United States of America v. Rodrigo Sanchez-Gonzalez

PRECEDENTIAL
Filed June 19, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-2004
UNITED STATES OF AMERICA
v.
RODRIGO SANCHEZ-GONZALEZ,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 98-cr-00500-1)
District Judge: Honorable Herbert J. Hutton
Argued December 6, 2001
Before: ALITO, AMBRO and GREENBERG, Circuit Ju dges
(Filed June 19, 2002)
Giovanni D. Campbell, Esquire
(Argued)
32 West Girard Avenue
Philadelphia, PA 19123
Attorney for Appellant
Michael L. Levy
United States Attorney
Robert A. Zauzmer
Assistant United States Attorney
Chief of Appeals
Kathleen M. Rice (Argued)
Assistant United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge:
Rodrigo Sanchez-Gonzalez was sentenced to 324 months
in prison and ten years of supervised release for cocaine
conspiracy and possession convictions. We consider
whether his ten-year term of supervised release violates
Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi
requires any fact, other than a prior conviction, that

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increases the penalty for a crime beyond the statutory
maximum to be submitted to a jury and proved beyond a
reasonable doubt. Id. at 490. We conclude that Apprendi
does not apply because Sanchez-Gonzalez’s sentence does
not exceed the statutory maximum. Because the other
issues that he raises lack sufficient merit, we affirm his
sentence.1
I. Factual and Procedural History
Sanchez-Gonzalez was arrested on August 27, 1998, for
conspiracy to possess with intent to distribute cocaine in
violation of 21 U.S.C. S 846, and possession of cocaine,
including aiding and abetting the possession of cocaine,
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1. We have jurisdiction over this appeal pursuant to 28 U.S.C. S 1291,
which permits appeal from final decisions of the United States District
Courts, and 18 U.S.C. S 3742, which permits appellate review of
sentences imposed in violation of law or as a result of incorrect
application of the sentencing guidelines.
2
with intent to distribute, in violation of 21 U.S.C.S 841(a)(1)
and 18 U.S.C. S 2.2 The indictment charged that "over 150
kilograms of cocaine" were involved in the offenses. At trial,
the judge gave the following jury instruction regarding drug
quantity:
Throughout the indictment, it is alleged that particular
amounts or quantities of cocaine were involved. The
evidence in the case need not establish the amount or
quantity of cocaine alleged in the indictment, but only
that there was, in fact, a measurable amount of
cocaine involved in the act as charged in the
indictment.
The jury convicted Sanchez-Gonzalez of all charges. At
sentencing, the Court stated that "[i]n this case the
Government proved at trial the defendant was involved in a
conspiracy which distributed in excess of 150 kilograms of
cocaine." It then applied S 2D1.1(c) of the United States
Sentencing Guidelines for offenses involving more than 150
kilograms of cocaine, which indicated a total offense level of
thirty-eight. The Court sentenced Sanchez-Gonzalez to 324
months imprisonment and ten years of supervised release.3
Sanchez-Gonzalez did not object specifically to the Court’s
failure to submit the drug quantity evidence to the jury,
and he did not object that his supervised release term
exceeded the statutory maximum.
II. Discussion
A. Apprendi
Sanchez-Gonzalez argues that his sentence violates
Apprendi because the issue of drug quantity was not
submitted to the jury and proved beyond a reasonable

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doubt. As noted above, Apprendi established that, "[o]ther
than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory
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2. The indictment also sought forfeiture of the property and proceeds
obtained from his crimes pursuant to 21 U.S.C. S 853.
3. The sentencing range for a total offense level of thirty-eight and
Sanchez-Gonzalez’s criminal history category, which is four, is between
324 and 405 months.
3
maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Id. at 490. Sanchez-Gonzalez did not
receive a sentence "beyond the prescribed statutory
maximum." Id. Therefore, he has no claim under Apprendi.
The relevant drug statute, 21 U.S.C. S 841(b)(1), contains
three tiers of penalties that vary with drug quantity. A
defendant who (like Sanchez-Gonzalez) has a prior felony
drug conviction can receive between twenty years and life
imprisonment, and at least ten years of supervised release,
if convicted of possessing five kilograms or more of cocaine,
S 841(b)(1)(A); between ten years and life imprisonment, and
at least eight years of supervised release, if convicted of
possessing five hundred grams or more of cocaine,
S 841(b)(1)(B); and up to thirty years imprisonment, and at
least six years of supervised release, if convicted of
possessing an unspecified quantity of cocaine,
S 841(b)(1)(C). A defendant as to whom drug quantity has
not been found by a jury beyond a reasonable doubt should
be sentenced under S 841(b)(1)(C), because only that section
does not base the sentence on drug quantity. See Apprendi,
530 U.S. at 490; United States v. Vazquez, 271 F.3d 93, 98
(3d Cir. 2001) (en banc).4
Sanchez-Gonzalez’s sentence did not exceed the statutory
maximum imposed by S 841(b)(1)(C). His 324-month prison
term is less than thirty years or 360 months. Likewise, the
ten-year term of supervised release to which the Court
sentenced him obviously satisfies the statutory minimum of
"at least 6 years."
Sanchez-Gonzalez asserts, however, that the ten-year
supervised release term exceeds the maximum contained in
another federal statute, 18 U.S.C. S 3583. That statute
limits the maximum term of supervised release from one to
five years for varying classes of felonies, "[e]xcept as
otherwise provided." S 3583(b). Sanchez-Gonzalez was
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4. In Vazquez, we held that where evidence of drug quantity is
overwhelming and the defendant did not contest it at any stage of the
proceedings, the failure to submit drug quantity to a jury as required by
Apprendi may not constitute plain error. We need not apply here the
plain error analysis in Vazquez because this case does not come within
Apprendi.

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4
convicted of a Class B felony, for which S 3583(b)(1) lists a
maximum supervised release term of five years.5 He thus
argues that the District Court violated Apprendi when it
sentenced him to a ten-year term of supervised release
without a jury determination on drug quantity.
The Court of Appeals for the Fifth Circuit agrees with
Sanchez-Gonzalez’s view that S 3583 imposes an upper
limit on supervised release terms in some cases under
S 841. In United States v. Kelly, 974 F.2d 22, 24-25 (5th
Cir. 1992) (per curiam), the defendant was sentenced under
S 841(b)(1)(C), which, because Kelly did not have a prior
drug felony conviction, required a minimum supervised
release term of three years. At the same time, Kelly’s
offense was a Class C felony which, under S 3583(b)(2),
limited his maximum supervised release term to three
years. The Fifth Circuit, ignoring the "[e]xcept as otherwise
provided" language in S 3583, concluded that S 841(b)(1)(C)
and S 3583(b)(2) together establish three years as a
minimum and maximum term of supervised release. Kelly,
974 F.2d at 24; see also United States v. McWaine, 290
F.3d 269, 277 (5th Cir. 2002) (citing Kelly with approval);
United States v. Garcia, 242 F.3d 593, 599-600 (5th Cir.
2001) (same).
In Kelly, the minimum term imposed underS 841
matched, but did not exceed, the maximum permitted by
S 3583. In a subsequent Fifth Circuit case, United States v.
Cooper, 274 F.3d 230, 243-44 (5th Cir. 2001), however, a
minimum six-year term of supervised release under
S 841(b)(1)(C) unavoidably conflicted with the three-year
maximum term imposed by S 3583(b)(2) for Class C
felonies. The Fifth Circuit, acknowledging thatS 3583
applies only "[e]xcept as otherwise provided," resolved the
conflict in favor of S 841(b)(1)(C) and upheld a five-year
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5. Sanchez-Gonzalez’s felony falls under Class B because he faced a
maximum prison term of twenty-five years or more. See 18 U.S.C.
S 3559; 21 U.S.C. S 841(b)(1)(C). He describes it as a Class C felony, for
which S 3583 permits no more than three years of supervised release,
but the error does not affect our analysis because, either way, the
supervised release term listed in the statute is less than the term he
received.
5
supervised release term.6 274 F.3d at 244. However, Cooper
did not overrule Kelly in cases where S 3583’s maximum
term equals the minimum term under S 841. A second
defendant in Cooper did not have a prior drug felony
conviction, which meant that S 841 imposed only a three-
year minimum term in his case. Following Kelly , the Court
reduced that defendant’s supervised release term to three
years, refusing to give effect to S 3583(b)’s"[e]xcept as

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otherwise provided" proviso. Cooper, 274 F.3d at 244.
As have several other circuit courts, we reject the Fifth
Circuit’s view that S 3583 ever limits the term of supervised
release in cases under S 841. Our reasons are not
complicated. The plain meaning of S 3583 is that it always
yields to other statutes, such as S 841, that specifically
provide terms of supervised release. Any other reading fails
to give full effect to the "[e]xcept as otherwise provided"
carveout in S 3583. Section 841(b) does "otherwise provide"
and therefore trumps the default maximum terms of
supervised release provided in 18 U.S.C. S 3583. See United
States v. Sanchez, 269 F.3d 1250, 1286-88 (11th Cir. 2001)
(en banc); United States v. Combs, 267 F.3d 1167, 1180-81
(10th Cir. 2001); United States v. Barragan, 263 F.3d 919,
925-26 (9th Cir. 2001); United States v. Pratt , 239 F.3d
640, 646 (4th Cir. 2001); United States v. Aguayo-Delgado,
220 F.3d 926, 933 (8th Cir. 2000); United States v. Shorty,
159 F.3d 312, 315-16 n.6 (7th Cir. 1998); United States v.
Abbington, 144 F.3d 1003, 1006 (6th Cir. 1998); United
States v. Eng, 14 F.3d 165, 172-73 (2d Cir. 1994).
The legislative histories of S 841 and S 3583 support our
interpretation. As other circuit courts have pointed out,
Congress added the phrase "[e]xcept as otherwise provided"
to S 3583 at the same time as it wrote the minimum terms
of supervised release into S 841. This simultaneity suggests
that Congress intended to exempt drug offenses from the
otherwise applicable maximum terms of supervised release
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6. We do not understand why Cooper, having decided to permit
S 841(b)(1)(C) to trump S 3583(b)(2) on this issue, proceeded to uphold a
five-year supervised release term when S 841(b)(1)(C) explicitly requires
at least six years of supervised release for defendants with prior felony
drug convictions.
6
imposed by S 3583. See Sanchez, 269 F.3d at 1287; Pratt,
239 F.3d at 648; Eng, 14 F.3d at 172-73.
We conclude that S 3583 imposes no limits on the terms
of supervised release available under S 841. Section
841(b)(1)(C) permits a defendant with a prior drug felony to
receive a sentence of up to thirty years imprisonment and
any amount of supervised release greater than six years.
Sanchez-Gonzalez’s sentence fell within this range.
Therefore, he cannot assert a viable argument under
Apprendi.
B. Remaining Claims
Sanchez-Gonzalez’s remaining grounds for appeal all lack
persuasive merit. We will discuss them only briefly.
1. Character Evidence and Evidence of Impoverishment
Sanchez-Gonzalez argues that the District Court abused

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its discretion by refusing to permit him to introduce
character evidence to rebut the Government’s allegedly
inflammatory opening statement and by refusing to permit
him to introduce evidence of his impoverishment to rebut
the Government’s attempt to paint him as a "king-pin." As
to the character evidence, Sanchez-Gonzalez barely
presents an argument in his brief. He makes a blanket
assertion about inflammatory mischaracterizations in the
Government’s opening statement and then cites two cases.
Moreover, he did not raise any objections about
"inflammatory mischaracterizations" during the
Government’s opening statement at trial and does not seem
to have taken any action to preserve the issue for appeal.
We cannot conclude from this that the Court abused its
discretion.
Likewise, Sanchez-Gonzalez does not explain why he
should have been permitted to introduce evidence of
impoverishment. The District Court has discretion when
determining relevancy and prejudice under Federal Rules of
Evidence 401, 402, and 403, and it determined prior to trial
that any evidence of Sanchez-Gonzalez’s impoverishment
would be irrelevant. Because there does not appear to have
been an abuse of discretion, we affirm the District Court’s
evidentiary ruling.
7
2. Admission of Transcripts
Next, Sanchez-Gonzalez contends that the Court
improperly admitted English language transcripts
translated from taped Spanish language conversations as
evidence over his objections that the transcripts were
inaccurate. We disagree.
The District Court provided Sanchez-Gonzalez an
opportunity to correct any transcript errors, and he made
many corrections. In addition, the Court held a Starks
hearing, see United States v. Starks, 515 F.2d 112, 118-24
(3d Cir. 1975), and ruled that all the Starks requirements
were satisfied and that the corrected translation was
accurate.7 On appeal, Sanchez-Gonzalez asserts that the
Court ruled incorrectly because the Government did not
meet its burden on two of the factors the District Court
considered. Yet he does not provide support for his
argument. The District Court, therefore, did not abuse its
discretion.
3. Jencks Act Materials
Sanchez-Gonzalez’s final argument is that the District
Court erroneously disregarded his request for production of
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7. In Starks we listed seven criteria for the admission of sound
recordings:
(1) That the recording device was capable of takin g the conversation

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now offered in evidence.
(2) That the operator of the device was competent to operate the
device.
(3) That the recording is authentic and correct.
(4) That changes, additions or deletions have not been made in the
recording.
(5) That the recording had been preserved in a man ner that is
shown to the court.
(6) That the speakers are identified.
(7) That the conversation elicited was made volunt arily and in good
faith, without any kind of inducement.
Starks, 515 F.2d at 121 n.11 (citation omitted).
8
Jencks Act materials (prior statements made by
Government witnesses). 18 U.S.C. S 3500. Based on the
record and the briefs, the District Court did not deny
Sanchez-Gonzalez access to Jencks Act material because
Sanchez-Gonzalez did not make a prima facie showing that
such material existed. See United States v. Smith, 984 F.2d
1084, 1086 (10th Cir. 1993). Instead, Sanchez-Gonzalez
merely asserts that the Government tried to hide prior
statements by its witness, Edgar Lozano, but does not
identify in the record any evidence that those statements
exist. On the other hand, the Government points to
testimony by Lozano during which he repeatedly denies
remembering any such statements ever being written down.
Without a prima facie showing, the District Court had no
obligation to pursue this issue further.
* * * * *
Sanchez-Gonzalez has not demonstrated that his
sentence violates Apprendi, that the District Court erred in
its evidentiary rulings, or that the Government might have
concealed Jencks Act materials. Thus, we affirm the
District Court’s judgment.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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