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
Before: Sloviter, Becker, and Stapleton, Circuit
The opinion of the court was delivered by: Sloviter, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) October 4, 2004
Appellant Cosme Ordaz appeals following his conviction by a jury and sentence imposed by the District Court.*fn1 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).
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).*fn2
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.
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).*fn3
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).*fn4 Notably, the jury was not asked to render 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 ...