UNITED STATES of America, Appellee, v. Iris Yolanda DAVILA, Appellant, 44 F. App'x 584

OPINION OF THE COURT MCKEE, Circuit Judge. A jury convicted Iris Yolanda Davila of two counts of an indictment charging drug related offenses. On appeal, Davila raises various sentencing issues, and argues for a new trial on the grounds of ineffective assistance of counsel. For the reasons that follow, we will affirm. I. Inasmuch as we write only for the district court and the parties who are familiar with the case, we need not recite the factual background except where helpful to our brief discussion. We exercise plenary review over sentencing issues Davila raises regarding the application of Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2001). We also exercise plenary review over the district court’s

interpretation of the Sentencing Guidelines, however, the court’s factual findings are reviewed for clear error. See United States v. Butch, 256 F.3d 171, 177 (3d Cir.2001). II. One month after Davila was convicted, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Davila argues that under Apprendi, the jury was required to find beyond a reasonable doubt the specific quantity of drugs attributable to her.

Apprendi held that, with the exception of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Apprendi specifically expressed no view of the constitutionality of the Sentencing Guidelines, however, as the Guidelines were not before the Court. See id. at 497 n. 21.

The court in Apprendi also concluded that nothing about the notion of requiring a jury verdict for every element of an offense suggests that a judge may no longer use his or her discretion to adjust a sentence within the appropriate sentencing range for a particular offense. See id. at 481. In interpreting the contours of Appren-di, we have stated that the Guidelines are essentially a codification of a judge’s traditional ability to exercise discretion in sentencing. See United States v. Williams, 235 F.3d 858, 862 (3d Cir.2000); United States v. Mack, 229 F.3d 226, 243 (3d Cir.2000) (Becker, J., concurring).

We have held that, so long as the application of the Guidelines does not increase a sentence beyond the statutory maximum, Ap-prendi is not implicated. See Williams, 235 F.3d at 863, citing United States v. Cepero, 224 F.3d 256, 267 n. 5 (3d Cir. 2000). Davila argues that Apprendi requires that the specific quantity of drugs, here kilograms of heroin and crack cocaine respectively, should have been decided by a jury based on proof beyond a reasonable doubt rather than by the court under a preponderance of the evidence standard.

Following trial, the court held an eviden-tiary hearing and heard testimony regarding the quantity of drugs involved in the conspiracy. At sentencing, the court found that the government had shown by a preponderance of the evidence that the conspiracy involved 14 kilograms of heroin and 14 kilograms of crack cocaine, and that this amount should be attributed to Davila. The court then sentenced Davila to life imprisonment.

However, since life imprisonment was already prescribed as the maximum penalty under the statute, the court’s finding regarding the specific quantity of drugs had no impact on the maximum penalty Davila faced. Therefore, Apprendi is not applicable here. Davila also argues that the court’s finding attributing the 14 kilograms of heroin and crack cocaine to her is not supported by the evidence. Davila argues that the government’s evidence regarding the amount of drugs involved in the conspiracy did not specifically implicate her as the person who sold those drugs.

This court has recognized that it can often be difficult to precisely ascertain the amount of drugs involved in large-scale conspiracies. So long as calculations are not based upon “mere speculation,” we have held that “some degree of estimation must be permitted, for the government usually cannot seize and measure all the drugs that flow through a large drug distribution conspiracy.” United States v. Collado, 975 F.2d 985, 998 (3d Cir.1992).

In addition, where a conspiracy is proven, the district court may take into consideration all reasonably foreseeable acts of co-conspirators in furtherance of the conspiracy in assessing a defendant’s culpability. See U.S.S.G. § 1B1.3(a)(1)(B) (2001). Angel Prieto, a member of the drug ring, testified on behalf of the government at trial. Prieto testified that during the relevant time period, Davila and her co-conspirators Axel Santos-Cruz, would receive quantities of kilogram to 1 kilogram of both heroin and cocaine once or twice a week.

Prieto further testified that Davila would then convert the cocaine into crack cocaine, and sell it. Prieto’s testimony was corroborated by the testimony of undercover Trooper Kelly Cruz and Trooper Jay Lownsbery. Prieto’s testimony was also corroborated by 45 transcripts of recorded telephone calls. This evidence supports the finding that throughout the course of the conspiracy, Davila and her co-conspirator sold 14 to 56 kilograms of both heroin and crack cocaine. The district court attributed the lower figure of 14 kilograms to Davila for each of the two drugs at sentencing.

Thus, even if Davila did not personally sell that entire amount, the district court may still take into consideration for sentencing purposes the acts of her co-conspirator that were taken in furtherance of the conspiracy. We therefore can not say that attributing 14 kilograms of heroin and crack cocaine to Davila was clearly erroneous. Davila further argues that the jury, rather than the court, was required under Apprendi to determine whether the conspiracy operated within 1000 feet of a school, in violation of 21 U.S.C. § 860, and whether she had a leadership role in the conspiracy.

Under § IB 1.3 of the Sentencing Guidelines, a court may take into consideration a defendant’s “relevant conduct” in adjusting the sentence. See U.S.S.G. § 1B1.3. Such relevant conduct can include a violation of a particular statute, even where there has been no conviction for violating that statute. See id. § 1B1.3 n.6. The court declined to impose a 2-level enhancement for operating a drug house within 1000 feet of a school in violation of 21 U.S.C. § 860, as Davila was never indicted or convicted for that offense.

Later at sentencing, the court told Davila that the fact that the distribution took place near a school was relevant to the court’s consideration of an appropriate sentence. R. at 1223. The court also assessed a 4-level increase for being an organizer or leader of a criminal activity involving five or more participants. The court then sentenced Davila to life imprisonment; the upper end of the statutory and Guidelines maximum. The evidence clearly established that the drug house was less than 1000 feet from the school.

There was testimony at the evidentiary hearing by two witnesses, one of whom was a licensed civil engineer, that the drug house was exactly 848.6 feet from the school, and a total of five maps were admitted into evidence showing the location of the drug house and the school. Under the Guidelines, it is of no moment that Davila was not convicted under 21 U.S.C. § 860. It is still within a judge’s discretion to consider such conduct even though it was not included in the indictment. Moreover, as noted above, the statutory maximum under Count I is life imprisonment.

Therefore, the adjustments the court made for operating a drug house within 1000 feet of a school, and for Davila’s leadership role did not increase Davila’s sentence beyond the statutory maximum. Consequently, Apprendi is not implicated. Next, Davila argues that the district court erred by not reducing Davila’s sentence under § 5K2.13 of the Guidelines due to her “nerves” condition. Davila argues that her unspecified “mental infirmities” are severe enough to support a sentence reduction.

If the district court’s decision not to make a downward departure was based upon a belief that it did not have the authority to do so, then we have jurisdiction to determine if the district court’s understanding of the law was correct. See United States v. Mummert, 34 F.3d 201, 205 (3d Cir.1994). However, if the district court’s decision was based upon its exercise of discretion, we lack jurisdiction to entertain the argument. See id.; United States v. Powell, 269 F.3d 175, 179 (3d Cir.2001). In imposing a life sentence, the court explicitly stated that it was taking many factors into consideration.

Among those factors the court listed, was “the nature of the offense, the defendant’s history, characteristics, educational, vocational and corrective needs, as well as her needs for mental health treatment and her mental condition.” R. at 1223 (emphasis added). The court also considered, “the need for deterrents and protection of the public” as well as “the quantity of drugs ... and [that] processing too place near a school.” Id. The court, therefore, took into consideration Davila’s “nerves” condition, but ultimately decided that other more compelling factors weighed in favor of a life sentence.

The district court exercised its discretion with respect to evaluating the propriety of granting a downward departure, and consequently we do not have jurisdiction to second guess its decision. Lastly, Davila claims that she was deprived of effective assistance of counsel. Davila cites to fourteen examples where she feels her trial counsel erred. However, a claim of ineffective assistance of counsel will generally not be entertained by this court on direct appeal. Rather, such a claim must be raised in a collateral proceeding under 28 U.S.C. § 2255. See United States v.

Rieger, 942 F.2d 230, 235-36 (3d Cir.1991); 28 U.S.C. § 2255 (2002). A narrow exception to this rule applies where the record is sufficient to allow an appellate court to make a determination on the ineffective assistance claim. See United States v. Headley, 923 F.2d 1079, 1082 (3d Cir.1991). That is not this case here, however.

Most of the fourteen examples Davila cites are variations of issues already argued in her direct appeal, i.e. trial counsel’s failure to argue for lesser culpability due to Davila’s “mental infirmities.” Others relate to possible tactical decisions, i.e. trial counsel’s failure to introduce evidence explaining why Davila was collecting Social Security benefits. This record, however, is not sufficient to resolve Davila’s ineffective assistance of counsel claim. If Davila wishes to pursue the ineffective assistance claim, she must raise it under 28 U.S.C. § 2255.

Accordingly, for all the reasons set forth herein, we will affirm the convictions and judgment of sentence. . Davila was convicted along with her co-conspirator, Axel Santos-Cruz, on Counts I and II of an eight count indictment. Count I charged that Davila conspired to distribute, and to possess with intent to distribute, more than 50 grams of crack base and more than 1000 grams of heroin from September 1998 to on or about March 16, 1999, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Count II, charged Davila with possession with intent to distribute heroin on March 16, 1999, in violation of 21 U.S.C. § 841(a)(1). . Davila attempts to argue that the government did not establish that Prieto sold drugs for Davila because the government, at one point during Prieto’s examination, asked Prieto if he sold drugs for either Davila or her co-conspirator Santos-Cruz, rather than for Davila and Santos-Cruz. R. at 799. We do not find this significant fact that the government alleged an on-going conspiracy between Davila and Santos-Cruz.

Further, Prieto more than adequately established in other parts of his testimony that the conspiracy involved Davila, and that he sold drugs for Davila. R. at 776, 784, 788, 790. . Davila also argues that there was no finding by either the jury or the court that she was involved in the conspiracy prior to February 28, 1999.

This argument is belied by the very fact that the jury convicted Davila of Count I of the indictment, which alleges that Davila conspired from “at least as early as September 1998 to on or about March 16, 1999” to distribute and to possess with intent to distribute more than 1000 grams of heroin and more 50 grams of crack cocaine. R. at 15-16 (emphasis added). The jury’s verdict was amply supported by the evidence. As noted above, Prieto testified as to the duration and quantity of drugs.

That testimony was supported by the testimony of undercover Trooper Cruz and Trooper Lownsbery, and the monitored telephone calls. . Davila clains she has been suffering from a condition she terms ("nerves”) since the death of her infant son. However, neither the Pre-Sentence Report nor Davila provide a more detailed explanation of this condition. . The government argues that Davila did not make a specific request at sentencing for a downward departure, and therefore, plain error review applies.

The record shows, however, that Davila's trial counsel did ask the court to consider "my client’s mental health and the disadvantage mental health that she ha[s]" in determining the sentence. R at 1204. As "we will not require recitation of magic words” for a downward departure, we find counsel’s request here sufficient. United States v. Brannan, 74 F.3d 448, 452 (3d Cir. 1996). . Davila’s counsel also argues that the court should have sua sponte raised the issued of Davila’s "mental infirmities” in the form of a competency hearing prior to trial.

However, it goes without saying that insanity is an affirmative defense that must be raised by the defendant, not by the court. See Fed. R. Crim. P. 12.2.