code maxima and Guidelines ranges, but we

cannot conclude that Blakely–which explicitly reserved comment on

the Guidelines–has abolished the distinction’s importance. The

sentencing scheme at issue in Blakely, like that involved in

Apprendi, essentially established two distinct statutory maximum

sentences, with the choice between them turning on judge-made

6 See, e.g., United States v. Watts, 519 U.S. 148, 156

(1997) (per curiam) (stating that “we have held that application

of the preponderance standard at sentencing generally satisfies

due process�). The Watts Court held that the sentencing judge

could consider conduct underlying charges of which the defendant

had been acquitted, the same factual scenario at issue in today’s

case. See id. at 156-57.

18

findings of fact. In such a circumstance, it makes sense to say

that the legislature has effectively created distinct offenses.7

When the legislature has thus created different offenses, the

defendant has a right to have a jury of his peers decide whether

he is guilty of all of the elements of the more aggravated

offense. See Apprendi 530 U.S. at 476-77. But the Guidelines do

not present such a stark case. We do not believe that the

Sentencing Commission can be thought of as having created for

each United States Code section a hundred different Apprendi

“offensesâ€? corresponding to the myriad possible permutations of

Guidelines factors, with each “offenseâ€? then requiring jury

findings on all of its (Guidelines-supplied) elements. Given the

nature of the Guidelines, we think the better view–and one that

respects the prior decisions of both the Supreme Court and this

court–is that the relevant “offensesâ€? and “maximum punishmentsâ€?

are those defined and authorized by Congress in the United States

Code. Judicial findings under the Guidelines that set sentences

within that authorized range therefore do not offend the

Constitution.

7 See Ring, 536 U.S. at 609 (explaining that the judge’s

finding of “an aggravating circumstance necessary for imposition

of the death penalty . . . operates as the functional equivalent

of an element of a greater offense� (internal quotation marks

omitted)); Apprendi, 530 U.S. at 494 (observing that the effect

of the hate-crime enhancement was “to turn a second-degree

offense into a first-degree offense�).

19

The Supreme Court might later decide that Blakely is broad

enough to sweep away any distinction between the federal

Guidelines and the statutes that the Court addressed in Apprendi,

Ring, and Blakely; the peculiar nature of the Guidelines might

not serve to save them from the fate of the statutes involved in

those cases. Cf. Blakely, slip op. at 12-13 (O’Connor, J.,

dissenting). Nonetheless, considering the entire matrix of

Supreme Court and circuit precedent, we adhere to the position

that the Guidelines do not establish maximum sentences for

Apprendi purposes. In writing these words we are more aware than

usual of the potential transience of our decision. We trust that

the question presented in cases like this one will soon receive a

more definitive answer from the Supreme Court, which can resolve

the current state of flux and uncertainty; and then, if

necessary, Congress can craft a uniform, rational, nationwide

response.

Drug-quantity findings B.

In light of our conclusion that Blakely does not apply to

Pineiro’s case, the sentencing judge’s factual findings regarding

drug quantities are not problematic under governing law. The

Guidelines direct the judge to impose a sentence based not only

on the conduct reflected in the verdict but also on other related

conduct. See U.S.S.G. § 1B1.3; Edwards, 523 U.S. at 513-15.

That was the proper approach in this case, notwithstanding the

20

fact that the jury specifically acquitted Pineiro of the large

drug quantities later found by the judge. See Watts, 519 U.S. at

152-57 (holding that the sentencing judge may consider drug

quantities of which a defendant has been acquitted).

“Organizer or leaderâ€? enhancement C.

The district court imposed a four-level enhancement under

U.S.S.G. § 3B1.1 based on its conclusion that Pineiro acted as an

“organizer or leaderâ€? of a criminal activity. Pineiro objected

on the ground that the evidence did not support such a finding.

We review the district court’s interpretation and application of

the Guidelines de novo and its underlying factual findings for

clear error. United States v. Cabrera, 288 F.3d 163, 168 (5th

Cir. 2002). A finding of fact is clearly erroneous if, based on

a consideration of all the evidence, we are left with the

definite and firm conviction that a mistake has been made. Id.

In deciding whether to impose the enhancement, the court is

to consider the following factors: (1) the exercise of

decisionmaking authority, (2) the nature of the defendant’s

participation in the commission of the offense, (3) the

recruitment of accomplices, (4) any claimed right to a larger

share of the fruits of the crime, (5) the degree of participation

in planning or organizing, (6) the nature and scope of the

illegal activity, and (7) the degree of control or authority

exercised over others. U.S.S.G. § 3B1.1, cmt. n.4.

21

Pineiro argues that the district court erred in applying the

enhancement because the evidence showed only that he sold a

substantial amount of drugs to his accomplices, not that he acted

as a leader of the enterprise. As he points out, several

circuits have held that a buyer-supplier relationship is

insufficient to qualify for the “organizer or leaderâ€? sentence

enhancement. See United States v. Sayles, 296 F.3d 219, 225 (4th

Cir. 2002) (citing cases). This record, however, discloses

evidence that goes well beyond a mere buyer-seller relationship

between Pineiro and his co-conspirators. The evidence permits

the conclusion, for instance, that Pineiro directed and paid

several couriers, including a courier who acted for a coconspirator.

The general character of the evidence, as a factfinder

could view it, is that Pineiro oversaw the logistics of a

drug-distribution scheme in which he had drugs delivered from

Mexico to his property in Texas and then acted as the exclusive

supplier to several co-conspirators in Louisiana over the course

of several years. The evidence here is thus not unlike that in

past cases in which we have upheld the organizer enhancement.

See United States v. Cooper, 274 F.3d 230, 246-47 (5th Cir.

2001); United States v. Castillo, 77 F.3d 1480, 1493 (5th Cir.

1996). Further, our precedents permit the district judge to

consider the quantity of drugs supplied as one factor among

others in considering the organizer enhancement, see United

States v. Valencia, 44 F.3d 269, 273 (5th Cir. 1995), and, on the

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basis of the district court’s factual findings, a substantial

amount of drugs was indeed involved.8 The evidence was

conflicting on many issues, but we cannot say that we are left

with a firm conviction that a mistake has been made. Therefore,

there was no clear error in imposing the enhancement.

III. CONCLUSION

For the foregoing reasons, the defendant’s sentence is

AFFIRMED.

8 Pineiro also argues that, even if the district judge’s

factual findings are not clearly erroneous considering the record

as a whole, we must nonetheless vacate and remand for further

findings because the district judge legally erred in imposing the

enhancement solely on the basis of the PSR’s conclusion that

Pineiro was a “supplier of drugs.â€? But the same paragraph of the

PSR also stated more broadly that Pineiro was “responsible for

the distribution� of a large amount of drugs, and other portions

of the PSR (which the district court adopted) provided a factual

basis for the organizer enhancement. Cf. Valencia, 44 F.3d at

272-73 (rejecting an argument similar to Pineiro’s).

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For more information on this evolving drama:

Judge David Finn