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United States v. Dahda

United States District Court, D. Kansas

December 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LOS ROVELL DAHDA, Defendant.

          SENTENCING MEMORANDUM

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.

         A jury found defendant guilty on multiple counts of the Second Superseding Indictment (Doc. #462) including Count 1, which charged him with conspiracy to manufacture marijuana, to possess marijuana with intent to distribute it, to distribute marijuana and to maintain a drug-involved premises. See Verdict (Doc. #1433) filed July 23, 2014 at 1. As to the agreement to manufacture marijuana, to possess marijuana with intent to distribute it and to distribute marijuana, the jury found that “the overall scope of the agreement involved more than 1, 000 kilograms of marijuana.” Instructions To The Jury (Doc. #1430) filed July 23, 2014, No. 19. On September 30, 2015, the Court sentenced defendant to 189 months in prison and imposed a fine of $16, 985, 250. See Judgment In A Criminal Case (Doc. #2076). On April 4, 2017, the Tenth Circuit affirmed defendant's convictions and the sentence of imprisonment, but reversed and remanded so that this Court could reconsider the amount of the fine. United States v. Los Dahda, 853 F.3d 1101, 1118 (10th Cir. 2017), aff'd, 138 S.Ct. 1491 (2018). Although the Tenth Circuit mandate was limited to the amount of the fine, this Court expanded the scope of resentencing to include recalculation of the drug quantity attributable to Los Dahda in light of the Tenth Circuit's ruling in his brother's case, United States v. Roosevelt Dahda, 852 F.3d 1282 (10th Cir. 2017), aff'd, 138 S.Ct. 1491 (2018). See Memorandum And Order (Doc. #2620) filed May 22, 2019.

         On December 12, 2019, the Court resentenced defendant to a controlling term of 135 months in prison and three years of supervised release. This memorandum sets forth the legal basis for the Court's determination at sentencing that as to Count 1, the statutory range set forth in 21 U.S.C. § 841(b)(1)(C) applies.

         On Count 1, defendant argues that because a jury did not determine that a specific drug quantity was reasonably foreseeable to him, the Court should apply the default provision of 21 U.S.C. § 841(b)(1)(D), which includes a statutory range of zero to five years in prison. On direct appeal, the Tenth Circuit rejected this same argument as follows:

Los was found guilty on count 1, which charged a conspiracy involving 1, 000 kilograms or more of marijuana. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), 846, 856. For this count, Los obtained a sentence of 189 months' imprisonment. He contends that this sentence violates the Constitution because the jury did not specifically find the marijuana quantity involved in the conspiracy.
“We review the legality of an appellant's sentence de novo.” United States v. Jones, 235 F.3d 1231, 1235 (10th Cir. 2000).
The penalties for violating § 841(a) appear in subsection (b). Subsection (b)(1)(D) provides a maximum sentence of 5 years' imprisonment if the total marijuana weight was less than 50 kilograms. 21 U.S.C. § 841 (b)(1)(D). Subsection (b)(1)(C) provides a maximum sentence of 20 years' imprisonment when no specific amount is charged. And subsections (b)(1)(A) and (B) provide higher maximum sentences depending on the type and quantity of the substance; in cases involving 1, 000 kilograms or more of marijuana, subsection (b)(1)(A) imposes a mandatory minimum sentence of 10 years and a maximum sentence of life imprisonment. 21 U.S.C. § 841(b)(1)(A)(vii).
Although Los was found guilty of participating in a conspiracy involving 1, 000 kilograms or more of marijuana, the government agreed to waive the 10-year mandatory minimum under § 841(b)(1)(A). Thus, Los was sentenced under § 841(b)(1)(C).
But he argues that he should have been subject to the 5-year maximum under § 841(b)(1)(D) because the verdict form did not require a specific determination of the marijuana quantity. We reject this argument because the marijuana quantity, 1, 000 kilograms, was an element of the charged conspiracy.
Los correctly argues that to increase his maximum sentence based on drug quantity, the quantity of drugs had to be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Jones, 235 F.3d 1231, 1233, 1236 (10th Cir. 2000). Thus, if the jury had not found a marijuana quantity beyond a reasonable doubt, the Constitution would have limited the maximum sentence to five years under § 841(b)(1)(D). United States v. Cernobyl, 255 F.3d 1215, 1220 (10th Cir. 2001).
But no constitutional violation took place. On count 1, the jury found that the conspiracy had involved 1, 000 kilograms or more of marijuana. Though the quantity was not addressed on the verdict form, the quantity was charged in the indictment and included in Instruction 19: “As to each defendant, to carry its burden of proof on Count 1, the government must prove beyond a reasonable doubt each of the following elements: . . . the overall scope of the agreement involved more than 1, 000 kilograms of marijuana.” R. vol. 1 at 401. In turn, the verdict form directed the jury to make its findings on count 1 “[u]nder instructions 19-21.” Id. at 433.
“We presume the jury follows its instructions” in the absence of an overwhelming probability to the contrary. United States v. Rogers, 556 F.3d 1130, 1141 (10th Cir. 2009); United States v. Herron, 432 F.3d 1127, 1135 (10th Cir. 2005). There is no reason to think that the jury disregarded its instructions, and we see no reason to reject the presumption here. Thus, we reject Los's challenge to the sentence on count one. See United States v. Singh, 532 F.3d 1053 (9th Cir. 2008) (holding that no Apprendi violation took place when the burden of proof on a fact, which enhanced the statutory maximum, was contained in a jury instruction but not in the verdict form); United States v. O'Neel, 362 F.3d 1310, 1314 (11th Cir. 2004) (same), vacated sub nom., Sapp v. United States, 543 U.S. 1107, 125 S.Ct. 1114, 160 L.Ed.2d 1027 (2005), reinstated, 154 Fed.Appx. 161 (11th Cir. 2005).

Los Dahda, 853 F.3d at 1116-17.

         As to defendant's brother, Roosevelt Dahda, the Tenth ...


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