In October 2007, the defendant,
Ronald Terry, pled guilty to conspiring to distribute
controlled substances and was sentenced to more than
twenty years in prison. In his plea agreement, Terry
reserved the right to appeal adverse decisions on his
pretrial motions, which included the denial of a motion
to suppress evidence. Terry appeals that ruling, and
we now affirm.
I. BACKGROUND
The government began investigating the drug trafficking
activities of Mark Cubie, one of Terry’s co-defendants,
in late 2004. As part of the investigation, authorities
monitored Cubie’s telephone communications using
“pen registers” and “trap and trace devices.” A pen
register records the telephone numbers of outgoing
calls made from the monitored phone, while a trap and
trace device records the telephone numbers of those
calling the phone. Neither method records conversations;
both compile only numerical data.
In early April 2005, investigators noted a significant
change in calling patterns on Cubie’s telephone, which
was registered with a number ending in 1716. This
change indicated that the phone was no longer in
Cubie’s possession. The government subsequently identified
Cubie’s new telephone, which ended in 5638. As
we discuss below in the context of Terry’s suppression
hearing, the way in which this identification occurred is
at the center of the present dispute.
On April 12, 2005, authorities requested authorization
to monitor 5638 with a pen register and a trap and trace
device. On the same day, acting pursuant to 18 U.S.C.
§ 2703(d), they also obtained 5638’s past phone records.
Using data gathered from these sources, investigators
later received permission to place Title III wiretaps on
the telephones of Cubie and Orlandes Nicksion, another
of Terry’s co-defendants. Evidence compiled from
these wiretapped conversations ultimately led to Terry’s
indictment.
On September 18, 2007, a federal grand jury in the
Eastern District of Wisconsin returned a third superseding
indictment against six men, including Terry,
Cubie, and Nicksion.1 Three of the indictment’s nine
counts, all involving various drug and related firearm
offenses, named Terry as a defendant.
Terry filed a motion to suppress on October 20, 2006.
Terry presented two arguments: first, that law enforcement
illegally obtained information that it then used to
identify and monitor Cubie’s 5638 telephone, thereby
tainting any evidence derived therefrom, see 18 U.S.C.
§§ 2515, 2518; and second, that the government knowingly
failed to disclose the illegality of these intercepts,
in violation of Franks v. Delaware, 438 U.S. 154 (1978).2
Both claims hinge on the legality of the government’s
investigation into Cubie’s new telephone number.
A federal magistrate judge held two hearings on Terry’s
motion. At the first, held December 6, 2006, the government
presented a single witness, Dan Thompson, a detective
with the Milwaukee Police Department. Detective
Thompson detailed the process he followed to obtain
court orders for the pen register, trap and trace device,
and § 2703(d) report on 5638. He then discussed
using the information gleaned from these sources to
acquire authorization for the Title III wiretap on that
same phone. According to Thompson, the government
used two primary clues to identify 5638: (1) a confidential
informant’s call to 1716; and (2) a comparison of 1716’s
old calling patterns with the past and current calling
patterns of phones associated with Nicksion and Terry.
First, Thompson stated that on April 4, a confidential
informant, acting at the behest of investigators, telephoned
1716 and asked to speak with Cubie. A female
answered the call and told the informant that the phone
was no longer Cubie’s. According to Thompson, 1716’s
pen register indicated an outgoing call to 5638 “[a] couple
of hours after [the confidential informant’s call].” The
timing of this call from 1716 to 5638 was later questioned
during the second suppression hearing.
Second, Thompson testified that he had analyzed call
information taken from preexisting pen registers and
trap and trace devices on phones belonging to Nicksion
and Terry. Thompson stated that Nicksion and Terry
were placing calls to and receiving calls from 5638 in
frequencies that were similar to their previous calling
patterns with 1716, while calls to and from 1716 had
stopped altogether.
In his motion and at the hearing, Terry sought to discredit
Thompson. Terry targeted one attack at a supplemental
report, prepared by Thompson, that documented
the calling patterns of Cubie’s new 5638 number. Thompson’s
report contained two date/time stamps. The first
stamp, which appears on the report’s first page, was
entered manually by the person creating the report. The
second stamp, located on the report’s second page, was
automatically generated by the computer program.
The manually entered date/time stamp was April 11 at
4:00 p.m. The automatically generated stamp was a day
later, on April 12 at 3:18 p.m.
From this evidence, it was not immediately clear
whether the report was created on April 11 or April 12, a
fact that Terry argued was of significance. According
to Terry, if Thompson created the report on April 11,
it would support Terry’s contention that the government
actually possessed 5638’s call data before receiving
judicial approval to obtain such data on April 12. At the
hearing, Thompson explained the discrepancy as an
inadvertent mistake—he had simply erred and entered
the incorrect date.
On cross-examination, Terry also probed Thompson’s
statements about the use of data collected from Terry’s
telephone to help identify 5638. According to Terry,
authorities did not receive permission to monitor his
phone until May 2005, several weeks after the April 12
court authorization for 5638. Thompson, however, stood
firm in his claim that authorities were legally monitoring
Terry’s call data prior to April 12 and that he had used
such data to identify 5638. At the conclusion of the
hearing, Terry’s counsel requested documentation
proving that the government was lawfully monitoring
Terry’s telephone before April 12.
The government, however, was unable to provide
such proof. Indeed, it discovered that it had not been
monitoring Terry’s phone at that time. Immediately
following the first hearing, the government filed a
motion to reopen, accompanied by an affidavit
from Detective Thompson confessing errors of fact in
his testimony. According to Thompson, he testified
mistakenly that he had relied on pen/trap data gathered
from Terry’s phone to identify 5638 as Cubie’s new telephone
number. After the hearing, Thompson learned that
no orders authorizing the collection of such data from
Terry’s two telephones were issued until May 3, 2005,
meaning that he could not possibly have used Terry’s
phone data to identify Cubie’s new number the month
before. In his affidavit, Thompson reaffirmed the remainder
of his testimony from the first hearing, particularly
those statements related to the confidential informant’s
telephone call to 1716 and the monitoring of Nicksion’s
phone activities. It was this information, Thompson
stated, that allowed him to connect 5638 with Cubie.
The court granted the motion to reopen and held a
second hearing on Terry’s motion to suppress on
December 20, 2006. Thompson testified again, explaining
his mistake during the previous hearing. An additional
discrepancy emerged at the second hearing regarding
the timing of the phone call from 1716 to 5638. At the
first hearing, Thompson testified that 1716 had called
5638 after receiving the informant’s call on April 5. Phone
data, however, revealed that 1716’s new user had called
5638 on March 31, six days before the April 5 phone call
from the confidential informant. Thompson explained
that he had again been mistaken—that he had learned of
the call between 1716 and 5638 after the informant’s call
to 1716, not that the call had actually occurred subsequent
to the informant’s call.
Thompson’s reliance on Nicksion’s phone data
remained unchanged. In early April, Nicksion had
stopped communicating with 1716 and begun calling 5638
at a frequency similar to his previous calls to 1716.
Near the conclusion of his testimony, Thompson said:
“Right now I’d have to say Orlandes Nicksion’s pen
was the key to us identifying that phone number . . . .”
As Terry pointed out, Thompson’s new focus on
Nicksion’s number alone contradicted a statement the
government made in its § 2703(d) application, filed
on April 12. There, as one of its grounds for issuing the
§ 2703(d) order, the government offered “[a]n analysis of
the telephone records pertaining to the most commonly
called numbers to [1716] over a two month period” (emphasis
added). If, as Thompson contends, he had relied on
analysis of only Nicksion’s number, the use of the
plural “numbers” in the § 2703(d) application would be
at odds with Thompson’s testimony.
In his recommendation to the district judge, the magistrate
judge found that Thompson’s original misstatements
were mistakes made in good faith—not, as Terry asserted,
evidence of governmental indiscretion. The magistrate
judge determined that Thompson’s testimony, including
his explanations for the aforementioned discrepancies,
was credible and recommended to the district court that
it deny Terry’s motion to suppress. The district judge
adopted the recommendation in an order dated
August 21, 2007.
Terry eventually pled guilty to the charge contained in
Count One—conspiring to distribute more than five
kilograms of cocaine, fifty grams of crack, and an unspecified
quantity of marijuana in violation of 21 U.S.C.
§ 841(a)(1)—and was sentenced to 260 months in prison,
to be followed by five years of supervised release. In
exchange for his plea, the government dismissed the
remaining two counts against Terry. It also allowed him
to reserve the right to appeal issues raised in any
pretrial motions, which included his motion to suppress.
Terry now appeals the district court’s decision
on this motion.
II. ANALYSIS
In essence, Terry asks us to overturn the finding that
Detective Thompson was a credible witness. To convince
us to take such a drastic step, Terry must traverse a
difficult path.
When a credibility finding is based upon testimony
presented during a suppression hearing, we will reverse
such a determination only when it is clearly erroneous.
United States v. Huebner, 356 F.3d 807, 812 (7th Cir. 2004).
Indeed, we provide “special deference” to credibility
findings, based on the lower court’s superior position
to evaluate a witness. United States v. Whited, 539 F.3d 693,
697 (7th Cir. 2008); see also Huebner, 356 F.3d at 812 (commenting
on the trial judge’s ability “to observe the
verbal and nonverbal behavior of the witnesses . . . in
contrast with merely looking at the cold pages of an
appellate record” (emphasis and quotations omitted));
United States v. Mancillas, 183 F.3d 682, 710 (7th Cir. 1999)
(“[W]e do not second-guess the . . . judge’s credibility
determinations because he or she has had the best opportunity
to observe . . . the subject’s . . . facial expressions,
attitudes, tone of voice, eye contact, posture and body
movements . . . .” (alterations in original) (quotations
omitted)). We will credit testimony found credible by
the court below “ ‘unless it is contrary to the laws of
nature, or is so inconsistent or improbable on its face
that no reasonable factfinder could accept it.’ ” Mancillas,
183 F.3d at 710 (quoting United States v. Yusuff, 96 F.3d
982, 986 (7th Cir. 1996)).
As both the magistrate judge and the district judge
acknowledged, there were a number of discrepancies
surrounding Detective Thompson’s testimony and the
documentary evidence presented in support thereof.
First, there was the misdated report, which, if it had
been created on the date entered by Thompson, would
suggest that Thompson had early access to unauthorized
information; this error Thompson chalked up as “a typo.”
Second, he said that the new user of 1716 placed a call
to 5638 within a “couple of hours” of receiving a call
from a government informant; when confronted with
the phone records, however, he admitted that 1716
had telephoned 5638 several days before the informant’s
call. Third, Thompson originally stated that Terry’s
phone data provided a link between 5638 and Cubie,
only to recant the statement after he realized that the
government did not begin monitoring Terry’s phone until
three weeks after it identified the 5638 number. And
fourth, we learned of the § 2703(d) application, which
discussed the analysis of data gleaned from the phones
associated with 1716’s “frequently called numbers,”
although Thompson eventually testified that he relied
on the calling pattern of only one number, Nicksion’s,
to identify 5638.
These facts are indicative of less-than-exemplary detective
work and are certainly unfavorable to the government.
Detective Thompson’s missteps in his written
documentation and testimony were far cries from the
accuracy that we expect from those empowered with
restricting the freedom of our citizens. Before a person
is sent to prison for any length of time, let alone twenty
years of his life, he is correct to demand accountability
from those who are responsible for sending him there.
As we know, however, perfection is impossible. So although
Thompson’s several mistakes might be regrettable,
they were, as the magistrate and district judges rightfully
concluded, nothing more than mistakes.
As we have said: “ ‘[T]estimony is not incredible as a
matter of law . . . only because the witness may have
been impeached by certain discrepancies in his story, by
prior inconsistent statements, or by the existence of a
motive to provide evidence favorable to the government.’
” Huebner, 356 F.3d at 813 (second alteration in
original) (quoting United States v. Scott, 145 F.3d 878,
883 (7th Cir. 1998)). Each of these circumstances existed,
to one degree or another, in this case. Yet after a
thorough review of the relevant facts, the magistrate
judge found Terry’s arguments unavailing. The facts
were only that the government had committed a series
of minor errors, not that it had acted illegally.
Staring at the pages of a cold record, we are in no
position to reassess the credibility of the sole witness
who appeared at the suppression hearing. That job belonged
to the magistrate judge. The district judge
properly deferred to his judgment; we, in turn, will
defer to them both. This is not, as Terry contends, a
“remarkable case” warranting reversal. There is nothing
in the record that compels the conclusion that the government
acted illegally in identifying Cubie’s 5638 number.
The district court’s decision was not clearly erroneous
and must stand.
III. CONCLUSION
We AFFIRM the decision of the district court to deny
Terry’s motion to suppress.
Chicago Criminal Lawyer - Robert J Callahan
Thursday, July 30, 2009
U.S. vs. Knox
Defendants Reginald Davis,
Anthony Knox, and Armean Knox1 made a deal to buy
fourteen semi-automatic handguns for the bargain price
of 2 1/4 ounces of crack cocaine. As their unfortunate
luck would have it, the seller was an undercover agent.
After being arrested on various drugs and weapons
charges, each defendant pleaded guilty to conspiracy to
distribute more than 50 grams of crack. On appeal, the
defendants raise several challenges to the reasonableness
of their sentences, including that Kimbrough v.
United States, 128 S. Ct. 558 (2007), entitles them to
resentencing.
I. Background
A. Facts
On three separate occasions between June and September
2004, Davis sold between one-quarter and one-half
ounces of crack cocaine to an undercover agent with the
Bureau of Alcohol, Tobacco, and Firearms (“ATF”). During
each of these meetings, Davis expressed an interest in
purchasing handguns from the agent. At the third
meeting, Davis introduced the agent to Anthony, and the
two defendants negotiated a deal to pay $2000 cash for
one .45-caliber and thirteen .38-caliber guns. Armean
also met the agent at this meeting when he delivered the
crack for purchase.
On September 9, 2004, Davis and Armean met with the
agent again to discuss the guns purchase, and the agent
suggested that the defendants pay for the guns with 2
1/4 ounces of crack instead of $2000 cash. Davis and
Armean readily agreed to this payment term, since,
according to the defendants, that quantity of crack was
worth only about $1000 to $1400. Davis indicated that he
could easily supply the requested 2 1/4 ounces, telling the
agent that “if you want two and a split that’s nothing.”
During this meeting, Davis called Anthony, who also
agreed to the change in payment.
On September 16, 2004, Anthony and Armean delivered
61.5 grams2 of crack to the agent in exchange for the
fourteen guns. ATF agents arrested Anthony and
Armean on site immediately after they received the
guns, and Davis was later arrested in December 2004.
The government obtained an indictment charging
Davis, Anthony, and Armean with one count of conspiracy
to possess with intent to distribute and to distribute
more than 50 grams of crack cocaine, in violation
of 21 U.S.C. § 846, and several counts of intentionally
distributing crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Additionally, the indictment charged Anthony
and Armean each with one count of being felons in possession
of firearms, in violation of 18 U.S.C. § 922(g)(1). The
indictment also charged Davis with conspiring with
another individual to possess with intent to distribute
and to distribute more than five grams of crack cocaine,
but the government later dismissed the charges against
that individual. The defendants pleaded guilty without
plea agreements. Each defendant pleaded guilty to the
conspiracy to distribute more than 50 grams of crack
cocaine, and Anthony and Armean pleaded guilty to
the firearms possession counts. The government subse
quently dismissed all of the distribution counts against
the defendants and the other conspiracy count against
Davis.
B. Sentencing Proceedings
The defendants were sentenced between December 2006
and March 2007. Under the Sentencing Guidelines, Davis
qualified as a career offender based on three of his prior
felony drug convictions, see U.S.S.G. § 4B1.1(a), resulting
in a criminal history category of VI and an offense level
of 37, see id. § 4B1.1(b)(A) (applying an offense level
of 37 for offenses with statutory maximums of life imprisonment);
21 U.S.C. § 841(b)(1)(A)(iii) (imposing a
maximum sentence of life imprisonment for drug
offenses involving 50 grams or more of crack). After a
three-level reduction for acceptance of responsibility,
see U.S.S.G. § 3E1.1, Davis’ total offense level was 34,
yielding an advisory guidelines sentencing range of 262-
327 months. This sentencing range was higher than what
Davis would have received had he been sentenced as a
non-career offender under the drug-offense guideline,
§ 2D1.1; although Davis’ criminal history category was
VI even before the application of § 4B1.1, his offense level
was higher under § 4B1.1.
At his sentencing hearing, Davis asked for a belowguidelines
sentence based on the Guidelines’ 100:1 disparity
between sentences for crack- and powder-cocaine
offenses, the ATF agent’s use of sentencing entrapment
and manipulation, and Davis’ cooperation with the
government. Davis also presented substantial evidence
of his unstable childhood and his family’s history of
substance abuse, as well as expert testimony of Davis’
mental illness.
The district court dismissed Davis’ argument based on
the severity of the crack/powder disparity, citing thenbinding
circuit precedent precluding the court from
relying on that disparity as a basis for imposing a sentence
below the guidelines range. See United States v. Miller,
450 F.3d 270, 275 (7th Cir. 2006), abrogated by Kimbrough
v. United States, 128 S. Ct. 558 (2007). The court also
rejected Davis’ claims of sentencing entrapment, sentencing
manipulation, and cooperation with the government.
The court did, however, give substantial credit
to Davis’ evidence of his difficult childhood and history
of mental illness. Concluding that these factors made it
reasonable to deviate from the Guidelines, the court gave
Davis a below-guidelines sentence of 220 months.
Anthony, like Davis, qualified as a career offender
under § 4B1.1, resulting in a criminal history category of VI
and an offense level of 37. After a three-level reduction
under § 3E1.1 for acceptance of responsibility, Anthony’s
total offense level was 34, yielding an advisory guidelines
sentencing range of 262-327 months. As in Davis’
case, this sentencing range was higher than what Anthony
would have received under § 2D1.1 as a non-career offender;
although Anthony’s criminal history category
was VI even before the application of § 4B1.1, his
offense level was higher under § 4B1.1.
At the sentencing hearing, Anthony argued for a belowguidelines
sentence based on the severity of the Guidelines’
100:1 crack/powder disparity and the ATF agent’s
use of sentencing manipulation. The district court did not
accept these arguments and imposed a minimum-guidelines
sentence of 262 months.
Armean, unlike his co-defendants, did not qualify as a
career offender; his sentence for the drug offense was
determined by § 2D1.1. Because the guns purchase involved
a quantity of crack between 50 and 150 grams,
Armean’s base offense level was 32.4 After a two-level
enhancement for the possession of a dangerous weapon,
see U.S.S.G. § 2D1.1(b)(1), and a three-level reduction
for acceptance of responsibility under § 3E1.1, Armean’s
total offense level was 31. His criminal history category
was IV, yielding an advisory guidelines sentencing
range of 151-188 months. The district court imposed a
guidelines sentence of 165 months.
C. Arguments on Appeal
On appeal, all three defendants argue that the district
court should have considered the Guidelines’
crack/powder disparity as a basis for reducing their
sentences. They claim that the Supreme Court’s decision
in Kimbrough v. United States, 128 S. Ct. 558, 564 (2007),
which held that the disparity is advisory and therefore
within a district court’s discretion to consider, entitles
them to resentencing. Davis and Anthony also argue that
the district court failed to sufficiently address their sentencing
entrapment and manipulation claims. Finally,
Davis raises several additional challenges to the reasonableness
of his sentence, which we describe in greater
detail below.
II. Analysis
We review the district court’s sentencing decisions for
an abuse of discretion. Gall v. United States, 128 S. Ct. 586,
597 (2007); United States v. Clanton, 538 F.3d 652, 659
(7th Cir. 2008). After ensuring that the district court
committed no procedural error such as failing to
properly calculate the guidelines range or consider the
sentencing factors of 18 U.S.C. § 3553(a), we examine the
substantive reasonableness of the sentence. Gall, 128 S. Ct.
at 597; Clanton, 538 F.3d at 659. In determining whether
a guidelines sentence is reasonable, the district court
should consider all of the § 3553(a) factors and “make
an individualized assessment based on the facts presented.”
Gall, 128 S. Ct. at 597.
A. The Impact of Kimbrough and the Crack/Powder
Disparity on Career Offenders
1. The Effect of Kimbrough on Davis’ and
Anthony’s Sentences
After the defendants in this case were sentenced,
the Supreme Court held in Kimbrough v. United States,
128 S. Ct. 558, 564 (2007), that district courts may consider
the crack/powder disparity embedded in the drugoffense
guideline, § 2D1.1, as a basis for choosing a belowguidelines
sentence. The Court explained that a district
court may generally consider policy disagreements
with the advisory Guidelines, provided that the court
does not disregard statutes such as mandatory minimums
and maximums. See id. at 570-71. Since the Guidelines’
crack/powder disparity does not result from a
congressional mandate, see id. at 571-72, “it would not
be an abuse of discretion for a district court to conclude”
that the disparity “yields a sentence ‘greater than necessary’
to achieve § 3553(a)’s purposes . . . .” Id. at 575.
Before Kimbrough, our circuit precedent prevented
district courts from considering the crack/powder
disparity as a basis for choosing a below-guidelines
sentence. See United States v. Miller, 450 F.3d 270, 274-75
(7th Cir. 2006). To correct the prejudicial effects of Miller,
we have established remand procedures for crack
offenders sentenced prior to Kimbrough. Offenders who
did not raise a challenge to the crack/powder disparity
at sentencing are entitled to a limited remand,
allowing the district court to indicate whether it would
have selected a different sentence had it known of its
discretion under Kimbrough. United States v. Taylor, 520
F.3d 746, 747-49 (7th Cir. 2008). Offenders who did challenge
the disparity at sentencing are entitled to a full
remand and resentencing. Clanton, 538 F.3d at 659.
We have previously granted these remands only to
offenders sentenced under the drug-offense guideline,
§ 2D1.1, as opposed to the career offender guideline,
§ 4B1.1. See id. at 659-60. Although career offenders are
subject to a 100:1 crack/powder sentencing disparity,
that disparity does not originate in the advisory drugoffense
guideline at issue in Kimbrough. Instead, it is the
operation of mandatory statutes that subjects career
offenders to the policy of harsher sentences for crackcocaine
offenses. Congress has directed that career offenders
convicted of offenses “described in” certain,
enumerated statutes, including 21 U.S.C. § 841, be sentenced
“at or near the maximum term authorized” for
the offense. 28 U.S.C. § 994(h)(1)(B). To implement this
directive, the career offender guideline prescribes base
offense levels that track the statutory maximums of the
offense of conviction. U.S.S.G. § 4B1.1(b). For convictions
of drug offenses under 21 U.S.C. § 841, the
applicable statutory maximums treat a given quantity of
crack cocaine the same as 100 times that quantity of
powder cocaine for sentencing purposes. See 21 U.S.C.
§ 841(b)(1)(A)(ii)-(iii) (imposing a maximum sentence of
life imprisonment for drug offenses involving both 50
grams of crack and 5 kg of powder cocaine). It is this
statutory penalty provision, incorporated into the Guidelines
pursuant to another statute, 28 U.S.C. § 994(h),
wherein the 100:1 crack/powder disparity affecting
career offenders lies.
Relying on the statutory origin of the crack/powder
disparity embedded in § 4B1.1, we held in United States
v. Harris, 536 F.3d 798, 813 (7th Cir. 2008), that Kimbrough
had no effect on a career offender’s sentence. We
reasoned that, although a sentencing disparity might
occur under § 4B1.1 based on the type of cocaine
involved, that disparity “is the product of a discrepancy
created by statute.” Id. at 812-13. “While the sentencing
guidelines may be only advisory for district judges,
congressional legislation is not.” Id. at 813; see also United
States v. Millbrook, 553 F.3d 1057, 1067 (7th Cir. 2009)
(“Kimbrough’s discussion of a district court’s discretion
to take into account the crack/powder disparity is of no
consequence to a defendant sentenced under § 4B1.1 as a
career offender.”); Clanton, 538 F.3d at 660 (“[A] sentence
entered under the career offender guideline, § 4B.1.1, raises
no Kimbrough problem . . . .” (quoting Harris, 536 F.3d
at 813)).
Given our holding in Harris, it may seem that Davis
and Anthony, both career offenders sentenced under
§ 4B1.1, are not entitled to resentencing in light of
Kimbrough. However, these defendants cite United States
v. Liddell, 543 F.3d 877 (7th Cir. 2008), in support of their
argument that a district court may rely on the
crack/powder disparity as a basis for imposing a sentence
below the career offender guidelines range. After
being sentenced as a career offender, Liddell argued on
appeal that the district court should have considered the
severity of the crack/powder disparity. Id. at 880, 882.
Citing Harris, the court first noted that Liddell’s argument
was problematic because the only crack/powder
disparity that affected his sentence under § 4B1.1 was the
product of a statute. Id. at 882-83. Nonetheless, the
court then recognized what it called the defendant’s
“more nuanced” argument of whether a district court
“can consider the disparity as a reason for issuing a
below-guideline sentence.” Id. at 883. This contention
was ultimately rejected because Liddell did not raise it
below, and any error by the district court in failing to
consider his Kimbrough challenge was not plain. Id. at 883,
885; see also United States v. Hearn, 549 F.3d 680, 684 (7th
Cir. 2008) (rejecting the defendant’s “more nuanced
argument based on Kimbrough” under a plain-error standard
of review (quoting Liddell, 543 F.3d at 883)).
Liddell is difficult to reconcile with Harris, but it is not
necessary to resolve the tension between these cases
today because Davis and Anthony are entitled to
resentencing for a reason not present in either case. Unlike
the defendants in Harris and Liddell, the defendants
in this case pleaded guilty to conspiracy under 21 U.S.C.
§ 846 but not to the substantive offense under 21 U.S.C.
§ 841. See Harris, 536 F.3d at 802 (conviction of distributing
crack cocaine under § 841(a)); Liddell, 543 F.3d at
879 (guilty plea to possession with intent to distribute
under § 841(a)). It is true that drug distribution or possession
with the intent to distribute was the object of the
Knox and Davis conspiracy, but that is of no consequence
here. As mentioned above, the congressional
directive that career offenders be sentenced “at or near”
the statutory maximum applies only to certain,
enumerated offenses of conviction. 28 U.S.C. § 994(h).
Although substantive distribution offenses under § 841
are among the listed offenses, conspiracy offenses under
§ 846 are not. Id. § 994(h)(1)(B). Moreover, the precision
with which § 994(h) includes certain drug offenses
but excludes others indicates that the omission of § 846
was no oversight.
Section 994(h)(1)(B) provides a narrow list of drug
offenses that require the “at or near the maximum” career
offender treatment, including distribution under § 841,
importation of certain controlled substances under 21
U.S.C. § 952(a), and manufacturing and distributing on
board vessels under 46 U.S.C. § 70503. The statute also
omits several significant drug offenses, including the
use of a communication facility to facilitate a drug
offense under 21 U.S.C. § 843(b) and simple possession
under 21 U.S.C. § 844. Perhaps the best example of the
statute’s precision is the inclusion of only those importation
offenses involving the most harmful drugs. Section
994(h) includes 21 U.S.C. § 952(a), which prohibits the
importation of schedule I and II controlled substances
and narcotic drugs under schedules III, IV, and V, but
carefully excludes 21 U.S.C. § 952(b), which prohibits
the importation of nonnarcotic schedule III, IV, and V
substances.
Also telling is § 994(h)’s inclusion of a conspiracy
offense other than § 846. The statute incorporates all
maritime drug offenses “described in . . . chapter 705 of
title 46.” 28 U.S.C. § 994(h)(1)(B). That chapter includes,
among other things, a penalty provision for “attempts and
conspiracies” to manufacture controlled substances on
board vessels. 46 U.S.C. § 70506(b). If Congress wanted to
include the Controlled Substances Act’s analogous § 846
conspiracy provision, it knew how to do so. And simply
reading § 846 offenses into § 994(h) would undermine
Congress’s intent to exclude certain drug offenses from
the statute’s reach. Since § 846 prohibits any attempt or
conspiracy “to commit any offense defined in this
subchapter,” incorporating § 846 into § 994(h) would
include through the back door as the object of a conspiracy
substantive drug offenses, such as simple possession
of a controlled substance in violation of 21 U.S.C.
§ 844, that Congress specifically omitted from the “at
or near the maximum” directive.
Based on the deliberate manner in which § 994(h)
includes specific drug offenses but excludes others,
Congress did not intend to include § 846 offenses
among those requiring sentences “at or near” the
statutory maximum. Because § 846 is not included in
this statutory mandate, § 994(h) does not limit a district
court’s discretion under Kimbrough to consider the
crack/powder disparity affecting a career offender convicted
under § 846.
True, the career offender guideline itself draws no
distinction between § 841 and § 846 offenses for sentencing
purposes. U.S.S.G. § 4B1.2 cmt. n.1 (defining the drug
offenses qualifying for career-offender treatment to
include “the offenses of aiding and abetting, conspiring,
and attempting to commit such offenses”). Relying on
its “general guideline promulgation authority under
28 U.S.C. § 994(a)-(f),” the Sentencing Commission has
gone beyond the specific offenses listed in § 994(h) and
included § 846 conspiracy offenses in § 4B1.1. U.S.S.G.
§ 4B1.1 cmt. bkgd. Courts have repeatedly recognized
that this exercise of the Commission’s authority under
§ 994 was valid. E.g., United States v. Damerville, 27 F.3d 254,
257 (7th Cir. 1994); United States v. Mendoza-Figueroa, 65
F.3d 691, 693-94 (8th Cir. 1995) (en banc). Indeed, the
Senate Report to § 994(h) provides that the statute is
“not necessarily intended to be an exhaustive list of
types of cases in which . . . terms at or close to
authorized maxima should be specified.” S. Rep. No. 98-
225, at 176 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182,
3359; see also Mendoza-Figueroa, 65 F.3d at 694 (relying
on legislative history to conclude that § 994(h) “is ample
authority to include drug conspiracies as qualifying
offenses”). Moreover, since the statutory penalties for
conspiracy offenses under § 846 and substantive offenses
under § 841 are the same, the Commission had good
reason to go beyond the specific mandate of § 994(h) and
include conspiracy offenses in the career offender guideline.
Damerville, 27 F.3d at 257; United States v. Jackson,
60 F.3d 128, 133 (2d Cir. 1995).
Still, although the Commission had the authority to
include drug conspiracy offenses under § 846 in the
career offender guideline, nothing in the text of § 994(h)
requires the Commission to do so. See Damerville, 27 F.3d
at 257 (“Section 994(h) provides the minimum obligation
of the Commission and does not prohibit the inclusion
of additional offenses that qualify for such treatment.”);
United States v. Piper, 35 F.3d 611, 618 (1st Cir. 1994)
(explaining that only those offenses listed in § 994(h)
comprise “the irreducible minimum that the Commission
must do by way of a career offender guideline”);
United States v. Heim, 15 F.3d 830, 832 (9th Cir. 1994) (“The
Commission’s decision to go beyond the mandate of
§ 994(h) is . . . consistent with the legislative history to
§ 994(h).” (emphasis added)). So the Commission’s decision
to include conspiracy offenses in the career offender
guideline—and thereby subject § 846 offenders to the
crack/powder disparity contained in the statutory maximums—
reflects an exercise of discretion. See United
States v. Allen, 24 F.3d 1180, 1186 (10th Cir. 1994) (“Section
994(h) does not, by mandating enhancement for certain
crimes, preclude the Commission from enhancing others
if it is within the Commission’s grant of discretion to
do so.”). Such policy decisions made by the Commission
in developing the Guidelines are not binding on sentencing
courts. See Kimbrough, 128 S. Ct. at 570-71 (observing
that no congressional act prevented sentencing
courts from disagreeing with the crack/powder disparity
embedded in § 2D1.1); United States v. Spears, 129 S. Ct. 840,
843 (2009) (per curiam) (Kimbrough recognized “district
courts’ authority to vary from the crack cocaine Guidelines
based on policy disagreement with them . . . .”).
Since no congressional statute requires that a career
offender convicted of a conspiracy offense under 21 U.S.C.
§ 846 be sentenced “at or near” the statutory maximum,
sentencing courts have the discretion under Kimbrough
to consider the crack/powder disparity affecting such
an offender’s sentence. It follows that Davis and
Anthony, who both pleaded guilty to conspiracy under
§ 846 but not to the substantive drug offense under § 841,
are entitled to a remand for resentencing in light of
Kimbrough.
2. The Effect of the 2007 Amendment Reducing
the Guidelines’ Crack/Powder Disparity on Davis’
and Anthony’s Sentences
Related to their Kimbrough argument, Davis and
Anthony argue that they are entitled to resentencing
under the Commission’s 2007 amendment to § 2D1.1,
which reduced the sentencing disparity between crack- and
powder-cocaine offenses. U.S.S.G. app. C, amend. 706
(Supp. 2007). We can easily dispense with this argument.
The Commission’s policy is that a defendant already
serving a sentence may not benefit from a guidelines
amendment unless it “ha[s] the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(B). Since Davis’ and Anthony’s sentences
were determined by § 4B1.1, the 2007 amendment to
§ 2D1.1 does not lower their applicable guidelines
ranges. See United States v. Forman, 553 F.3d 585, 589 (7th
Cir. 2009) (per curiam) (“Amendment 706 provides no
benefit to career offenders.”); Clay, 524 F.3d at 878-79
(“Although the recent amendments to the sentencing
guidelines lowered the offense levels associated with
crack in the drug quantity table in U.S.S.G. § 2D1.1, they
did not change the career offender provision in
§ 4B1.1 . . . .”). Further, the Commission’s policy on
this point is not one that we can simply ignore, since
Congress has declared that any sentence reductions
based on a guidelines amendment must be “consistent
with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2); see also
United States v. Lawrence, 535 F.3d 631, 637 (7th Cir. 2008)
(recognizing that a district court’s authority to reduce
sentences under § 3582(c)(2) is limited by the Commission’s
policy statements).
3. The Effect of Kimbrough and the 2007 Amendment
on Armean’s Sentence
Unlike his co-defendants, Armean did not qualify as a
career offender. Since his sentence was determined by
§ 2D1.1, Armean should be an obvious candidate for
resentencing in light of Kimbrough. However, Armean
failed to challenge the crack/powder disparity embedded
in § 2D1.1 both at his sentencing hearing and in his appellate
brief. The latter omission would generally mean
that Armean has waived any benefit from Kimbrough,
since “[a] party waives any argument that . . . it fails to
develop on appeal.” Local 15, Int’l Broth. of Elec. Workers,
AFL-CIO v. Exelon Corp., 495 F.3d 779, 783 (7th Cir. 2007)
(quotation and citation omitted)). Fortunately for
Armean, the government has conceded that Armean is
entitled to a Taylor limited remand in light of Kimbrough,
thereby “waiving waiver” of Armean’s Kimbrough claim.
See, e.g., United States v. Pacheco-Diaz, 506 F.3d 545, 551
(7th Cir. 2007). We will accordingly grant Armean a
limited remand at which the district court should
indicate whether it would have sentenced Armean differently
had it known of its discretion under Kimbrough.
See Taylor, 520 F.3d at 748-49.
Although failing to brief his Kimbrough claim, Armean
has argued on appeal that he is entitled to a sentence
reduction under the 2007 amendment to § 2D1.1. That may
be true, but this appeal is not the proper vehicle for
Armean to raise this claim in the first instance; rather,
Armean should move for a reduced sentence in the
district court under 18 U.S.C. § 3582(c)(2). Armean will
have the opportunity to make this motion at his limited
remand, at which the district court should first decide
“whether to act favorably on [Armean’s] motion (if he
makes one, or on the judge’s own initiative, if [Armean]
does not) for relief under the Commission’s new crack
regime.” Taylor, 520 F.3d at 748. After resolving any § 3582
motion, the court should indicate whether it is inclined
to reduce Armean’s sentence even further in light of
Kimbrough. Id. at 749.
B. Sentencing Arguments Resolved—Davis
Although we conclude that Davis and Anthony are
entitled to a full remand and resentencing in light of
Kimbrough, we have also considered their sentencing
arguments that are unrelated to the crack/powder disparity.
Because some of these arguments are meritless
and were fully developed in the initial sentencing proceedings,
we may dispense with them in this appeal.
Beginning with Davis’ individual arguments, he asserts
that other errors were committed at his sentencing. He
argues that the district court abused its discretion by
failing to adequately consider evidence that the ATF agent
engaged in sentencing entrapment and manipulation.
Davis also asserts that the court’s application of the
career offender guideline to his case was unreasonable
based on the minor nature of his prior felony convictions
and the unreliability of the court’s findings of Davis’
prior convictions. Finally, Davis challenges the district
court’s refusal to reduce his sentence based on his cooperation
with the government.
1. Sentencing Entrapment and Manipulation
Sentencing entrapment occurs “when a defendant who
lacks a predisposition to engage in more serious crimes
nevertheless does so ‘as a result of unrelenting government
persistence.’ ” United States v. White, 519 F.3d 342,
347 (7th Cir. 2008) (quoting United States v. Veazey, 491 F.3d
700, 710 (7th Cir. 2007)). The government may disprove
sentencing entrapment by simply showing that the defendant
was in fact predisposed to violate the law without
“extraordinary inducements.” Id.
Sentencing manipulation is distinct from entrapment
and occurs when the government procures evidence
“through outrageous conduct solely for the purpose of
increasing the defendant’s sentence under the Sentencing
Guidelines.” United States v. Wagner, 467 F.3d 1085, 1090
(7th Cir. 2006). Because “this circuit clearly and consistently
has refused to recognize any defense based on
either ‘sentencing manipulation’ or on asserting ‘outrageous
government conduct,’ ” White, 519 F.3d at 346,
Davis’ manipulation argument would seem to be a
nonstarter. However, Davis raises both sentencing entrapment
and manipulation not as defenses to criminal conduct,
but as mitigating factors that the district court may
consider in choosing a reasonable sentence. See United
States v. Lakhani, 480 F.3d 171, 186 (3d Cir. 2007) (acknowledging
that the district court at sentencing “would have
been entitled to consider the Government’s pervasive
role in this case,” even though the jury had rejected the
defendant’s entrapment defense); cf. United States v. Hale,
448 F.3d 971, 989 (7th Cir. 2006) (rejecting a sentencing
entrapment argument under § 3553(a) on the ground that
the defendant had not shown “extraordinary inducements”).
Assuming that evidence of sentencing entrapment
and manipulation could be relevant to a district
court’s application of the § 3553(a) factors, the evidence
in this case was not so strong that the district court
abused its discretion in rejecting Davis’ entrapment and
manipulation arguments.
Davis argues that, by changing the payment term of the
guns purchase from $2000 cash to 2 1/4 ounces cocaine, the
ATF agent entrapped Davis into a drug offense that he
would not otherwise have committed. That change also
amounts to sentencing manipulation, says Davis, because
the drug offense triggered a harsher sentencing range
under the career offender guideline, which would not
apply to a cash purchase of guns. See U.S.S.G. § 4B1.1(a)(2)
(indicating that the career offender guideline applies
only where “the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense”).
We find these arguments to be without merit. As to
sentencing entrapment, Davis had sold crack to the
agent on three prior occasions, indicating that he did not
lack the predisposition to commit another crack deal. True,
the prior sales involved quantities below the 50-gram
threshold that triggered a higher statutory maximum for
Davis’ instant conviction. See 21 U.S.C. § 841(b)(1)(a)(iii).
But Davis was at all times agreeable to paying for the
guns with 2 1/4 ounces of crack, telling his co-defendants
that he could easily supply that quantity. The agent
did not have to use “extraordinary inducements” to
convince Davis to engage in this relatively high-volume
crack deal. White, 519 F.3d at 347. And while the 2 1/4
ounces solicited by the agent may have had a slightly
lesser value than the originally proposed $2000 cash, such
“bargain basement pricing” does not amount to sentencing
entrapment. United States v. Estrada, 256 F.3d 466,
473-74 (7th Cir. 2001).
As to sentencing manipulation, it is not enough that
the agent’s provision of handguns and solicitation of
larger crack quantities may have been “motivated in part
by the desire to increase [Davis’] sentence.” Wagner, 467
F.3d at 1090. Although the agent’s tactics had the effect
of increasing Davis’ guidelines sentencing range, it also
served the legitimate purpose of investigating the full
extent of Davis’ criminal activity, including his ability to
deal in large quantities of crack. See id. The government’s
conduct in this case was not so outrageous as to
require leniency under § 3553(a).
2. Application of the Career Offender Guideline
Davis challenges the reasonableness of the district
court’s application of the career offender guideline. In
particular, Davis contends that sentencing him under
§ 4B1.1 is unreasonable because two of the three prior
drug felonies that qualified him as a career offender
occurred at a young age, involved relatively small
amounts of drugs, and resulted in relatively short periods
of incarceration. The problem for Davis, however, is that
the district court fully considered these factors when
examining Davis’ “extensive criminal history.” The court
simply discounted the relative brevity of Davis’ prior
sentences against the fact that “the sentences that you
have served certainly have not been a deterrent to your
conduct.” There was no abuse of discretion here.
Davis also challenges the district court’s conclusion
that he qualified as a career offender based on prior
convictions that were not proven beyond a reasonable
doubt. He argues that due process requires that sentencing
enhancements be based on only reliable facts, and
that prior convictions established by a mere preponderance
of the evidence are unreliable. However, rather
than developing a cogent due process claim, Davis’ brief
blends his argument for a reasonable doubt standard
with a discussion of the Sixth Amendment right to a
jury trial. We have repeatedly held that the Sixth Amendment
does not require that prior convictions supporting
a career offender classification be found by a jury beyond
a reasonable doubt. See Clanton, 538 F.3d at 654 (citing
Almendarez-Torres v. United States, 523 U.S. 224 (1998));
United States v. Sachsenmaier, 491 F.3d 680, 685 (7th Cir.
2007). We do not see how Davis’ argument, though
couched in terms of due process and the reasonableness
of his sentence, survives this precedent.
3. Cooperation with the Government
In his final challenge to the reasonableness of his sentence,
Davis argues that the district court abused its
discretion by failing to consider his cooperation with
the government. Prior to pleading in this case, Davis
discussed a plea agreement where, in exchange for disclosing
the details of the crime and serving as a witness,
the government would move for a reduced sentence
based on Davis’ “substantial assistance.” See U.S.S.G.
§ 5K1.1. The deal fell through, however, based on Davis’
desire to make other mitigation arguments at sentencing
and his failure to admit all of the details of the offense,
particularly that it involved crack cocaine. As a result,
the government declined to make a § 5K1.1 motion at
Davis’ sentencing.
We agree with Davis that, as a general matter, a district
court may consider a defendant’s cooperation with the
government as a basis for a reduced sentence, even if the
government has not made a § 5K1.1 motion. See United
States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006) (reasoning
that a district court should consider “the contention that
a defendant made efforts to cooperate, even if those
efforts did not yield a Government motion for a downward
departure pursuant to U.S.S.G. § 5K1.1”); United
States v. Doe, 398 F.3d 1254, 1260-61 (10th Cir. 2005) (concluding
that “a defendant’s assistance should be fully
considered by a district court at sentencing even if that
assistance is not presented to the court in the form of a
§ 5K1.1 motion”); cf. United States v. Blue, 453 F.3d 948,
954 (7th Cir. 2006) (recognizing the district court’s “obligation
to weigh the defendant’s cooperation . . . against the
other statutory sentencing factors” where the government
had made a § 5K1.1 motion). However, we
disagree that the district court in this case failed to give
sufficient consideration to Davis’ substantial-assistance
argument. The court simply rejected that argument in
favor of the government’s claim that “there were certain
things that [Davis] would not admit that were essential
to [his] cooperation.” The court’s decision to give more
credit to the government’s view of the extent of Davis’
cooperation was not an abuse of discretion.
C. Sentencing Entrapment and
Manipulation—Anthony
In addition to the Kimbrough argument that we have
addressed above, Anthony adopts Davis’ arguments
that the district court failed to adequately consider evidence
of sentencing entrapment and manipulation. As
with Davis’ analogous claims, we find that Anthony’s
sentencing entrapment and manipulation claims are
without merit. Along with Davis, Anthony negotiated
the guns purchase with the ATF agent and readily
agreed to the agent’s suggestion that the defendants pay
for the guns with crack instead of cash. The government
did not have to resort to “extraordinary inducements”
that would support a sentencing entrapment claim,
White, 519 F.3d at 347, and its conduct was not so outrageous
to support a sentencing manipulation claim,
Wagner, 467 F.3d at 1090.
III. Conclusion
Because no congressional directive prohibited the
district court from considering Davis’ and Anthony’s
sentencing argument based on the crack/powder
disparity affecting career offenders convicted of drug
conspiracy offenses under 21 U.S.C. § 846, we VACATE
these defendants’ sentences and REMAND for resentencing
consistent with this opinion. As for Armean’s case, we
order a LIMITED REMAND so that the district court may
follow the procedure described in United States v. Taylor,
520 F.3d 746, 748-49 (7th Cir. 2008), to address the effect
of both the 2007 Amendment to § 2D1.1 and Kimbrough on
Armean’s sentence. After resolving any motion for a
reduced sentence under 18 U.S.C. § 3582(c)(2) based on
the Amendment, the court should indicate whether it is
inclined to reduce Armean’s sentence under Kimbrough.
Chicago Criminal Lawyer - Robert J Callahan
Anthony Knox, and Armean Knox1 made a deal to buy
fourteen semi-automatic handguns for the bargain price
of 2 1/4 ounces of crack cocaine. As their unfortunate
luck would have it, the seller was an undercover agent.
After being arrested on various drugs and weapons
charges, each defendant pleaded guilty to conspiracy to
distribute more than 50 grams of crack. On appeal, the
defendants raise several challenges to the reasonableness
of their sentences, including that Kimbrough v.
United States, 128 S. Ct. 558 (2007), entitles them to
resentencing.
I. Background
A. Facts
On three separate occasions between June and September
2004, Davis sold between one-quarter and one-half
ounces of crack cocaine to an undercover agent with the
Bureau of Alcohol, Tobacco, and Firearms (“ATF”). During
each of these meetings, Davis expressed an interest in
purchasing handguns from the agent. At the third
meeting, Davis introduced the agent to Anthony, and the
two defendants negotiated a deal to pay $2000 cash for
one .45-caliber and thirteen .38-caliber guns. Armean
also met the agent at this meeting when he delivered the
crack for purchase.
On September 9, 2004, Davis and Armean met with the
agent again to discuss the guns purchase, and the agent
suggested that the defendants pay for the guns with 2
1/4 ounces of crack instead of $2000 cash. Davis and
Armean readily agreed to this payment term, since,
according to the defendants, that quantity of crack was
worth only about $1000 to $1400. Davis indicated that he
could easily supply the requested 2 1/4 ounces, telling the
agent that “if you want two and a split that’s nothing.”
During this meeting, Davis called Anthony, who also
agreed to the change in payment.
On September 16, 2004, Anthony and Armean delivered
61.5 grams2 of crack to the agent in exchange for the
fourteen guns. ATF agents arrested Anthony and
Armean on site immediately after they received the
guns, and Davis was later arrested in December 2004.
The government obtained an indictment charging
Davis, Anthony, and Armean with one count of conspiracy
to possess with intent to distribute and to distribute
more than 50 grams of crack cocaine, in violation
of 21 U.S.C. § 846, and several counts of intentionally
distributing crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Additionally, the indictment charged Anthony
and Armean each with one count of being felons in possession
of firearms, in violation of 18 U.S.C. § 922(g)(1). The
indictment also charged Davis with conspiring with
another individual to possess with intent to distribute
and to distribute more than five grams of crack cocaine,
but the government later dismissed the charges against
that individual. The defendants pleaded guilty without
plea agreements. Each defendant pleaded guilty to the
conspiracy to distribute more than 50 grams of crack
cocaine, and Anthony and Armean pleaded guilty to
the firearms possession counts. The government subse
quently dismissed all of the distribution counts against
the defendants and the other conspiracy count against
Davis.
B. Sentencing Proceedings
The defendants were sentenced between December 2006
and March 2007. Under the Sentencing Guidelines, Davis
qualified as a career offender based on three of his prior
felony drug convictions, see U.S.S.G. § 4B1.1(a), resulting
in a criminal history category of VI and an offense level
of 37, see id. § 4B1.1(b)(A) (applying an offense level
of 37 for offenses with statutory maximums of life imprisonment);
21 U.S.C. § 841(b)(1)(A)(iii) (imposing a
maximum sentence of life imprisonment for drug
offenses involving 50 grams or more of crack). After a
three-level reduction for acceptance of responsibility,
see U.S.S.G. § 3E1.1, Davis’ total offense level was 34,
yielding an advisory guidelines sentencing range of 262-
327 months. This sentencing range was higher than what
Davis would have received had he been sentenced as a
non-career offender under the drug-offense guideline,
§ 2D1.1; although Davis’ criminal history category was
VI even before the application of § 4B1.1, his offense level
was higher under § 4B1.1.
At his sentencing hearing, Davis asked for a belowguidelines
sentence based on the Guidelines’ 100:1 disparity
between sentences for crack- and powder-cocaine
offenses, the ATF agent’s use of sentencing entrapment
and manipulation, and Davis’ cooperation with the
government. Davis also presented substantial evidence
of his unstable childhood and his family’s history of
substance abuse, as well as expert testimony of Davis’
mental illness.
The district court dismissed Davis’ argument based on
the severity of the crack/powder disparity, citing thenbinding
circuit precedent precluding the court from
relying on that disparity as a basis for imposing a sentence
below the guidelines range. See United States v. Miller,
450 F.3d 270, 275 (7th Cir. 2006), abrogated by Kimbrough
v. United States, 128 S. Ct. 558 (2007). The court also
rejected Davis’ claims of sentencing entrapment, sentencing
manipulation, and cooperation with the government.
The court did, however, give substantial credit
to Davis’ evidence of his difficult childhood and history
of mental illness. Concluding that these factors made it
reasonable to deviate from the Guidelines, the court gave
Davis a below-guidelines sentence of 220 months.
Anthony, like Davis, qualified as a career offender
under § 4B1.1, resulting in a criminal history category of VI
and an offense level of 37. After a three-level reduction
under § 3E1.1 for acceptance of responsibility, Anthony’s
total offense level was 34, yielding an advisory guidelines
sentencing range of 262-327 months. As in Davis’
case, this sentencing range was higher than what Anthony
would have received under § 2D1.1 as a non-career offender;
although Anthony’s criminal history category
was VI even before the application of § 4B1.1, his
offense level was higher under § 4B1.1.
At the sentencing hearing, Anthony argued for a belowguidelines
sentence based on the severity of the Guidelines’
100:1 crack/powder disparity and the ATF agent’s
use of sentencing manipulation. The district court did not
accept these arguments and imposed a minimum-guidelines
sentence of 262 months.
Armean, unlike his co-defendants, did not qualify as a
career offender; his sentence for the drug offense was
determined by § 2D1.1. Because the guns purchase involved
a quantity of crack between 50 and 150 grams,
Armean’s base offense level was 32.4 After a two-level
enhancement for the possession of a dangerous weapon,
see U.S.S.G. § 2D1.1(b)(1), and a three-level reduction
for acceptance of responsibility under § 3E1.1, Armean’s
total offense level was 31. His criminal history category
was IV, yielding an advisory guidelines sentencing
range of 151-188 months. The district court imposed a
guidelines sentence of 165 months.
C. Arguments on Appeal
On appeal, all three defendants argue that the district
court should have considered the Guidelines’
crack/powder disparity as a basis for reducing their
sentences. They claim that the Supreme Court’s decision
in Kimbrough v. United States, 128 S. Ct. 558, 564 (2007),
which held that the disparity is advisory and therefore
within a district court’s discretion to consider, entitles
them to resentencing. Davis and Anthony also argue that
the district court failed to sufficiently address their sentencing
entrapment and manipulation claims. Finally,
Davis raises several additional challenges to the reasonableness
of his sentence, which we describe in greater
detail below.
II. Analysis
We review the district court’s sentencing decisions for
an abuse of discretion. Gall v. United States, 128 S. Ct. 586,
597 (2007); United States v. Clanton, 538 F.3d 652, 659
(7th Cir. 2008). After ensuring that the district court
committed no procedural error such as failing to
properly calculate the guidelines range or consider the
sentencing factors of 18 U.S.C. § 3553(a), we examine the
substantive reasonableness of the sentence. Gall, 128 S. Ct.
at 597; Clanton, 538 F.3d at 659. In determining whether
a guidelines sentence is reasonable, the district court
should consider all of the § 3553(a) factors and “make
an individualized assessment based on the facts presented.”
Gall, 128 S. Ct. at 597.
A. The Impact of Kimbrough and the Crack/Powder
Disparity on Career Offenders
1. The Effect of Kimbrough on Davis’ and
Anthony’s Sentences
After the defendants in this case were sentenced,
the Supreme Court held in Kimbrough v. United States,
128 S. Ct. 558, 564 (2007), that district courts may consider
the crack/powder disparity embedded in the drugoffense
guideline, § 2D1.1, as a basis for choosing a belowguidelines
sentence. The Court explained that a district
court may generally consider policy disagreements
with the advisory Guidelines, provided that the court
does not disregard statutes such as mandatory minimums
and maximums. See id. at 570-71. Since the Guidelines’
crack/powder disparity does not result from a
congressional mandate, see id. at 571-72, “it would not
be an abuse of discretion for a district court to conclude”
that the disparity “yields a sentence ‘greater than necessary’
to achieve § 3553(a)’s purposes . . . .” Id. at 575.
Before Kimbrough, our circuit precedent prevented
district courts from considering the crack/powder
disparity as a basis for choosing a below-guidelines
sentence. See United States v. Miller, 450 F.3d 270, 274-75
(7th Cir. 2006). To correct the prejudicial effects of Miller,
we have established remand procedures for crack
offenders sentenced prior to Kimbrough. Offenders who
did not raise a challenge to the crack/powder disparity
at sentencing are entitled to a limited remand,
allowing the district court to indicate whether it would
have selected a different sentence had it known of its
discretion under Kimbrough. United States v. Taylor, 520
F.3d 746, 747-49 (7th Cir. 2008). Offenders who did challenge
the disparity at sentencing are entitled to a full
remand and resentencing. Clanton, 538 F.3d at 659.
We have previously granted these remands only to
offenders sentenced under the drug-offense guideline,
§ 2D1.1, as opposed to the career offender guideline,
§ 4B1.1. See id. at 659-60. Although career offenders are
subject to a 100:1 crack/powder sentencing disparity,
that disparity does not originate in the advisory drugoffense
guideline at issue in Kimbrough. Instead, it is the
operation of mandatory statutes that subjects career
offenders to the policy of harsher sentences for crackcocaine
offenses. Congress has directed that career offenders
convicted of offenses “described in” certain,
enumerated statutes, including 21 U.S.C. § 841, be sentenced
“at or near the maximum term authorized” for
the offense. 28 U.S.C. § 994(h)(1)(B). To implement this
directive, the career offender guideline prescribes base
offense levels that track the statutory maximums of the
offense of conviction. U.S.S.G. § 4B1.1(b). For convictions
of drug offenses under 21 U.S.C. § 841, the
applicable statutory maximums treat a given quantity of
crack cocaine the same as 100 times that quantity of
powder cocaine for sentencing purposes. See 21 U.S.C.
§ 841(b)(1)(A)(ii)-(iii) (imposing a maximum sentence of
life imprisonment for drug offenses involving both 50
grams of crack and 5 kg of powder cocaine). It is this
statutory penalty provision, incorporated into the Guidelines
pursuant to another statute, 28 U.S.C. § 994(h),
wherein the 100:1 crack/powder disparity affecting
career offenders lies.
Relying on the statutory origin of the crack/powder
disparity embedded in § 4B1.1, we held in United States
v. Harris, 536 F.3d 798, 813 (7th Cir. 2008), that Kimbrough
had no effect on a career offender’s sentence. We
reasoned that, although a sentencing disparity might
occur under § 4B1.1 based on the type of cocaine
involved, that disparity “is the product of a discrepancy
created by statute.” Id. at 812-13. “While the sentencing
guidelines may be only advisory for district judges,
congressional legislation is not.” Id. at 813; see also United
States v. Millbrook, 553 F.3d 1057, 1067 (7th Cir. 2009)
(“Kimbrough’s discussion of a district court’s discretion
to take into account the crack/powder disparity is of no
consequence to a defendant sentenced under § 4B1.1 as a
career offender.”); Clanton, 538 F.3d at 660 (“[A] sentence
entered under the career offender guideline, § 4B.1.1, raises
no Kimbrough problem . . . .” (quoting Harris, 536 F.3d
at 813)).
Given our holding in Harris, it may seem that Davis
and Anthony, both career offenders sentenced under
§ 4B1.1, are not entitled to resentencing in light of
Kimbrough. However, these defendants cite United States
v. Liddell, 543 F.3d 877 (7th Cir. 2008), in support of their
argument that a district court may rely on the
crack/powder disparity as a basis for imposing a sentence
below the career offender guidelines range. After
being sentenced as a career offender, Liddell argued on
appeal that the district court should have considered the
severity of the crack/powder disparity. Id. at 880, 882.
Citing Harris, the court first noted that Liddell’s argument
was problematic because the only crack/powder
disparity that affected his sentence under § 4B1.1 was the
product of a statute. Id. at 882-83. Nonetheless, the
court then recognized what it called the defendant’s
“more nuanced” argument of whether a district court
“can consider the disparity as a reason for issuing a
below-guideline sentence.” Id. at 883. This contention
was ultimately rejected because Liddell did not raise it
below, and any error by the district court in failing to
consider his Kimbrough challenge was not plain. Id. at 883,
885; see also United States v. Hearn, 549 F.3d 680, 684 (7th
Cir. 2008) (rejecting the defendant’s “more nuanced
argument based on Kimbrough” under a plain-error standard
of review (quoting Liddell, 543 F.3d at 883)).
Liddell is difficult to reconcile with Harris, but it is not
necessary to resolve the tension between these cases
today because Davis and Anthony are entitled to
resentencing for a reason not present in either case. Unlike
the defendants in Harris and Liddell, the defendants
in this case pleaded guilty to conspiracy under 21 U.S.C.
§ 846 but not to the substantive offense under 21 U.S.C.
§ 841. See Harris, 536 F.3d at 802 (conviction of distributing
crack cocaine under § 841(a)); Liddell, 543 F.3d at
879 (guilty plea to possession with intent to distribute
under § 841(a)). It is true that drug distribution or possession
with the intent to distribute was the object of the
Knox and Davis conspiracy, but that is of no consequence
here. As mentioned above, the congressional
directive that career offenders be sentenced “at or near”
the statutory maximum applies only to certain,
enumerated offenses of conviction. 28 U.S.C. § 994(h).
Although substantive distribution offenses under § 841
are among the listed offenses, conspiracy offenses under
§ 846 are not. Id. § 994(h)(1)(B). Moreover, the precision
with which § 994(h) includes certain drug offenses
but excludes others indicates that the omission of § 846
was no oversight.
Section 994(h)(1)(B) provides a narrow list of drug
offenses that require the “at or near the maximum” career
offender treatment, including distribution under § 841,
importation of certain controlled substances under 21
U.S.C. § 952(a), and manufacturing and distributing on
board vessels under 46 U.S.C. § 70503. The statute also
omits several significant drug offenses, including the
use of a communication facility to facilitate a drug
offense under 21 U.S.C. § 843(b) and simple possession
under 21 U.S.C. § 844. Perhaps the best example of the
statute’s precision is the inclusion of only those importation
offenses involving the most harmful drugs. Section
994(h) includes 21 U.S.C. § 952(a), which prohibits the
importation of schedule I and II controlled substances
and narcotic drugs under schedules III, IV, and V, but
carefully excludes 21 U.S.C. § 952(b), which prohibits
the importation of nonnarcotic schedule III, IV, and V
substances.
Also telling is § 994(h)’s inclusion of a conspiracy
offense other than § 846. The statute incorporates all
maritime drug offenses “described in . . . chapter 705 of
title 46.” 28 U.S.C. § 994(h)(1)(B). That chapter includes,
among other things, a penalty provision for “attempts and
conspiracies” to manufacture controlled substances on
board vessels. 46 U.S.C. § 70506(b). If Congress wanted to
include the Controlled Substances Act’s analogous § 846
conspiracy provision, it knew how to do so. And simply
reading § 846 offenses into § 994(h) would undermine
Congress’s intent to exclude certain drug offenses from
the statute’s reach. Since § 846 prohibits any attempt or
conspiracy “to commit any offense defined in this
subchapter,” incorporating § 846 into § 994(h) would
include through the back door as the object of a conspiracy
substantive drug offenses, such as simple possession
of a controlled substance in violation of 21 U.S.C.
§ 844, that Congress specifically omitted from the “at
or near the maximum” directive.
Based on the deliberate manner in which § 994(h)
includes specific drug offenses but excludes others,
Congress did not intend to include § 846 offenses
among those requiring sentences “at or near” the
statutory maximum. Because § 846 is not included in
this statutory mandate, § 994(h) does not limit a district
court’s discretion under Kimbrough to consider the
crack/powder disparity affecting a career offender convicted
under § 846.
True, the career offender guideline itself draws no
distinction between § 841 and § 846 offenses for sentencing
purposes. U.S.S.G. § 4B1.2 cmt. n.1 (defining the drug
offenses qualifying for career-offender treatment to
include “the offenses of aiding and abetting, conspiring,
and attempting to commit such offenses”). Relying on
its “general guideline promulgation authority under
28 U.S.C. § 994(a)-(f),” the Sentencing Commission has
gone beyond the specific offenses listed in § 994(h) and
included § 846 conspiracy offenses in § 4B1.1. U.S.S.G.
§ 4B1.1 cmt. bkgd. Courts have repeatedly recognized
that this exercise of the Commission’s authority under
§ 994 was valid. E.g., United States v. Damerville, 27 F.3d 254,
257 (7th Cir. 1994); United States v. Mendoza-Figueroa, 65
F.3d 691, 693-94 (8th Cir. 1995) (en banc). Indeed, the
Senate Report to § 994(h) provides that the statute is
“not necessarily intended to be an exhaustive list of
types of cases in which . . . terms at or close to
authorized maxima should be specified.” S. Rep. No. 98-
225, at 176 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182,
3359; see also Mendoza-Figueroa, 65 F.3d at 694 (relying
on legislative history to conclude that § 994(h) “is ample
authority to include drug conspiracies as qualifying
offenses”). Moreover, since the statutory penalties for
conspiracy offenses under § 846 and substantive offenses
under § 841 are the same, the Commission had good
reason to go beyond the specific mandate of § 994(h) and
include conspiracy offenses in the career offender guideline.
Damerville, 27 F.3d at 257; United States v. Jackson,
60 F.3d 128, 133 (2d Cir. 1995).
Still, although the Commission had the authority to
include drug conspiracy offenses under § 846 in the
career offender guideline, nothing in the text of § 994(h)
requires the Commission to do so. See Damerville, 27 F.3d
at 257 (“Section 994(h) provides the minimum obligation
of the Commission and does not prohibit the inclusion
of additional offenses that qualify for such treatment.”);
United States v. Piper, 35 F.3d 611, 618 (1st Cir. 1994)
(explaining that only those offenses listed in § 994(h)
comprise “the irreducible minimum that the Commission
must do by way of a career offender guideline”);
United States v. Heim, 15 F.3d 830, 832 (9th Cir. 1994) (“The
Commission’s decision to go beyond the mandate of
§ 994(h) is . . . consistent with the legislative history to
§ 994(h).” (emphasis added)). So the Commission’s decision
to include conspiracy offenses in the career offender
guideline—and thereby subject § 846 offenders to the
crack/powder disparity contained in the statutory maximums—
reflects an exercise of discretion. See United
States v. Allen, 24 F.3d 1180, 1186 (10th Cir. 1994) (“Section
994(h) does not, by mandating enhancement for certain
crimes, preclude the Commission from enhancing others
if it is within the Commission’s grant of discretion to
do so.”). Such policy decisions made by the Commission
in developing the Guidelines are not binding on sentencing
courts. See Kimbrough, 128 S. Ct. at 570-71 (observing
that no congressional act prevented sentencing
courts from disagreeing with the crack/powder disparity
embedded in § 2D1.1); United States v. Spears, 129 S. Ct. 840,
843 (2009) (per curiam) (Kimbrough recognized “district
courts’ authority to vary from the crack cocaine Guidelines
based on policy disagreement with them . . . .”).
Since no congressional statute requires that a career
offender convicted of a conspiracy offense under 21 U.S.C.
§ 846 be sentenced “at or near” the statutory maximum,
sentencing courts have the discretion under Kimbrough
to consider the crack/powder disparity affecting such
an offender’s sentence. It follows that Davis and
Anthony, who both pleaded guilty to conspiracy under
§ 846 but not to the substantive drug offense under § 841,
are entitled to a remand for resentencing in light of
Kimbrough.
2. The Effect of the 2007 Amendment Reducing
the Guidelines’ Crack/Powder Disparity on Davis’
and Anthony’s Sentences
Related to their Kimbrough argument, Davis and
Anthony argue that they are entitled to resentencing
under the Commission’s 2007 amendment to § 2D1.1,
which reduced the sentencing disparity between crack- and
powder-cocaine offenses. U.S.S.G. app. C, amend. 706
(Supp. 2007). We can easily dispense with this argument.
The Commission’s policy is that a defendant already
serving a sentence may not benefit from a guidelines
amendment unless it “ha[s] the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(B). Since Davis’ and Anthony’s sentences
were determined by § 4B1.1, the 2007 amendment to
§ 2D1.1 does not lower their applicable guidelines
ranges. See United States v. Forman, 553 F.3d 585, 589 (7th
Cir. 2009) (per curiam) (“Amendment 706 provides no
benefit to career offenders.”); Clay, 524 F.3d at 878-79
(“Although the recent amendments to the sentencing
guidelines lowered the offense levels associated with
crack in the drug quantity table in U.S.S.G. § 2D1.1, they
did not change the career offender provision in
§ 4B1.1 . . . .”). Further, the Commission’s policy on
this point is not one that we can simply ignore, since
Congress has declared that any sentence reductions
based on a guidelines amendment must be “consistent
with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2); see also
United States v. Lawrence, 535 F.3d 631, 637 (7th Cir. 2008)
(recognizing that a district court’s authority to reduce
sentences under § 3582(c)(2) is limited by the Commission’s
policy statements).
3. The Effect of Kimbrough and the 2007 Amendment
on Armean’s Sentence
Unlike his co-defendants, Armean did not qualify as a
career offender. Since his sentence was determined by
§ 2D1.1, Armean should be an obvious candidate for
resentencing in light of Kimbrough. However, Armean
failed to challenge the crack/powder disparity embedded
in § 2D1.1 both at his sentencing hearing and in his appellate
brief. The latter omission would generally mean
that Armean has waived any benefit from Kimbrough,
since “[a] party waives any argument that . . . it fails to
develop on appeal.” Local 15, Int’l Broth. of Elec. Workers,
AFL-CIO v. Exelon Corp., 495 F.3d 779, 783 (7th Cir. 2007)
(quotation and citation omitted)). Fortunately for
Armean, the government has conceded that Armean is
entitled to a Taylor limited remand in light of Kimbrough,
thereby “waiving waiver” of Armean’s Kimbrough claim.
See, e.g., United States v. Pacheco-Diaz, 506 F.3d 545, 551
(7th Cir. 2007). We will accordingly grant Armean a
limited remand at which the district court should
indicate whether it would have sentenced Armean differently
had it known of its discretion under Kimbrough.
See Taylor, 520 F.3d at 748-49.
Although failing to brief his Kimbrough claim, Armean
has argued on appeal that he is entitled to a sentence
reduction under the 2007 amendment to § 2D1.1. That may
be true, but this appeal is not the proper vehicle for
Armean to raise this claim in the first instance; rather,
Armean should move for a reduced sentence in the
district court under 18 U.S.C. § 3582(c)(2). Armean will
have the opportunity to make this motion at his limited
remand, at which the district court should first decide
“whether to act favorably on [Armean’s] motion (if he
makes one, or on the judge’s own initiative, if [Armean]
does not) for relief under the Commission’s new crack
regime.” Taylor, 520 F.3d at 748. After resolving any § 3582
motion, the court should indicate whether it is inclined
to reduce Armean’s sentence even further in light of
Kimbrough. Id. at 749.
B. Sentencing Arguments Resolved—Davis
Although we conclude that Davis and Anthony are
entitled to a full remand and resentencing in light of
Kimbrough, we have also considered their sentencing
arguments that are unrelated to the crack/powder disparity.
Because some of these arguments are meritless
and were fully developed in the initial sentencing proceedings,
we may dispense with them in this appeal.
Beginning with Davis’ individual arguments, he asserts
that other errors were committed at his sentencing. He
argues that the district court abused its discretion by
failing to adequately consider evidence that the ATF agent
engaged in sentencing entrapment and manipulation.
Davis also asserts that the court’s application of the
career offender guideline to his case was unreasonable
based on the minor nature of his prior felony convictions
and the unreliability of the court’s findings of Davis’
prior convictions. Finally, Davis challenges the district
court’s refusal to reduce his sentence based on his cooperation
with the government.
1. Sentencing Entrapment and Manipulation
Sentencing entrapment occurs “when a defendant who
lacks a predisposition to engage in more serious crimes
nevertheless does so ‘as a result of unrelenting government
persistence.’ ” United States v. White, 519 F.3d 342,
347 (7th Cir. 2008) (quoting United States v. Veazey, 491 F.3d
700, 710 (7th Cir. 2007)). The government may disprove
sentencing entrapment by simply showing that the defendant
was in fact predisposed to violate the law without
“extraordinary inducements.” Id.
Sentencing manipulation is distinct from entrapment
and occurs when the government procures evidence
“through outrageous conduct solely for the purpose of
increasing the defendant’s sentence under the Sentencing
Guidelines.” United States v. Wagner, 467 F.3d 1085, 1090
(7th Cir. 2006). Because “this circuit clearly and consistently
has refused to recognize any defense based on
either ‘sentencing manipulation’ or on asserting ‘outrageous
government conduct,’ ” White, 519 F.3d at 346,
Davis’ manipulation argument would seem to be a
nonstarter. However, Davis raises both sentencing entrapment
and manipulation not as defenses to criminal conduct,
but as mitigating factors that the district court may
consider in choosing a reasonable sentence. See United
States v. Lakhani, 480 F.3d 171, 186 (3d Cir. 2007) (acknowledging
that the district court at sentencing “would have
been entitled to consider the Government’s pervasive
role in this case,” even though the jury had rejected the
defendant’s entrapment defense); cf. United States v. Hale,
448 F.3d 971, 989 (7th Cir. 2006) (rejecting a sentencing
entrapment argument under § 3553(a) on the ground that
the defendant had not shown “extraordinary inducements”).
Assuming that evidence of sentencing entrapment
and manipulation could be relevant to a district
court’s application of the § 3553(a) factors, the evidence
in this case was not so strong that the district court
abused its discretion in rejecting Davis’ entrapment and
manipulation arguments.
Davis argues that, by changing the payment term of the
guns purchase from $2000 cash to 2 1/4 ounces cocaine, the
ATF agent entrapped Davis into a drug offense that he
would not otherwise have committed. That change also
amounts to sentencing manipulation, says Davis, because
the drug offense triggered a harsher sentencing range
under the career offender guideline, which would not
apply to a cash purchase of guns. See U.S.S.G. § 4B1.1(a)(2)
(indicating that the career offender guideline applies
only where “the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense”).
We find these arguments to be without merit. As to
sentencing entrapment, Davis had sold crack to the
agent on three prior occasions, indicating that he did not
lack the predisposition to commit another crack deal. True,
the prior sales involved quantities below the 50-gram
threshold that triggered a higher statutory maximum for
Davis’ instant conviction. See 21 U.S.C. § 841(b)(1)(a)(iii).
But Davis was at all times agreeable to paying for the
guns with 2 1/4 ounces of crack, telling his co-defendants
that he could easily supply that quantity. The agent
did not have to use “extraordinary inducements” to
convince Davis to engage in this relatively high-volume
crack deal. White, 519 F.3d at 347. And while the 2 1/4
ounces solicited by the agent may have had a slightly
lesser value than the originally proposed $2000 cash, such
“bargain basement pricing” does not amount to sentencing
entrapment. United States v. Estrada, 256 F.3d 466,
473-74 (7th Cir. 2001).
As to sentencing manipulation, it is not enough that
the agent’s provision of handguns and solicitation of
larger crack quantities may have been “motivated in part
by the desire to increase [Davis’] sentence.” Wagner, 467
F.3d at 1090. Although the agent’s tactics had the effect
of increasing Davis’ guidelines sentencing range, it also
served the legitimate purpose of investigating the full
extent of Davis’ criminal activity, including his ability to
deal in large quantities of crack. See id. The government’s
conduct in this case was not so outrageous as to
require leniency under § 3553(a).
2. Application of the Career Offender Guideline
Davis challenges the reasonableness of the district
court’s application of the career offender guideline. In
particular, Davis contends that sentencing him under
§ 4B1.1 is unreasonable because two of the three prior
drug felonies that qualified him as a career offender
occurred at a young age, involved relatively small
amounts of drugs, and resulted in relatively short periods
of incarceration. The problem for Davis, however, is that
the district court fully considered these factors when
examining Davis’ “extensive criminal history.” The court
simply discounted the relative brevity of Davis’ prior
sentences against the fact that “the sentences that you
have served certainly have not been a deterrent to your
conduct.” There was no abuse of discretion here.
Davis also challenges the district court’s conclusion
that he qualified as a career offender based on prior
convictions that were not proven beyond a reasonable
doubt. He argues that due process requires that sentencing
enhancements be based on only reliable facts, and
that prior convictions established by a mere preponderance
of the evidence are unreliable. However, rather
than developing a cogent due process claim, Davis’ brief
blends his argument for a reasonable doubt standard
with a discussion of the Sixth Amendment right to a
jury trial. We have repeatedly held that the Sixth Amendment
does not require that prior convictions supporting
a career offender classification be found by a jury beyond
a reasonable doubt. See Clanton, 538 F.3d at 654 (citing
Almendarez-Torres v. United States, 523 U.S. 224 (1998));
United States v. Sachsenmaier, 491 F.3d 680, 685 (7th Cir.
2007). We do not see how Davis’ argument, though
couched in terms of due process and the reasonableness
of his sentence, survives this precedent.
3. Cooperation with the Government
In his final challenge to the reasonableness of his sentence,
Davis argues that the district court abused its
discretion by failing to consider his cooperation with
the government. Prior to pleading in this case, Davis
discussed a plea agreement where, in exchange for disclosing
the details of the crime and serving as a witness,
the government would move for a reduced sentence
based on Davis’ “substantial assistance.” See U.S.S.G.
§ 5K1.1. The deal fell through, however, based on Davis’
desire to make other mitigation arguments at sentencing
and his failure to admit all of the details of the offense,
particularly that it involved crack cocaine. As a result,
the government declined to make a § 5K1.1 motion at
Davis’ sentencing.
We agree with Davis that, as a general matter, a district
court may consider a defendant’s cooperation with the
government as a basis for a reduced sentence, even if the
government has not made a § 5K1.1 motion. See United
States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006) (reasoning
that a district court should consider “the contention that
a defendant made efforts to cooperate, even if those
efforts did not yield a Government motion for a downward
departure pursuant to U.S.S.G. § 5K1.1”); United
States v. Doe, 398 F.3d 1254, 1260-61 (10th Cir. 2005) (concluding
that “a defendant’s assistance should be fully
considered by a district court at sentencing even if that
assistance is not presented to the court in the form of a
§ 5K1.1 motion”); cf. United States v. Blue, 453 F.3d 948,
954 (7th Cir. 2006) (recognizing the district court’s “obligation
to weigh the defendant’s cooperation . . . against the
other statutory sentencing factors” where the government
had made a § 5K1.1 motion). However, we
disagree that the district court in this case failed to give
sufficient consideration to Davis’ substantial-assistance
argument. The court simply rejected that argument in
favor of the government’s claim that “there were certain
things that [Davis] would not admit that were essential
to [his] cooperation.” The court’s decision to give more
credit to the government’s view of the extent of Davis’
cooperation was not an abuse of discretion.
C. Sentencing Entrapment and
Manipulation—Anthony
In addition to the Kimbrough argument that we have
addressed above, Anthony adopts Davis’ arguments
that the district court failed to adequately consider evidence
of sentencing entrapment and manipulation. As
with Davis’ analogous claims, we find that Anthony’s
sentencing entrapment and manipulation claims are
without merit. Along with Davis, Anthony negotiated
the guns purchase with the ATF agent and readily
agreed to the agent’s suggestion that the defendants pay
for the guns with crack instead of cash. The government
did not have to resort to “extraordinary inducements”
that would support a sentencing entrapment claim,
White, 519 F.3d at 347, and its conduct was not so outrageous
to support a sentencing manipulation claim,
Wagner, 467 F.3d at 1090.
III. Conclusion
Because no congressional directive prohibited the
district court from considering Davis’ and Anthony’s
sentencing argument based on the crack/powder
disparity affecting career offenders convicted of drug
conspiracy offenses under 21 U.S.C. § 846, we VACATE
these defendants’ sentences and REMAND for resentencing
consistent with this opinion. As for Armean’s case, we
order a LIMITED REMAND so that the district court may
follow the procedure described in United States v. Taylor,
520 F.3d 746, 748-49 (7th Cir. 2008), to address the effect
of both the 2007 Amendment to § 2D1.1 and Kimbrough on
Armean’s sentence. After resolving any motion for a
reduced sentence under 18 U.S.C. § 3582(c)(2) based on
the Amendment, the court should indicate whether it is
inclined to reduce Armean’s sentence under Kimbrough.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Alviar
Saul Tejeda, Juan Alviar, Jose
Melero, Rodolfo Madrigal, and Apolinar Delgado-Rios
were among a group of individuals indicted in connection
with an Aurora, Illinois drug conspiracy. While most
of the indicted individuals pleaded guilty, those five
defendants went to trial, where a jury convicted each as
charged. Tejeda is serving a 360 month prison sentence;
Alviar and Melero are serving 262 months; Madrigal is
serving 240 months; and Delgado-Rios is serving 121
months. Defendants appeal various aspects of their
consolidated trial and their sentences. We affirm on
all counts.
I. Background
In 2003, FBI agents began investigating a suspected drug
conspiracy in Aurora. The investigation focused on Tejeda
and his associates. The investigation eventually employed
cooperating witnesses; pen register information from
specific telephones; a court-authorized wiretap; ongoing
police surveillance; and several searches.
Based on evidence obtained, a grand jury returned its
second superseding indictment on November 17, 2005.
The indictment charged seventeen individuals, including
Tejeda, Alviar, Melero, Madrigal, and Delgado-Rios, with
conspiracy to possess and distribute cocaine in violation
of 21 U.S.C. § 846 (Count One). The indictment charged
Tejeda alone with five counts of distributing cocaine in
violation of 21 U.S.C. § 841(a)(1) (Counts Two through
Five, Seven); four counts of possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
(Counts Six, Eight through Ten); and one count of laundering
narcotics proceeds in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i) (Count Eleven). It charged Tejeda and
Alviar with two counts of attempting to possess cocaine
in violation of 21 U.S.C. § 846 (Counts Twelve and Thirteen).
Tejeda, Melero, and Madrigal were charged with
two counts of using a telephone to facilitate a narcotics
conspiracy in violation of 21 U.S.C. § 843(b) (Counts
Seventeen and Eighteen). The indictment charged Alviar,
by himself, with three counts of possession of cocaine
in violation of 21 U.S.C. § 841(a)(1) (Counts Fourteen
through Sixteen). Melero was charged individually with
two counts of unlawful possession of a firearm in violation
of 18 U.S.C. § 922(g)(1) (Counts Nineteen and
Twenty). Delgado-Rios was charged individually with
two telephone counts in violation of 21 U.S.C. § 843(b)
(Counts Twenty-Three and Twenty-Four).
The indictment stated that between 2000 and
March 2005, Tejeda was a wholesale distributor of
cocaine in Aurora, and he obtained and resold cocaine
in kilogram and ounce quantities. According to the indictment,
Tejeda’s co-defendants assisted him. Tejeda,
Alviar, Melero, and Madrigal first were members of the
Latin Homeboys street gang, and then they became
members of the Latin Kings, while Delgado-Rios was
part of Tejeda’s close family circle. Tejeda relied on his
fellow gang members and close family to serve as lookouts,
to direct him to customers, to store and transport
cocaine and money for him, and to help him steal cocaine
from others. The indictment further alleged that Tejeda’s
gang membership provided his operation with protection
from rivals; specifically Alviar and Melero specialized
in providing protection through their positions as
Latin King enforcers.
Tejeda and Melero moved pretrial to exclude gang
membership evidence as unduly prejudicial and of minimal
probative value. According to Tejeda, “evidence that
defendants are members of the Latin Homeboys or Latin
Kings is not especially probative of whether they jointly
ventured to distribute drugs to further the criminal
interest of the Latin Homeboys or Latin Kings,” and “the
missing link between the ‘gang’ and the ‘criminal activity’
distinguishes this case from other cases where gang
evidence was found admissible for the purpose of establishing
a joint venture or the existence of a conspiracy.”
The government in its consolidated response to defendants’
pretrial motions responded that: “[G]ang membership
in this case is part of the glue that held the charged
conspiracy together, and is therefore part-and-parcel of
the proof necessary to demonstrate that defendants had
a criminal intent and agreement to conspire.” The government
added that it would present witnesses to testify
that “the Aurora Latin King’s greatest source of revenue
was proceeds from cocaine sales, a fact supported by
the conspiracy evidence in this case.”
On May 3, 2006, the district court denied defendants’
motions to exclude evidence of gang membership without
placing restrictions on the prosecution’s use of
gang-related evidence. On May 9, Delgado-Rios filed a
motion objecting on Rule 403 grounds to “[a]dmission of
gratuitous gang activities.” The court denied the
motion without prejudice to raising the same objection
at trial.
Defendants’ consolidated trial commenced on May 16,
2006. It spanned eleven days. In its opening statement,
the government described Tejeda’s cocaine trafficking
organization and its relation to gangs: “One of the key
ways defendant Saul Tejeda protected himself and his
drug organization is by joining the Latin Kings street gang
in Aurora.”
The government introduced testimony of law enforcement
officers, lay witnesses, and cooperating defendants.
The government had wiretapped a telephone used by
Tejeda, and it played 189 calls at trial. It also introduced
seventeen undercover recordings made by cooperating
witnesses, which documented controlled purchases of
one ounce of cocaine from Tejeda on February 4 and
February 11, 2004; a sale by Tejeda of 2.8 grams of cocaine
on October 5, 2004; two sales of cocaine by Tejeda on
October 8, 2004; and a one ounce purchase on November
18, 2004. The recordings documented the possession
of two ounces of cocaine by Tejeda and Alviar on
February 11, and their attempt to purchase ten kilograms
of cocaine on February 15, 2005. They captured
Alviar’s statement that he was a “hood enforcer” for the
Latin Kings and that Melero was the “enforcer.”
The government introduced evidence that a search of
Melero’s house upon his arrest revealed a 9 mm pistol and
an SKS assault rifle. Searching Alviar’s house, agents
discovered drug paraphernalia and over 300 grams of
cocaine. There was evidence that, after his arrest,
Delgado-Rios stated that he was a money courier for a
drug dealer, that he purchased cocaine for personal use,
and that he had provided leads for drug robberies.
Cooperating defendant Andy Lopez testified that he
was a gang member with Alviar, Melero, Madrigal, and
Tejeda, as well as Tejeda’s roommate. He testified he
had known Tejeda was selling cocaine since at least 2000.
He witnessed Tejeda storing quarter-kilograms of cocaine
in their apartment, along with guns, a scale, and baggies.
Later, Tejeda would store cocaine with Lopez for him
to sell. Tejeda additionally rented an apartment for
Lopez in which to store cocaine and cash. In June 2004,
authorities raided and seized about half a kilogram of
cocaine.
Lopez testified that Tejeda had admitted robbing
another drug dealer to him. He also testified about a drug
robbery he committed with Melero, and about other
robberies Melero had attempted. He testified that
Madrigal purchased cocaine from Tejeda. Lopez witnessed
Tejeda discussing the purchase of cocaine from
Delgado-Rios and from Melero. He witnessed Alviar
sell two ounces of cocaine to Tejeda. Lopez made a
series of recordings with some of the defendants. On
cross-examination, Lopez stated that he did not know
what the Latin Kings had to do with the drug conspiracy
on trial.
Another cooperating defendant, Carlos Escalante,
testified that he had known Tejeda since 1998 and Alviar
since 2004. Escalante had long been a Latin King, and
he testified about the gang and the position of enforcer.
According to Escalante, the primary source of income
for the Aurora Latin Kings was cocaine distribution. He
testified about the takeover of the Latin Homeboys by
the Latin Kings. Escalante began selling cocaine upon
release from prison in 2004, buying from Tejeda once or
twice a week until October 2004. Escalante and Tejeda were
intercepted negotiating cocaine transactions; Escalante
interpreted the recordings for the jury. Escalante also
testified to seeing a handgun, cocaine, and a scale at
Tejeda’s house.
Cruz Samaniego next testified as a cooperating defendant.
Tejeda’s cousin, Samaniego had been a member of
the Latin Homeboys since 1999. He described how
Tejeda was a Latin Homeboy in 1996 and 1997 and how
Alviar, Melero, and Madrigal were Latin Kings. Samaniego
bought cocaine from Tejeda, Alviar, and Melero.
Samaniego and Tejeda were intercepted on the wiretap
negotiating cocaine transactions.
Heriverto Rios cooperated and testified that he was a
former Latin Homeboy and had known defendants for
years. He testified about drug robberies that he had been
told about involving Tejeda, Melero, Madrigal, and
Delgado-Rios. Rios testified that Tejeda supplied
Delgado-Rios with cocaine, and that Alviar, Melero, and
Madrigal also sold cocaine.
Under immunity, Carlos Olivares testified he was a
Latin King from 1989 through 2004. He stated that a
Latin Kings enforcer carries out punishments within the
gang and ensures gang members have firearms. He
testified that in December 2003 he witnessed Alviar,
armed, performing security for a Latin Kings meeting. In
March 2004, Olivares recorded a conversation in which
Alviar stated that he was the “hood enforcer” and Melero
was the enforcer. Olivares recorded Melero acting in
that capacity.
Defense counsel objected to gang evidence throughout
the trial, which included some 600 references to defen8
dants’ Latin Kings associations, and some 100 references
to defendants’ Latin Homeboys affiliations. Delgado-
Rios’ counsel made the following statement, which is
indicative of defense attorneys’ objections:
I made a motion in limine regarding the gang violence
and activities. And I’m aware that there’s several
paragraphs in Count One that say the structure of the
Latin Kings is being utilized in some fashion. And
I argued to your Honor that the structure of the gang
is not being used. There’s no nation days. There’s no—
money is not going to any treasurer. . . . We don’t
have spots where people are manning it 24 hours a
day, none of that stuff. Now, today—and we had a
little bit of an opening statement and then with this
agent. We started going back to like the Latin Kings
is some national enterprise that everyone in the
world should be afraid of. And he starts out big, you
know, at the academy we learned about the Latin
Kings, their organization and structure. Well, you
know, that is so prejudicial to this group that’s in a
small—we’re going to get a Mapquest, and it’s going
to be about a half a mile square. That’s what this case
is about, that half mile square. And I feel rivalries
between gangs, shootings between gangs, it’s all
right to say you’re carrying a gun to protect money or
drugs, but for protection from other gangs as if there’s
some kind of struggle in Aurora over drug turf is not
in this case. It’s extremely prejudicial, Judge. . . .
After some additional back-and-forth, Delgado-Rios’s
counsel moved for a mistrial. The district court denied
defense counsel’s motion, but it did address the government:
“I don’t want these people being, you know,
dragged into some sort of national gang conspiracy,
because that’s not what it is. That’s not what you’ve
represented it to be. That’s not what you’ve alleged in
the indictment, and it’s not what will be admitted in this
case.”
During Lopez’s testimony, counsel objected to testimony
about “gang stuff and the gang structure,” and to testimony
about the role of enforcer. The district court overruled
the objection, saying “I know there’s a line that
can be crossed, and I’ll keep my ears open for that. But
I haven’t seen it yet.” The court allowed testimony about
the role of enforcer, saying, “It was a pretty general
question about rank and what that means, what those
terms mean, but without any graphic detail, gratuitous
or otherwise . . . .”
In response to an additional objection about testimony
regarding gangs and “gang violence,” the government
explained that the evidence would show “the nature of
the relationship between defendants Saul Tejeda and
Juan Alviar . . . . Alviar had a particular role in this drug
conspiracy, and the role was to protect Saul Tejeda . . . .”
The district court overruled the objection and stated,
“I think the government should be allowed the opportunity
to try to put this mosaic together if they can. And
if they can’t, we’ll deal with that in due course.”
Later, in responding to objections about gang evidence,
the district court stated that it had already ruled that the
evidence would be admitted, but admonished the government
to lay a better foundation for the testimony. The
court continued, “As far as the gang being part of this
case, it is part of this case. It’s not in the traditional
sense . . . that . . . I have dealt with in some other cases.
It is part of this case.”
Post-trial, the district court again addressed the gang
evidence, stating:
I ruled earlier, and I see no reason to change my
ruling now, that this evidence was proper as admitted
in this case to show the interrelationship among
these defendants, especially since this was a conspiracy
case, and the theory of the case was that the
gang and the changing from the Home Boys to the
Latin Kings by some of the defendants, not all of the
defendants[,] was integral to understanding the
interrelationship between these defendants. The
evidence was limited, and it wasn’t introduced for
the purpose and didn’t in my view unduly prejudice
these defendants. The evidence clearly established
who was and who wasn’t a gang member and what
gang they were affiliated with and the extent of the
gang activity that related to the charged conspiracy.
I don’t minimize or belittle the defendants’ concern
about this. I know this is evidence that could be
highly prejudicial if it were not otherwise relevant.
I just think it was in this case . . . . [I]t was part of the
interrelationship between these people.
The jury returned its verdict on June 19, 2006. Alviar,
Madrigal, Melero, Delgado-Rios, and Tejeda were convicted
as charged in the second superseding indictment.
Between August 9 and August 18, 2006, Alviar, Madrigal,
Melero, Delgado-Rios, and Tejeda moved for judgment
of acquittal and/or a new trial. The district court denied
those motions. The court sentenced appellants on May 24,
2007.
II. Analysis
Alviar, Madrigal, Melero, Delgado-Rios, and Tejeda filed
notices of appeal. We consolidated defendants’ appeals
and instructed them to file a joint brief covering common
issues, and to file individual supplemental briefs if necessary.
In their joint brief, defendants argue that the
district court abused its discretion in allowing evidence
of gang membership. We address that common issue
first. Defendants then raise various other challenges to
their trial and sentences in their individual supplemental
briefs, which we address in turn, providing additional
background information when it is needed.
A. Whether the district court abused its discretion in
allowing evidence of gang membership.
Defendants claim that the district court abused its
discretion when it: (1) allowed the introduction of unduly
prejudicial gang evidence; (2) placed no limits on the
introduction of gang evidence; and (3) failed to analyze
such evidence under Fed. R. Evid. 404(b). They claim
that the court at the pretrial stage overlooked Seventh
Circuit case law that such evidence is prejudicial. They
continue that during the trial, the court never “made the
difficult calls that are required by Fed. R. Evid. 404(b).”
Defendants cite several Seventh Circuit cases to support
their argument. E.g., United States v. Hardin, 209 F.3d 652,
663 (7th Cir. 2000) (“Charging a drug conspiracy that
involves gang members . . . does not give the government
carte blanche to splash gang references throughout the
trial.”); United States v. Irvin, 87 F.3d 860, 865 (7th Cir.
1996); United States v. Rodriguez, 925 F.2d 1049, 1053
(7th Cir. 1991) (“[E]vidence of membership in a street
gang is likely to be ‘damaging to [a defendant] in the
eyes of the jury.’ ”) (quoting United States v. Lewis, 910
F.2d 1367, 1372 (7th Cir. 1990)).
The government acknowledges that evidence of gang
affiliation may be highly prejudicial, but it argues that
such evidence is admissible when relevant to demonstrate
the existence of a joint venture or conspiracy and
a relationship among its members. The government cites
United States v. Suggs, 374 F.3d 508, 516 (7th Cir. 2004), to
argue that gang evidence is “particularly relevant” in
conspiracy cases, where the relationships of the defendants
is a central issue. It claims that the district court did
place limits on the gang evidence, and the evidence
admitted was not unduly prejudicial. The government
also contends that defendants forfeited their Rule 404(b)
argument and in any event the gang evidence was not
404(b) evidence.
Our review of the district court’s gang evidence
decisions is for abuse of discretion. Rodriguez, 925 F.2d at
1053. “We give special deference to a trial judge’s evidentiary
rulings ‘because of the trial judge’s first-hand exposure
to the witnesses and the evidence as a whole, and
because of the judge’s familiarity with the case and ability
to gauge the impact of the evidence in the context of the
entire proceeding.’” United States v. Hernandez, 330
F.3d 964, 969 (7th Cir. 2003) (quoting United States v.
Van Dreel, 155 F.3d 902, 905 (7th Cir. 1998)).
We have recognized there is “substantial risk of unfair
prejudice attached to gang affiliation evidence,” but
“under appropriate circumstances, gang evidence has
probative value warranting its admission over claims of
prejudice.” Irvin, 87 F.3d at 864. In the Seventh Circuit,
“[e]vidence of gang affiliation is admissible in cases in
which it is relevant to demonstrate the existence of a
joint venture or conspiracy and a relationship among its
members” and each defendant’s knowledge of and participation
in the drug conspiracy. United States v. Westbrook,
125 F.3d 996, 1007 (7th Cir. 1997). “Gang affiliation is
particularly relevant, and has been held admissible, in
cases where the interrelationship between people is a
central issue” such as in a conspiracy case. United States
v. Thomas, 86 F.3d 647, 652 (7th Cir. 1996) (affirming
ruling allowing gang evidence because that evidence
“helped demonstrate the existence of the conspiracy
and the connections between members of the conspiracy”);
see also United States v. Sargent, 98 F.3d 325, 328 (7th Cir.
1996) (“[G]ang membership can be key to establishing
criminal intent or agreement to conspire.”).
In this case, the evidence that the government submitted
was relevant to proving the conspiracy allegations
set forth in the indictment. The evidence established
that Tejeda was a drug dealer who employed a network of
associates to obtain and to distribute the drugs, and that
the majority of individuals that made up the network
were in the Latin Homeboys and/or the Latin Kings
with Tejeda. For example, the evidence established that
Alviar and Melero had been Latin Homeboys with Tejeda,
and later became Latin Kings with Madrigal and him. The
fact that these four individuals were bound together by
their gang membership made it more likely that they
participated in a conspiracy. Testimony also established
a link between gang membership and protection. While
Tejeda once had expressed concerns about being robbed,
after he became a Latin King, he did not express the
same concerns. The evidence supported the argument
that he no longer was concerned because Alviar and
Melero, as Latin King enforcers, provided protection.
Madrigal cites United States v. Avila, 465 F.3d 796, 798 (7th
Cir. 2006), to argue that the government and the district
court confused evidence of membership in the gang
with evidence of membership in the conspiracy. In that
case, there was “negligible evidence” that the defendant
belonged to a gang, but even if the defendant was a gang
member, there was “no evidence” that he was a part of
the conspiracy; the trial court erred in assessing his relevant
conduct based on gang membership alone. Here, by
contrast, the government elicited testimony to show that
Tejeda’s drug trafficking operation used gang members
in certain defined roles. The government did not
simply equate any membership in the gang with being a
co-conspirator. The government’s use of gang evidence
was not improper in the instant case.
Defendants argue that, even if it was proper for the
district court to admit some gang evidence, the court
should have placed additional limits on the gang
evidence that the government sought to introduce. They
claim that the court permitted the government to do
much more than simply “complete the story” of how the
defendants came to know each other. For example, defendants
argue that the court should have limited the evidence
so that the government did not mention specific
gang names or launch into a litany of violent acts both
by and against the defendants.
As a preliminary matter, we note that the district court
in fact did place certain limits on the gang evidence. In
some instances, the court kept out gang evidence that
was either irrelevant or unduly prejudicial. For example,
when the government sought to admit a table bearing
gang graffiti recovered from Melero’s basement, the
court barred its admission. When the government elicited
testimony from an FBI case agent that of the hundreds of
witnesses he had interviewed “virtually all” had tied the
gang’s activities to drug dealing, the court sustained an
objection and instructed the jury to disregard the answer.
When the government elicited testimony from
Escalante about Latin Kings’ drug dealing, the court
allowed Escalante to testify to the gang’s activities when
he was involved, while sustaining objections to testimony
about gang activities while he was incarcerated. The
court admonished the government to elicit a specific
foundation for testimony about gang activities: “They’re
holding you to your proof. You know, they haven’t held
you to . . . the letter of the rules of evidence for every
thing in this case, but this time they are. This is a very
sensitive subject, and I think you have to lay the foundation
properly when you ask him or anybody else in this
case for this type of testimony.”
The evidence that the district court admitted was probative
of defendants’ roles in the Tejeda drug organization.
Even the evidence of Latin King handshakes, symbols,
colors, and tattoos tended to establish gang membership
or affiliation, and it was proper for the government to
prove gang membership as part of the conspiracy. Thus,
we do not conclude that the court abused its discretion
when it did not further limit the government’s evidence.
Finally, defendants’ argument that the district court
failed to analyze the gang evidence under Rule 404(b) was
forfeited, as it was never raised below, and we review it
for plain error. United States v. LeShore, 543 F.3d 935, 939
(7th Cir. 2008). The contested evidence proved specific
portions of the indictment. It did not concern “other
crimes, wrongs or acts,” but it concerned the charged
crime. When evidence is embraced by the conspiracy in
the indictment, the court need not resort to Rule 404(b)
analysis. “Rule 404(b) is inapplicable where the ‘bad acts’
alleged are really direct evidence of an essential part of
the crime charged.” United States v. Lane, 323 F.3d 568, 579
(7th Cir. 2003). The gang evidence was not actually Rule
404(b) evidence, and the court did not commit plain
error when it did not analyze the evidence under
Rule 404(b).
B. Whether the district court properly refused to
sever defendant Madrigal, who was indicted as a
co-conspirator.
On August 18, 2005, Madrigal filed a motion for severance
and a separate trial under Fed. R. Crim. P. 14, arguing
that he would be prejudiced by undergoing a trial where
there was “a gross disparity in both the amount and type
of evidence against Madrigal vis-a-vis his co-defendants.”
A joint trial, Madrigal claimed, would be “fundamentally
unfair.” The government filed its response on the severance
issue on February 10, 2006. On May 10, in its
Pretrial Hearing Order, the district court denied
Madrigal’s motion for severance.
Madrigal appeals denial of his severance motion. He
argues that the district court should have severed him
because of: (1) “spillover” of the government’s evidence;
(2) prejudicial effect of inflammatory evidence of racial
slurs by defendants; (3) prejudicial gang membership
and violence evidence; and (4) “other crimes” and
weapons evidence only relevant to other defendants.
Madrigal never renewed his motion at the close of the
evidence. According to our case law, unless a motion to
sever is renewed at the close of the evidence, it generally
is waived. See United States v. Rollins, 301 F.3d 511, 518
(7th Cir. 2002). A waiver of this nature would preclude
appellate review of any kind. See United States v. Olano, 507
U.S. 725, 733 (1993). However, the failure to renew a
motion to sever may be excused if the defendants can
“demonstrate that refiling [the motion to sever] would
have been . . . futile.” United States v. Caudill, 915 F.2d 294,
298 (7th Cir. 1990). Madrigal does not explicitly argue that
renewing the motion to sever would have been futile, but
he does state: “[C]ontrary to the government’s claim
that the issue was not preserved by a renewed motion at
the close of the evidence, the district court had been
apprised of the issue for so long, both before and during
the trial, the district court had to be fully aware that
severance was still a viable, pending issue for Madrigal
which could still be remedied by spinning his separate
trial off to another occasion.” In this case, the defense
constantly challenged the admission of gang-related
evidence—before, during, and after trial—on the grounds
that it was prejudicial. One more motion may have
been futile, but we need not decide whether Madrigal’s
motion to sever was waived, as our answer to that
question is not outcome determinative.
Even if Madrigal’s entire motion to sever was not
waived, his second, third, and fourth arguments on appeal
are forfeited. Madrigal never argued below that the district
court should have severed him because of (2) the prejudicial
effect of other defendants’ use of racial slurs on the
wiretap recordings; (3) the prejudicial nature of the gang
evidence introduced at trial; and (4) the prejudicial effect
of certain evidence against Alviar, Melero, and Renteria.
We review arguments (2), (3), and (4) for plain error.
We review argument (1), that the district court should
have severed him because of the spillover effect from
evidence against co-defendants, for abuse of discretion.
See United States v. McClurge, 311 F.3d 866, 871-72 (7th
Cir. 2002).
In all but the “most unusual circumstances,” the risk of
prejudice arising from a joint trial is “outweighed by the
economies of a single trial in which all facets of the
crime can be explored once and for all.” United States v.
Velasquez, 772 F.2d 1348, 1352 (7th Cir. 1985). There is a
strong preference that co-conspirators be jointly tried,
particularly when they were indicted together. See United
States v. Souffront, 338 F.3d 809, 828 (7th Cir. 2003). Joint
trials “promote efficiency and ‘serve the interests of
justice by avoiding the scandal and inequity of inconsistent
verdicts.’” Zafiro v. United States, 506 U.S. 534, 537
(1992) (quoting Richardson v. Marsh, 481 U.S. 200, 209-10,
(1987)). A district court has discretion to sever counts or
defendants for trial. Fed. R. Crim. P. 14(a). We will overturn
a denial of a motion to sever only if actual prejudice
resulted. Souffront, 338 F.3d at 831.
Madrigal’s first argument relates to the spillover effect
of the evidence against his co-defendants. He claims that
the district court overlooked the “massive amount” of
evidence, witness testimony, and intercepted telephone
call trial evidence targeted at proving the guilt of his
co-defendants to his prejudice. But the fact that the government
has greater evidence against one co-defendant
does not automatically give the other defendant grounds
for severance. United States v. Studley, 892 F.2d 518, 524
(7th Cir. 1989). Given that Madrigal was charged in a
conspiracy with his co-defendants, most evidence
offered at trial would have been admissible in a trial
against him alone. The jury was instructed to consider
each defendant separately. It did so and convicted Madrigal
of a lesser drug quantity than his co-defendants. There
was no actual prejudice to Madrigal on account of
“spillover” evidence because the jury distinguished
between him and his co-defendants. United States v.
Thompson, 286 F.3d 950, 968 (7th Cir. 2002).
One of Madrigal’s forfeited arguments is that he
should have been severed because the tape recordings
showed that defendants used variations of the “N” word
when speaking. Madrigal argues that the remarks were
“racially offensive,” and that his co-defendants used the
terms more than he did. But, as the district court stated, the
use of the terms “occurred during the conversations, and
it was the manner in which they spoke to each other
during the pertinent conversations.” The court found
that the terms were not meant to be racially offensive.
The court also concluded it would not have been feasible
to redact offensive words from hundreds of recordings. It
was not plain error for the court not to sever Madrigal
based on defendants’ use of those words in recorded
conversations. He did not suffer actual prejudice, as
there was ample evidence against Madrigal and the
jury was properly instructed to distinguish between
co-defendants. Similarly, Madrigal’s additional arguments
do not demonstrate that the district court plainly erred
when it denied Madrigal’s motion to sever.
C. Whether the district court properly accepted the
government’s Santiago proffer.
Delgado-Rios raises a claim related to the government’s
Santiago proffer. Under Fed. R. Evid. 801(d)(2)(E), a
“statement is not hearsay if . . . [t]he statement is offered
against a party and is . . . a statement by a coconspirator of
a party during the course and in furtherance of the conspiracy.”
In United States v. Santiago, 582 F.2d 1128, 1130-31
(7th Cir. 1978), we decided that when a statement of a
co-conspirator which otherwise would be regarded as
hearsay is proffered by the government, Fed. R. Evid.
104(a) requires that the district court make a preliminary
determination regarding the admissibility of the declaration.
We made clear that as a condition for admission of
such statements, the government must convince the
court, by a preponderance of the evidence, that (1) a
conspiracy existed, (2) the defendant and the declarant
were members of the conspiracy, and (3) the statement(s)
sought to be admitted were made during and in furtherance
of the conspiracy. Id. at 1133-34; see also United States
v. Cox, 923 F.2d 519, 526 (7th Cir. 1991). The government
may submit evidence of these elements in a pre-trial
proffer, and the district court may admit the statement(s)
subject to its later determination during trial that the
government has established by a preponderance of the
evidence the three foundational elements. Santiago, 582
F.2d at 1131. These evidentiary submissions are known
as “Santiago proffers.”
Delgado-Rios argues that the district court erred by
accepting a “woefully inadequate” Santiago proffer. He
claims the proffer was “in the most general terms” and
“perfunctory.” Findings under Fed. R. Evid. 801(d)(2)(E)
based on a Santiago proffer are reviewed for clear error.
United States v. Rodriguez, 975 F.2d 404, 411 (7th Cir. 1992).
The government’s written proffer contained a preview of
the evidence as to all defendants, including Delgado-Rios.
The proffer summarized cooperator Lopez’s anticipated
testimony, stating Lopez “knew co-defendant Apolinar
Delgado-Rios to buy cocaine from Tejeda and resell it.
Lopez also knew Tejeda to front cocaine to Delgado-Rios.
Lopez also knew Delgado-Rios to pass along information
to Tejeda about who was storing cocaine and where it
was being stored so that Tejeda and others could commit
drug robberies, in exchange for a portion of the robbery
proceeds.” The proffer summarized Rios’s testimony that
“Tejeda distributed a minimum of two ounces of cocaine
to co-defendant Apolinar Delgado-Rios . . . at least three
times a month. Rios also saw Delgado-Rios resell the
cocaine he bought from Tejeda to other persons.” The
proffer included summaries of calls that recorded
Delgado-Rios and Tejeda carrying out their drug business.
Based on the information in the proffer, the district
court did not commit clear error in concluding that the
government had met by a preponderance of the evidence
the preconditions for admission of co-conspirator statements.
D. Whether the district court committed plain error in
allowing Agent Camacho to testify about the
prior consistent statement of a witness who was
alleged to have fabricated testimony about
Delgado-Rios.
Delgado-Rios next raises his first evidentiary error claim.
Cooperating witness Rios had testified that Delgado-Rios
had complained about being unsatisfied with his take
from a drug robbery that Delgado-Rios had tipped Tejeda
and others about. Rather than cross-examining Rios on
that point, Delgado-Rios attempted to impeach Rios by
calling Agent Larissa Camacho, one of the case agents, to
testify about an interview that she conducted with Rios.
Camacho’s report reflected that Rios had said that his
brother, Miguel Rios, expressed dissatisfaction with his
take from the robbery, and not that Rios mentioned
Delgado-Rios was unsatisfied.
On cross-examination of Camacho, the prosecution
elicited the fact that Rios had mentioned Delgado-Rios
to Camacho in addition to Miguel Rios, although
Camacho’s report did not reflect that fact. Delgado-Rios
objected that this fact was “already testified to by the
witness, Rios.”
Delgado-Rios now argues on appeal that Camacho’s
testimony about the interview of Rios was improper
hearsay, that it erroneously allowed her to “impeach
her own report,” and that it introduced inadmissible
opinion evidence about the veracity of Rios. These objections
were not raised below, so we review for plain
error. Rollins, 544 F.3d at 834.
Prior consistent statements that are offered to rebut a
charge of recent fabrication or improper influence or
motive are not hearsay. Fed. R. Evid. 801(d)(1)(B); Tome v.
United States, 513 U.S. 150, 157-58 (1995). Such statements
are admissible if they satisfy a four-part test: (1)
the declarant testifies at trial and is subject to crossexamination;
(2) his prior statement is indeed consistent
with his trial testimony; (3) the statement is offered to
rebut an explicit or implicit accusation of recent fabrication;
and (4) the statement was made before the declarant
had a motive to fabricate. United States v. Ruiz, 249
F.3d 643, 647 (7th Cir. 2001).
Rios’s prior statement to Camacho satisfies the test. His
statement was consistent with his trial testimony and
was used to rebut Delgado-Rios’s implied charge that
Rios had fabricated his testimony. There is no indication
that Delgado-Rios was prevented from recalling Rios
for cross-examination about the assertions attributed to
Rios by Camacho, and because those assertions meet the
other requirements for admission under Rule 801(d)(1)(B),
the district court did not commit plain error in allowing
Camacho’s statement.
E. Whether the district court erred in allowing
Delgado-Rios’s mother-in-law to testify that he
possessed cocaine.
Delgado-Rios next argues that the district court erred
when it allowed prejudicial testimony from his
mother-in-law, Metsi Thomas. Thomas testified to two
incidents. Following Delgado-Rios’s arrest, she found
cocaine “in the battery compartment of an object.” And
Delgado-Rios once handed her a cellphone concealing
cocaine. Both incidents occurred during the charged
conspiracy. The court did exclude testimony that the
“object” in the first incident was a child’s toy, but the
court permitted Thomas to testify that Delgado-Rios did
not have a regular job and that he tricked agents who failed
to locate cocaine hidden in the battery compartments of the
cellphone and the object. Delgado-Rios objected to testimony
related to the first incident, but not to the second, so
we review admission of testimony on the first incident for
abuse of discretion, and admission of testimony on the
second for plain error.
Thomas’s testimony, which focused only on incidents
that occurred during the conspiracy, was relevant to prove
Delgado-Rios’s participation in the conspiracy. The
testimony helped prove that Delgado-Rios had access to
cocaine. There was separate evidence that Delgado-Rios
was in contact with Tejeda to supply him with cocaine.
Having addressed the possible prejudice from the fact that
drugs were concealed in a toy on one occasion, the district
court did not abuse its discretion or commit plain error by
allowing testimony directly relevant to the conspiracy.
F. Whether the prosecutor improperly vouched for
witnesses or improperly referenced facts not presented
to the jury.
Delgado-Rios next argues that the government improperly
vouched for its witnesses and improperly referenced
facts not presented to the jury.
First, he argues that it was improper for the prosecutor
to elicit testimony from cooperating witnesses about their
“need to give truthful testimony in order to maintain the
benefits of the witness’ plea bargain.” We have concluded
that the “prosecution is entitled to get into evidence the
fact that [plea] deals are conditioned upon truthful testimony.”
United States v. Thornton, 197 F.3d 241, 251-52 (7th
Cir. 1999). Two types of “vouching” are forbidden: a
prosecutor may not express her personal belief in the
truthfulness of a witness, and a prosecutor may not
imply that facts not before the jury lend a witness credibility.
United States v. Renteria, 106 F.3d 765, 767 (7th Cir.
1997). Neither type was committed here. We did caution
in Thornton that “for more than a decade we have been
warning prosecutors to ‘avoid unnecessarily repetitive
references to truthfulness if it wishes to introduce the
agreements into evidence. . . .’ [P]rosecutors should
consider refraining from introducing the documents
into evidence and rely instead on testimony summarizing
the agreement.” Thornton, 197 F.3d at 253 (quoting
United States v. Lewis, 110 F.3d 417, 421 (7th Cir. 1997)).
In this case, the government did not even introduce
the plea agreements themselves. It merely elicited testimony,
which does not constitute error.
Delgado-Rios argues that the government improperly
vouched for its cooperating witnesses when it referenced
the plea deal conditions in its closing argument to the
jury. The prosecutor stated:
More important, these witnesses told you that if they
lied, they jeopardized the deal that they had with
the government. And where they did lie, where they
have told inconsistent statements, they have admitted
it to you. So you have all of these tools available
to you to evaluate their testimony, the fact
that they’re corroborated, the fact that they have no
motivation to lie, and the fact that they have been
honest as they came into this courtroom. They did
their best, and they tried to tell the truth.
The comments made here focus on the incentives provided
by defendant’s plea agreement for him to tell the
truth. They resemble a similar argument about a plea
agreement that we accepted in Renteria. There, we concluded
that “the prosecutor was free to invite the jury to
draw a particular inference from [the plea agreement].
Defense counsel was free to urge a competing inference,
as he did on numerous occasions. By arguing as they
did, both sides respected the jury’s ability to evaluate
credibility based on the facts in evidence.” Renteria, 106
F.3d at 766-67 (internal citations omitted). The prosecutor
here did not express a “personal belief,” and we conclude
that the prosecutor’s statement was not improper
vouching.
Delgado-Rios also argues that the prosecutor implied
that facts not before the jury lent a witness credibility.
First, he cites the prosecution’s argument that Delgado-
Rios was guilty of the conspiracy based on wiretapped
calls: “You also know that he was in the conspiracy first
from the phone calls, 20 phone calls from the wiretap, 916,
930, 932, 938, and so on. . . . These are only some of the
calls among the calls that were recorded in which Saul
Tejeda and Apolinar Delgado-Rios discuss cocaine trafficking.”
The prosecution later clarified that it was referring
the jury to consider only “the phone calls that
were played in court.” The government argues that its
references to additional phone calls did not include an
improper reference to evidence outside the record; it
was an inartful way of saying that calls 916, 930, 932,
and 938 were “only some of the calls among the calls that
were recorded.” We “must not lightly assume that ‘a
prosecutor intends an ambiguous remark to have its
most damaging meaning or that a jury, sitting through
a lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.’ ” United States
v. Rose, 12 F.3d 1414, 1424 (7th Cir. 1994) (quoting Boyde
v. California, 494 U.S. 370, 385 (1990)). We cannot conclude
that this statement about phone calls constituted
improper vouching.
Finally, Delgado-Rios argues that another remark made
by the government in closing was improper vouching:
“You heard then from only four customers of this conspiracy.
As with the phone calls, we didn’t present you
with 100 percent of the evidence, because we would still
be listening to testimony from cooperating witnesses.”
The government concedes that this statement was improper
because it refers to evidence not presented to the
jury as supporting conviction. With this concession, we
examine the record as a whole to decide whether
Delgado-Rios was prejudiced by the prosecutor’s inappropriate
remark so that his trial was fundamentally
unfair. Our inquiry into the prejudice is informed by
several factors, including: “(1) the nature and seriousness
of the prosecutorial misconduct, (2) whether the
prosecutor’s statements were invited by impermissible
conduct by defense counsel, (3) whether the trial court
instructed the jury to disregard the statements, (4) whether
the defense was able to counter the improper arguments
through rebuttal, and (5) the weight of the evidence
against the defendant.” United States v. Pirovolos, 844
F.2d 415, 426 (7th Cir. 1988) (reciting the factors outlined
in Darden v. Wainwright, 477 U.S. 168, 181-83 (1986)).
The improper remark made by the government was
serious and the district court did not issue instructions to
the jury to disregard the statement. However, defense
counsel had an opportunity to refute the prosecution’s
comment in its own closing argument and the prosecution
did not reference that statement again in its rebuttal.
More importantly, the overwhelming evidence
of Delgado-Rios’s guilt “eliminates any lingering doubt
that the prosecutor’s remarks unfairly prejudiced the
jury’s deliberations or exploited the Government’s
prestige in the eyes of the jury.” United States v. White,
222 F.3d 363, 371 (7th Cir. 2000) (quoting United States
v. Young, 470 U.S. 1, 19 (1985)). We conclude that the
government’s improper remark did not render Delgado-
Rios’s trial fundamentally unfair.
G. Whether the district court properly allowed testimony
that Tejeda was a felon.
Tejeda argues that the district court erred in allowing
evidence that he was a convicted felon. His attorney
objected, and we review for abuse of discretion.
Sergeant Johnson testified that on October 12, 2004,
he participated in a search of a house Tejeda shared
with his girlfriend, Adrianne Potochney. Tejeda was not
home. Authorities recovered a box of ammunition. On
cross-examination, defense counsel asked:
Q: It’s not illegal to keep ammunition in the house, is
it?
A: It is in certain circumstances, yes.
Q: Is there a law in Aurora that it’s illegal to keep
ammunition in a house?
A: There is a state law that forbids possession of
firearms and ammunition by felons.
Q: Is Adrianne Potochney, is she a felon?
A: Not that I’m aware of.
On redirect, the government asked:
Q: You were asked if Adrianne Potochney was a
convicted felon?
A: Yes, I was.
Q: Is there anyone else who lived in the residence at
1000 Superior Street who was a convicted felon?
DEFENSE COUNSEL MR. NEELY: Objection, Your
Honor.
A.U.S.A.: Judge, I do believe that Mr. Neely opened
the door.
Mr. NEELY: I don’t think that I did.
THE COURT: Overruled.
A: I believe Saul Tejeda was a felon.
The government argues on appeal that defense counsel
did open the door, justifying the district court’s decision
to admit the testimony at issue. The defense argues
the decision was improper.
In United States v. Draiman, we wrote that “opening the
door” is a risk that a defense counsel assumes “when a
calculated effort is made to tiptoe over thin ice to gain
some evidentiary advantage. It also can be a delicate
situation for the trial court’s exercise of discretion so as
not to permit undue prejudice to the defendant merely
to correct some possible jury impression that may be
of no lasting consequence.” We continued: “The government . . .
does not have to turn the other cheek when
it has the explanation to defense-created misimpressions.
The trial court needs to use its seasoned trial
experience in a common sense, realistic consideration of
the problem.” 784 F.2d 248, 255 (7th Cir. 1986).
Here, Tejeda argues that the cross-examination highlighted
“the fact that Tejeda’s girlfriend was in possession
of the premises at the time of the search” and that
the search did not result in her arrest. According to
Tejeda, he was “not attempting to place some innocent
gloss on Tejeda’s possession of ammunition.” If he
wanted to focus on the girlfriend, however, Tejeda
would not have asked about the legality of possession of
ammunition. By doing so, Tejeda opened the door somewhat,
and the government sought to clear up the defense-
created misimpression. The district court exercised
its discretion and admitted the testimony. The
government did not dwell on the answer, either by attempting
to go into details about Tejeda’s prior conviction
or by arguing the conviction in its closing argument.
We cannot conclude that the trial judge abused his
discretion.
H. Whether the district court properly refused to
bifurcate the trial into guilt and drug quantity
phases.
On the penultimate day of trial, Melero moved to
bifurcate the guilt and drug quantity phases, arguing that
otherwise he would have to simultaneously argue that
he was not a member of a drug conspiracy as charged but,
that if he was, “he was not involved in the quantities of
drugs charged by the Government.” The district court
denied the motion, stating, “I don’t see the prejudice
frankly.” Melero argues on appeal that the court violated
his Fifth and Sixth Amendment rights and otherwise
abused its discretion by failing to bifurcate the issues of
guilt and drug quantity. A trial court has discretion to
decide whether to bifurcate a trial, and we evaluate
denial of a motion to bifurcate for abuse of discretion.
See Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir.
2000).
As the district court recognized here, it’s not clear
that Melero’s arguments were even inconsistent: to argue
that he was not a member of the conspiracy did not
amount to conceding drug quantity, nor did arguing the
drug quantity require an admission of guilt on the conspiracy.
The court did not abuse its discretion in
denying Melero’s motion.
I. Whether the district court properly admitted a
co-conspirator statement by Alviar that he and
Melero were enforcers in the Latin Kings.
Cooperating witness Olivares testified that he had been
a Latin King in Aurora who was imprisoned until
August 2003. On being released from prison, Olivares
began cooperating with the FBI. On March 25, 2004,
Olivares recorded a conversation with Alviar in which
Alviar stated: “Me and Pep Dog [Melero] got those
spots. He’s the enforcer, I’m hood enforcer.” Olivares
described those enforcer positions as high positions.
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 33
The defense objected to the recording on the ground
that Alviar’s statements to Olivares were not made in
furtherance of the conspiracy and were admissible only
against Alviar. The district court admitted the recording.
Melero appeals. He argues that the court abused
its discretion by permitting conversations with a confidential
informant for the government into evidence
under 28 U.S.C. § 801(d)(2)(E).
In conspiracy cases statements that are “part of the
information flow between conspirators intended to help
each perform his role” satisfy the “in furtherance” requirement
of Rule 801(d)(2)(e). Garlington v. O’Leary, 879
F.2d 277, 283 (7th Cir. 1989) (quoting United States v. Van
Daal Wyk, 840 F.2d 494, 499 (7th Cir. 1988)). Such statements
include those made to alert members to the
progress of the conspiracy and their roles in it. See
United States v. Hunt, 272 F.3d 488, 495-96 (7th Cir. 2001).
The district court had ample grounds to conclude that
Alviar’s statement to Olivares furthered the conspiracy.
J. Whether the district court clearly erred in attributing
more than 150 kilograms of cocaine to Tejeda
for sentencing purposes and in assessing him an
enhancement for being a leader or organizer of
extensive criminal activity.
Tejeda was sentenced at a base offense level of 38 based
on a finding that the cocaine involved in the conspiracy
and chargeable to Tejeda totaled 171.6 kilograms. Among
other enhancements, the district court enhanced Tejeda’s
offense level by four points pursuant to U.S.S.G. § 3B1.1(b)
based on a finding that he was an organizer or leader
of criminal activity involving five or more participants.
Tejeda argues on appeal that he is entitled to resentencing
because the court erred in its drug quantity
calculations and in enhancing his offense level based on
its finding that he was an organizer or leader. We review
a court’s factual findings at sentencing for clear error.
United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005).
In terms of drug quantity, the government relied on
testimony of cooperating witness Lopez to make its
calculations. Lopez testified that from approximately
January to September 2000, Tejeda dealt between
one-quarter and one-half ounce of cocaine per week. The
mid-point of this range is 10.5 grams, and 10.5 grams
times 39 weeks amounts to 409.5 grams. From approximately
October 2000 to December 2001, Lopez testified,
Tejeda dealt approximately 1/8 kilo per week, and
126 grams times 65 weeks amounts to 8,190 grams. From
approximately January to June 2002, Tejeda dealt approximately
1/4 kilo per week, and 250 grams times 22
weeks amounts to 5,500 grams. And from approximately
July 2002 to March 2005, Tejeda dealt one to two kilograms
per week, and one kilogram times 142 weeks
amounts to 142,000 grams. Tejeda, Madrigal, Melero, and
Delgado- Rios also stole some 4 kilograms, and defendants
Tejeda, Alviar, and Heriverto Rios attempted to purchase
10 kilograms of cocaine as part of the conspiracy.
The district court stated:
[T]hese were not kilogram transactions. They were
small, relatively small transactions. . . . But it’s still
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 35
enough to max out on the threshold of the 38 offense
level under the guidelines. . . . [T]hey were small
quantity transactions, but they occurred over an
awfully long period of time, and that’s how it adds
up, just so the record is clear about that.
We analyze the district court’s finding for clear error.
The court was “entitled to estimate drug quantity using
testimony about the frequency of dealing and the amount
dealt over a specified period of time.” United States v.
Hernandez, 544 F.3d 743, 746 (7th Cir. 2008) (quoting
United States v. Noble, 246 F.3d 946, 952 (7th Cir. 2001)).
While a defendant must be sentenced on the basis of
reliable information, United States v. Bautista, 532 F.3d
667, 672 (7th Cir. 2008), and a court may not base its
calculation on pure speculation, United States v. Jarrett,
133 F.3d 519, 530 (7th Cir. 1998), the court may use a
reasonable estimate of the drug quantities. United States
v. Krasinski, 545 F.3d 546, 552 (7th Cir. 2008). The court’s
finding that Tejeda was responsible for more than 150
kilograms of cocaine was supported by the evidence,
and there was no clear error.
Tejeda also advances an argument based on the leadership
enhancement. In arguing for a leader or organizer
role adjustment, the government pointed to Lopez’s
asserted role as subservient to Tejeda (packaging and
transporting cocaine for Tejeda, transporting Tejeda for
drug deals, storing cash, cocaine, and guns for Tejeda);
Tejeda’s recruitment of Samaniego to purchase a motorcycle
in order to launder drug proceeds; Tejeda’s claimed
recruitment of Alviar and Rios in the attempt to pur
chase 10 kilograms of cocaine; and Tejeda’s calls to
Melero and Madrigal when his home was fired upon. The
defense argued that the conspiracy was a disorganized
conspiracy without leadership.
The district court found that “the enhancement itself is
based on relative culpability. And relatively speaking,
I heard more than enough evidence to convince me that
he was a leader of the people that he was dealing with,
at least some of them, and that there were five or
more people in the conspiracy.” The court enhanced the
offense level four points based on § 3B1.1(b), which
provides, “If a defendant was an organizer or leader of
a criminal activity that involved five or more participants
or was otherwise extensive, increase by 4 levels.”
On appeal, Tejeda does not dispute that there were
five or more participants, but he points out that § 3B1.1(b)
includes three categories: organizer or leader of criminal
activity involving five or more participants (4 points);
manager or supervisor of criminal activity involving five
or more participants (3 points); or organizer, leader,
manager, or supervisor of lesser criminal activity
(2 points). He continues that for the four point enhancement,
the government had to show the defendant had
real and direct influence over other participants. He
argues that the government did not demonstrate real
influence.
Note 4 to § 3B1.1(b) lists factors to be considered in
assessing the aggravating role adjustment, including “the
exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participation
in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control
and authority exercised over others.” No factor listed in
the application note is essential to finding the enhancement,
nor must we give equal weight to each factor.
United States v. Wasz, 450 F.3d 720, 729 (7th Cir. 2006).
“[A]lthough the nature and purposes of the enhancement
certainly require the defendant to have played a
leading role in the offense, he need not literally have
been the boss of his cohorts in order to qualify for the
enhancement, for a leader can influence others through
indirect as well as direct means.” Id. at 729-30.
In this case, there was evidence showing that Lopez
worked for Tejeda and that Tejeda oversaw Lopez in
selling cocaine. There was evidence that Tejeda recruited
Manny Samaniego (Cruz Samaniego’s brother) to launder
drug proceeds and purchase a motorcycle. Tejeda also
recruited Alviar and Rios to join him in the attempted
robbery of 10 kilograms. Tejeda used Melero as a lookout.
Based on this evidence, there was no clear error in the
district court’s decision to enhance the offense level four
points based on leadership.
K. Whether the district court improperly sentenced
Madrigal.
Finally, Madrigal contends that the district court improperly
sentenced him based on drug quantities in excess
of those reflected in the jury’s verdict.
The jury verdict found Madrigal responsible for more
than 500 grams but less than five kilograms of cocaine.
At sentencing, the district court, while recognizing its
authority to sentence based on amounts in excess of the
jury’s verdict, refused to find Madrigal responsible for
any amount beyond the five kilograms found by the jury
(“In this case . . . I feel constrained to honor the jury’s
finding”). The court found Madrigal responsible for
between three-and-a-half and five kilograms of cocaine,
which together with a firearms enhancement, brought
Madrigal to level 32, category VI. The guideline range
was 210 to 262 months. Madrigal received 240 months.
The court sentenced based on quantities within the
range found by the jury, which was proper.
III. Conclusion
We AFFIRM the district court on all counts.
Chicago Criminal Lawyer - Robert J Callahan
Melero, Rodolfo Madrigal, and Apolinar Delgado-Rios
were among a group of individuals indicted in connection
with an Aurora, Illinois drug conspiracy. While most
of the indicted individuals pleaded guilty, those five
defendants went to trial, where a jury convicted each as
charged. Tejeda is serving a 360 month prison sentence;
Alviar and Melero are serving 262 months; Madrigal is
serving 240 months; and Delgado-Rios is serving 121
months. Defendants appeal various aspects of their
consolidated trial and their sentences. We affirm on
all counts.
I. Background
In 2003, FBI agents began investigating a suspected drug
conspiracy in Aurora. The investigation focused on Tejeda
and his associates. The investigation eventually employed
cooperating witnesses; pen register information from
specific telephones; a court-authorized wiretap; ongoing
police surveillance; and several searches.
Based on evidence obtained, a grand jury returned its
second superseding indictment on November 17, 2005.
The indictment charged seventeen individuals, including
Tejeda, Alviar, Melero, Madrigal, and Delgado-Rios, with
conspiracy to possess and distribute cocaine in violation
of 21 U.S.C. § 846 (Count One). The indictment charged
Tejeda alone with five counts of distributing cocaine in
violation of 21 U.S.C. § 841(a)(1) (Counts Two through
Five, Seven); four counts of possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
(Counts Six, Eight through Ten); and one count of laundering
narcotics proceeds in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i) (Count Eleven). It charged Tejeda and
Alviar with two counts of attempting to possess cocaine
in violation of 21 U.S.C. § 846 (Counts Twelve and Thirteen).
Tejeda, Melero, and Madrigal were charged with
two counts of using a telephone to facilitate a narcotics
conspiracy in violation of 21 U.S.C. § 843(b) (Counts
Seventeen and Eighteen). The indictment charged Alviar,
by himself, with three counts of possession of cocaine
in violation of 21 U.S.C. § 841(a)(1) (Counts Fourteen
through Sixteen). Melero was charged individually with
two counts of unlawful possession of a firearm in violation
of 18 U.S.C. § 922(g)(1) (Counts Nineteen and
Twenty). Delgado-Rios was charged individually with
two telephone counts in violation of 21 U.S.C. § 843(b)
(Counts Twenty-Three and Twenty-Four).
The indictment stated that between 2000 and
March 2005, Tejeda was a wholesale distributor of
cocaine in Aurora, and he obtained and resold cocaine
in kilogram and ounce quantities. According to the indictment,
Tejeda’s co-defendants assisted him. Tejeda,
Alviar, Melero, and Madrigal first were members of the
Latin Homeboys street gang, and then they became
members of the Latin Kings, while Delgado-Rios was
part of Tejeda’s close family circle. Tejeda relied on his
fellow gang members and close family to serve as lookouts,
to direct him to customers, to store and transport
cocaine and money for him, and to help him steal cocaine
from others. The indictment further alleged that Tejeda’s
gang membership provided his operation with protection
from rivals; specifically Alviar and Melero specialized
in providing protection through their positions as
Latin King enforcers.
Tejeda and Melero moved pretrial to exclude gang
membership evidence as unduly prejudicial and of minimal
probative value. According to Tejeda, “evidence that
defendants are members of the Latin Homeboys or Latin
Kings is not especially probative of whether they jointly
ventured to distribute drugs to further the criminal
interest of the Latin Homeboys or Latin Kings,” and “the
missing link between the ‘gang’ and the ‘criminal activity’
distinguishes this case from other cases where gang
evidence was found admissible for the purpose of establishing
a joint venture or the existence of a conspiracy.”
The government in its consolidated response to defendants’
pretrial motions responded that: “[G]ang membership
in this case is part of the glue that held the charged
conspiracy together, and is therefore part-and-parcel of
the proof necessary to demonstrate that defendants had
a criminal intent and agreement to conspire.” The government
added that it would present witnesses to testify
that “the Aurora Latin King’s greatest source of revenue
was proceeds from cocaine sales, a fact supported by
the conspiracy evidence in this case.”
On May 3, 2006, the district court denied defendants’
motions to exclude evidence of gang membership without
placing restrictions on the prosecution’s use of
gang-related evidence. On May 9, Delgado-Rios filed a
motion objecting on Rule 403 grounds to “[a]dmission of
gratuitous gang activities.” The court denied the
motion without prejudice to raising the same objection
at trial.
Defendants’ consolidated trial commenced on May 16,
2006. It spanned eleven days. In its opening statement,
the government described Tejeda’s cocaine trafficking
organization and its relation to gangs: “One of the key
ways defendant Saul Tejeda protected himself and his
drug organization is by joining the Latin Kings street gang
in Aurora.”
The government introduced testimony of law enforcement
officers, lay witnesses, and cooperating defendants.
The government had wiretapped a telephone used by
Tejeda, and it played 189 calls at trial. It also introduced
seventeen undercover recordings made by cooperating
witnesses, which documented controlled purchases of
one ounce of cocaine from Tejeda on February 4 and
February 11, 2004; a sale by Tejeda of 2.8 grams of cocaine
on October 5, 2004; two sales of cocaine by Tejeda on
October 8, 2004; and a one ounce purchase on November
18, 2004. The recordings documented the possession
of two ounces of cocaine by Tejeda and Alviar on
February 11, and their attempt to purchase ten kilograms
of cocaine on February 15, 2005. They captured
Alviar’s statement that he was a “hood enforcer” for the
Latin Kings and that Melero was the “enforcer.”
The government introduced evidence that a search of
Melero’s house upon his arrest revealed a 9 mm pistol and
an SKS assault rifle. Searching Alviar’s house, agents
discovered drug paraphernalia and over 300 grams of
cocaine. There was evidence that, after his arrest,
Delgado-Rios stated that he was a money courier for a
drug dealer, that he purchased cocaine for personal use,
and that he had provided leads for drug robberies.
Cooperating defendant Andy Lopez testified that he
was a gang member with Alviar, Melero, Madrigal, and
Tejeda, as well as Tejeda’s roommate. He testified he
had known Tejeda was selling cocaine since at least 2000.
He witnessed Tejeda storing quarter-kilograms of cocaine
in their apartment, along with guns, a scale, and baggies.
Later, Tejeda would store cocaine with Lopez for him
to sell. Tejeda additionally rented an apartment for
Lopez in which to store cocaine and cash. In June 2004,
authorities raided and seized about half a kilogram of
cocaine.
Lopez testified that Tejeda had admitted robbing
another drug dealer to him. He also testified about a drug
robbery he committed with Melero, and about other
robberies Melero had attempted. He testified that
Madrigal purchased cocaine from Tejeda. Lopez witnessed
Tejeda discussing the purchase of cocaine from
Delgado-Rios and from Melero. He witnessed Alviar
sell two ounces of cocaine to Tejeda. Lopez made a
series of recordings with some of the defendants. On
cross-examination, Lopez stated that he did not know
what the Latin Kings had to do with the drug conspiracy
on trial.
Another cooperating defendant, Carlos Escalante,
testified that he had known Tejeda since 1998 and Alviar
since 2004. Escalante had long been a Latin King, and
he testified about the gang and the position of enforcer.
According to Escalante, the primary source of income
for the Aurora Latin Kings was cocaine distribution. He
testified about the takeover of the Latin Homeboys by
the Latin Kings. Escalante began selling cocaine upon
release from prison in 2004, buying from Tejeda once or
twice a week until October 2004. Escalante and Tejeda were
intercepted negotiating cocaine transactions; Escalante
interpreted the recordings for the jury. Escalante also
testified to seeing a handgun, cocaine, and a scale at
Tejeda’s house.
Cruz Samaniego next testified as a cooperating defendant.
Tejeda’s cousin, Samaniego had been a member of
the Latin Homeboys since 1999. He described how
Tejeda was a Latin Homeboy in 1996 and 1997 and how
Alviar, Melero, and Madrigal were Latin Kings. Samaniego
bought cocaine from Tejeda, Alviar, and Melero.
Samaniego and Tejeda were intercepted on the wiretap
negotiating cocaine transactions.
Heriverto Rios cooperated and testified that he was a
former Latin Homeboy and had known defendants for
years. He testified about drug robberies that he had been
told about involving Tejeda, Melero, Madrigal, and
Delgado-Rios. Rios testified that Tejeda supplied
Delgado-Rios with cocaine, and that Alviar, Melero, and
Madrigal also sold cocaine.
Under immunity, Carlos Olivares testified he was a
Latin King from 1989 through 2004. He stated that a
Latin Kings enforcer carries out punishments within the
gang and ensures gang members have firearms. He
testified that in December 2003 he witnessed Alviar,
armed, performing security for a Latin Kings meeting. In
March 2004, Olivares recorded a conversation in which
Alviar stated that he was the “hood enforcer” and Melero
was the enforcer. Olivares recorded Melero acting in
that capacity.
Defense counsel objected to gang evidence throughout
the trial, which included some 600 references to defen8
dants’ Latin Kings associations, and some 100 references
to defendants’ Latin Homeboys affiliations. Delgado-
Rios’ counsel made the following statement, which is
indicative of defense attorneys’ objections:
I made a motion in limine regarding the gang violence
and activities. And I’m aware that there’s several
paragraphs in Count One that say the structure of the
Latin Kings is being utilized in some fashion. And
I argued to your Honor that the structure of the gang
is not being used. There’s no nation days. There’s no—
money is not going to any treasurer. . . . We don’t
have spots where people are manning it 24 hours a
day, none of that stuff. Now, today—and we had a
little bit of an opening statement and then with this
agent. We started going back to like the Latin Kings
is some national enterprise that everyone in the
world should be afraid of. And he starts out big, you
know, at the academy we learned about the Latin
Kings, their organization and structure. Well, you
know, that is so prejudicial to this group that’s in a
small—we’re going to get a Mapquest, and it’s going
to be about a half a mile square. That’s what this case
is about, that half mile square. And I feel rivalries
between gangs, shootings between gangs, it’s all
right to say you’re carrying a gun to protect money or
drugs, but for protection from other gangs as if there’s
some kind of struggle in Aurora over drug turf is not
in this case. It’s extremely prejudicial, Judge. . . .
After some additional back-and-forth, Delgado-Rios’s
counsel moved for a mistrial. The district court denied
defense counsel’s motion, but it did address the government:
“I don’t want these people being, you know,
dragged into some sort of national gang conspiracy,
because that’s not what it is. That’s not what you’ve
represented it to be. That’s not what you’ve alleged in
the indictment, and it’s not what will be admitted in this
case.”
During Lopez’s testimony, counsel objected to testimony
about “gang stuff and the gang structure,” and to testimony
about the role of enforcer. The district court overruled
the objection, saying “I know there’s a line that
can be crossed, and I’ll keep my ears open for that. But
I haven’t seen it yet.” The court allowed testimony about
the role of enforcer, saying, “It was a pretty general
question about rank and what that means, what those
terms mean, but without any graphic detail, gratuitous
or otherwise . . . .”
In response to an additional objection about testimony
regarding gangs and “gang violence,” the government
explained that the evidence would show “the nature of
the relationship between defendants Saul Tejeda and
Juan Alviar . . . . Alviar had a particular role in this drug
conspiracy, and the role was to protect Saul Tejeda . . . .”
The district court overruled the objection and stated,
“I think the government should be allowed the opportunity
to try to put this mosaic together if they can. And
if they can’t, we’ll deal with that in due course.”
Later, in responding to objections about gang evidence,
the district court stated that it had already ruled that the
evidence would be admitted, but admonished the government
to lay a better foundation for the testimony. The
court continued, “As far as the gang being part of this
case, it is part of this case. It’s not in the traditional
sense . . . that . . . I have dealt with in some other cases.
It is part of this case.”
Post-trial, the district court again addressed the gang
evidence, stating:
I ruled earlier, and I see no reason to change my
ruling now, that this evidence was proper as admitted
in this case to show the interrelationship among
these defendants, especially since this was a conspiracy
case, and the theory of the case was that the
gang and the changing from the Home Boys to the
Latin Kings by some of the defendants, not all of the
defendants[,] was integral to understanding the
interrelationship between these defendants. The
evidence was limited, and it wasn’t introduced for
the purpose and didn’t in my view unduly prejudice
these defendants. The evidence clearly established
who was and who wasn’t a gang member and what
gang they were affiliated with and the extent of the
gang activity that related to the charged conspiracy.
I don’t minimize or belittle the defendants’ concern
about this. I know this is evidence that could be
highly prejudicial if it were not otherwise relevant.
I just think it was in this case . . . . [I]t was part of the
interrelationship between these people.
The jury returned its verdict on June 19, 2006. Alviar,
Madrigal, Melero, Delgado-Rios, and Tejeda were convicted
as charged in the second superseding indictment.
Between August 9 and August 18, 2006, Alviar, Madrigal,
Melero, Delgado-Rios, and Tejeda moved for judgment
of acquittal and/or a new trial. The district court denied
those motions. The court sentenced appellants on May 24,
2007.
II. Analysis
Alviar, Madrigal, Melero, Delgado-Rios, and Tejeda filed
notices of appeal. We consolidated defendants’ appeals
and instructed them to file a joint brief covering common
issues, and to file individual supplemental briefs if necessary.
In their joint brief, defendants argue that the
district court abused its discretion in allowing evidence
of gang membership. We address that common issue
first. Defendants then raise various other challenges to
their trial and sentences in their individual supplemental
briefs, which we address in turn, providing additional
background information when it is needed.
A. Whether the district court abused its discretion in
allowing evidence of gang membership.
Defendants claim that the district court abused its
discretion when it: (1) allowed the introduction of unduly
prejudicial gang evidence; (2) placed no limits on the
introduction of gang evidence; and (3) failed to analyze
such evidence under Fed. R. Evid. 404(b). They claim
that the court at the pretrial stage overlooked Seventh
Circuit case law that such evidence is prejudicial. They
continue that during the trial, the court never “made the
difficult calls that are required by Fed. R. Evid. 404(b).”
Defendants cite several Seventh Circuit cases to support
their argument. E.g., United States v. Hardin, 209 F.3d 652,
663 (7th Cir. 2000) (“Charging a drug conspiracy that
involves gang members . . . does not give the government
carte blanche to splash gang references throughout the
trial.”); United States v. Irvin, 87 F.3d 860, 865 (7th Cir.
1996); United States v. Rodriguez, 925 F.2d 1049, 1053
(7th Cir. 1991) (“[E]vidence of membership in a street
gang is likely to be ‘damaging to [a defendant] in the
eyes of the jury.’ ”) (quoting United States v. Lewis, 910
F.2d 1367, 1372 (7th Cir. 1990)).
The government acknowledges that evidence of gang
affiliation may be highly prejudicial, but it argues that
such evidence is admissible when relevant to demonstrate
the existence of a joint venture or conspiracy and
a relationship among its members. The government cites
United States v. Suggs, 374 F.3d 508, 516 (7th Cir. 2004), to
argue that gang evidence is “particularly relevant” in
conspiracy cases, where the relationships of the defendants
is a central issue. It claims that the district court did
place limits on the gang evidence, and the evidence
admitted was not unduly prejudicial. The government
also contends that defendants forfeited their Rule 404(b)
argument and in any event the gang evidence was not
404(b) evidence.
Our review of the district court’s gang evidence
decisions is for abuse of discretion. Rodriguez, 925 F.2d at
1053. “We give special deference to a trial judge’s evidentiary
rulings ‘because of the trial judge’s first-hand exposure
to the witnesses and the evidence as a whole, and
because of the judge’s familiarity with the case and ability
to gauge the impact of the evidence in the context of the
entire proceeding.’” United States v. Hernandez, 330
F.3d 964, 969 (7th Cir. 2003) (quoting United States v.
Van Dreel, 155 F.3d 902, 905 (7th Cir. 1998)).
We have recognized there is “substantial risk of unfair
prejudice attached to gang affiliation evidence,” but
“under appropriate circumstances, gang evidence has
probative value warranting its admission over claims of
prejudice.” Irvin, 87 F.3d at 864. In the Seventh Circuit,
“[e]vidence of gang affiliation is admissible in cases in
which it is relevant to demonstrate the existence of a
joint venture or conspiracy and a relationship among its
members” and each defendant’s knowledge of and participation
in the drug conspiracy. United States v. Westbrook,
125 F.3d 996, 1007 (7th Cir. 1997). “Gang affiliation is
particularly relevant, and has been held admissible, in
cases where the interrelationship between people is a
central issue” such as in a conspiracy case. United States
v. Thomas, 86 F.3d 647, 652 (7th Cir. 1996) (affirming
ruling allowing gang evidence because that evidence
“helped demonstrate the existence of the conspiracy
and the connections between members of the conspiracy”);
see also United States v. Sargent, 98 F.3d 325, 328 (7th Cir.
1996) (“[G]ang membership can be key to establishing
criminal intent or agreement to conspire.”).
In this case, the evidence that the government submitted
was relevant to proving the conspiracy allegations
set forth in the indictment. The evidence established
that Tejeda was a drug dealer who employed a network of
associates to obtain and to distribute the drugs, and that
the majority of individuals that made up the network
were in the Latin Homeboys and/or the Latin Kings
with Tejeda. For example, the evidence established that
Alviar and Melero had been Latin Homeboys with Tejeda,
and later became Latin Kings with Madrigal and him. The
fact that these four individuals were bound together by
their gang membership made it more likely that they
participated in a conspiracy. Testimony also established
a link between gang membership and protection. While
Tejeda once had expressed concerns about being robbed,
after he became a Latin King, he did not express the
same concerns. The evidence supported the argument
that he no longer was concerned because Alviar and
Melero, as Latin King enforcers, provided protection.
Madrigal cites United States v. Avila, 465 F.3d 796, 798 (7th
Cir. 2006), to argue that the government and the district
court confused evidence of membership in the gang
with evidence of membership in the conspiracy. In that
case, there was “negligible evidence” that the defendant
belonged to a gang, but even if the defendant was a gang
member, there was “no evidence” that he was a part of
the conspiracy; the trial court erred in assessing his relevant
conduct based on gang membership alone. Here, by
contrast, the government elicited testimony to show that
Tejeda’s drug trafficking operation used gang members
in certain defined roles. The government did not
simply equate any membership in the gang with being a
co-conspirator. The government’s use of gang evidence
was not improper in the instant case.
Defendants argue that, even if it was proper for the
district court to admit some gang evidence, the court
should have placed additional limits on the gang
evidence that the government sought to introduce. They
claim that the court permitted the government to do
much more than simply “complete the story” of how the
defendants came to know each other. For example, defendants
argue that the court should have limited the evidence
so that the government did not mention specific
gang names or launch into a litany of violent acts both
by and against the defendants.
As a preliminary matter, we note that the district court
in fact did place certain limits on the gang evidence. In
some instances, the court kept out gang evidence that
was either irrelevant or unduly prejudicial. For example,
when the government sought to admit a table bearing
gang graffiti recovered from Melero’s basement, the
court barred its admission. When the government elicited
testimony from an FBI case agent that of the hundreds of
witnesses he had interviewed “virtually all” had tied the
gang’s activities to drug dealing, the court sustained an
objection and instructed the jury to disregard the answer.
When the government elicited testimony from
Escalante about Latin Kings’ drug dealing, the court
allowed Escalante to testify to the gang’s activities when
he was involved, while sustaining objections to testimony
about gang activities while he was incarcerated. The
court admonished the government to elicit a specific
foundation for testimony about gang activities: “They’re
holding you to your proof. You know, they haven’t held
you to . . . the letter of the rules of evidence for every
thing in this case, but this time they are. This is a very
sensitive subject, and I think you have to lay the foundation
properly when you ask him or anybody else in this
case for this type of testimony.”
The evidence that the district court admitted was probative
of defendants’ roles in the Tejeda drug organization.
Even the evidence of Latin King handshakes, symbols,
colors, and tattoos tended to establish gang membership
or affiliation, and it was proper for the government to
prove gang membership as part of the conspiracy. Thus,
we do not conclude that the court abused its discretion
when it did not further limit the government’s evidence.
Finally, defendants’ argument that the district court
failed to analyze the gang evidence under Rule 404(b) was
forfeited, as it was never raised below, and we review it
for plain error. United States v. LeShore, 543 F.3d 935, 939
(7th Cir. 2008). The contested evidence proved specific
portions of the indictment. It did not concern “other
crimes, wrongs or acts,” but it concerned the charged
crime. When evidence is embraced by the conspiracy in
the indictment, the court need not resort to Rule 404(b)
analysis. “Rule 404(b) is inapplicable where the ‘bad acts’
alleged are really direct evidence of an essential part of
the crime charged.” United States v. Lane, 323 F.3d 568, 579
(7th Cir. 2003). The gang evidence was not actually Rule
404(b) evidence, and the court did not commit plain
error when it did not analyze the evidence under
Rule 404(b).
B. Whether the district court properly refused to
sever defendant Madrigal, who was indicted as a
co-conspirator.
On August 18, 2005, Madrigal filed a motion for severance
and a separate trial under Fed. R. Crim. P. 14, arguing
that he would be prejudiced by undergoing a trial where
there was “a gross disparity in both the amount and type
of evidence against Madrigal vis-a-vis his co-defendants.”
A joint trial, Madrigal claimed, would be “fundamentally
unfair.” The government filed its response on the severance
issue on February 10, 2006. On May 10, in its
Pretrial Hearing Order, the district court denied
Madrigal’s motion for severance.
Madrigal appeals denial of his severance motion. He
argues that the district court should have severed him
because of: (1) “spillover” of the government’s evidence;
(2) prejudicial effect of inflammatory evidence of racial
slurs by defendants; (3) prejudicial gang membership
and violence evidence; and (4) “other crimes” and
weapons evidence only relevant to other defendants.
Madrigal never renewed his motion at the close of the
evidence. According to our case law, unless a motion to
sever is renewed at the close of the evidence, it generally
is waived. See United States v. Rollins, 301 F.3d 511, 518
(7th Cir. 2002). A waiver of this nature would preclude
appellate review of any kind. See United States v. Olano, 507
U.S. 725, 733 (1993). However, the failure to renew a
motion to sever may be excused if the defendants can
“demonstrate that refiling [the motion to sever] would
have been . . . futile.” United States v. Caudill, 915 F.2d 294,
298 (7th Cir. 1990). Madrigal does not explicitly argue that
renewing the motion to sever would have been futile, but
he does state: “[C]ontrary to the government’s claim
that the issue was not preserved by a renewed motion at
the close of the evidence, the district court had been
apprised of the issue for so long, both before and during
the trial, the district court had to be fully aware that
severance was still a viable, pending issue for Madrigal
which could still be remedied by spinning his separate
trial off to another occasion.” In this case, the defense
constantly challenged the admission of gang-related
evidence—before, during, and after trial—on the grounds
that it was prejudicial. One more motion may have
been futile, but we need not decide whether Madrigal’s
motion to sever was waived, as our answer to that
question is not outcome determinative.
Even if Madrigal’s entire motion to sever was not
waived, his second, third, and fourth arguments on appeal
are forfeited. Madrigal never argued below that the district
court should have severed him because of (2) the prejudicial
effect of other defendants’ use of racial slurs on the
wiretap recordings; (3) the prejudicial nature of the gang
evidence introduced at trial; and (4) the prejudicial effect
of certain evidence against Alviar, Melero, and Renteria.
We review arguments (2), (3), and (4) for plain error.
We review argument (1), that the district court should
have severed him because of the spillover effect from
evidence against co-defendants, for abuse of discretion.
See United States v. McClurge, 311 F.3d 866, 871-72 (7th
Cir. 2002).
In all but the “most unusual circumstances,” the risk of
prejudice arising from a joint trial is “outweighed by the
economies of a single trial in which all facets of the
crime can be explored once and for all.” United States v.
Velasquez, 772 F.2d 1348, 1352 (7th Cir. 1985). There is a
strong preference that co-conspirators be jointly tried,
particularly when they were indicted together. See United
States v. Souffront, 338 F.3d 809, 828 (7th Cir. 2003). Joint
trials “promote efficiency and ‘serve the interests of
justice by avoiding the scandal and inequity of inconsistent
verdicts.’” Zafiro v. United States, 506 U.S. 534, 537
(1992) (quoting Richardson v. Marsh, 481 U.S. 200, 209-10,
(1987)). A district court has discretion to sever counts or
defendants for trial. Fed. R. Crim. P. 14(a). We will overturn
a denial of a motion to sever only if actual prejudice
resulted. Souffront, 338 F.3d at 831.
Madrigal’s first argument relates to the spillover effect
of the evidence against his co-defendants. He claims that
the district court overlooked the “massive amount” of
evidence, witness testimony, and intercepted telephone
call trial evidence targeted at proving the guilt of his
co-defendants to his prejudice. But the fact that the government
has greater evidence against one co-defendant
does not automatically give the other defendant grounds
for severance. United States v. Studley, 892 F.2d 518, 524
(7th Cir. 1989). Given that Madrigal was charged in a
conspiracy with his co-defendants, most evidence
offered at trial would have been admissible in a trial
against him alone. The jury was instructed to consider
each defendant separately. It did so and convicted Madrigal
of a lesser drug quantity than his co-defendants. There
was no actual prejudice to Madrigal on account of
“spillover” evidence because the jury distinguished
between him and his co-defendants. United States v.
Thompson, 286 F.3d 950, 968 (7th Cir. 2002).
One of Madrigal’s forfeited arguments is that he
should have been severed because the tape recordings
showed that defendants used variations of the “N” word
when speaking. Madrigal argues that the remarks were
“racially offensive,” and that his co-defendants used the
terms more than he did. But, as the district court stated, the
use of the terms “occurred during the conversations, and
it was the manner in which they spoke to each other
during the pertinent conversations.” The court found
that the terms were not meant to be racially offensive.
The court also concluded it would not have been feasible
to redact offensive words from hundreds of recordings. It
was not plain error for the court not to sever Madrigal
based on defendants’ use of those words in recorded
conversations. He did not suffer actual prejudice, as
there was ample evidence against Madrigal and the
jury was properly instructed to distinguish between
co-defendants. Similarly, Madrigal’s additional arguments
do not demonstrate that the district court plainly erred
when it denied Madrigal’s motion to sever.
C. Whether the district court properly accepted the
government’s Santiago proffer.
Delgado-Rios raises a claim related to the government’s
Santiago proffer. Under Fed. R. Evid. 801(d)(2)(E), a
“statement is not hearsay if . . . [t]he statement is offered
against a party and is . . . a statement by a coconspirator of
a party during the course and in furtherance of the conspiracy.”
In United States v. Santiago, 582 F.2d 1128, 1130-31
(7th Cir. 1978), we decided that when a statement of a
co-conspirator which otherwise would be regarded as
hearsay is proffered by the government, Fed. R. Evid.
104(a) requires that the district court make a preliminary
determination regarding the admissibility of the declaration.
We made clear that as a condition for admission of
such statements, the government must convince the
court, by a preponderance of the evidence, that (1) a
conspiracy existed, (2) the defendant and the declarant
were members of the conspiracy, and (3) the statement(s)
sought to be admitted were made during and in furtherance
of the conspiracy. Id. at 1133-34; see also United States
v. Cox, 923 F.2d 519, 526 (7th Cir. 1991). The government
may submit evidence of these elements in a pre-trial
proffer, and the district court may admit the statement(s)
subject to its later determination during trial that the
government has established by a preponderance of the
evidence the three foundational elements. Santiago, 582
F.2d at 1131. These evidentiary submissions are known
as “Santiago proffers.”
Delgado-Rios argues that the district court erred by
accepting a “woefully inadequate” Santiago proffer. He
claims the proffer was “in the most general terms” and
“perfunctory.” Findings under Fed. R. Evid. 801(d)(2)(E)
based on a Santiago proffer are reviewed for clear error.
United States v. Rodriguez, 975 F.2d 404, 411 (7th Cir. 1992).
The government’s written proffer contained a preview of
the evidence as to all defendants, including Delgado-Rios.
The proffer summarized cooperator Lopez’s anticipated
testimony, stating Lopez “knew co-defendant Apolinar
Delgado-Rios to buy cocaine from Tejeda and resell it.
Lopez also knew Tejeda to front cocaine to Delgado-Rios.
Lopez also knew Delgado-Rios to pass along information
to Tejeda about who was storing cocaine and where it
was being stored so that Tejeda and others could commit
drug robberies, in exchange for a portion of the robbery
proceeds.” The proffer summarized Rios’s testimony that
“Tejeda distributed a minimum of two ounces of cocaine
to co-defendant Apolinar Delgado-Rios . . . at least three
times a month. Rios also saw Delgado-Rios resell the
cocaine he bought from Tejeda to other persons.” The
proffer included summaries of calls that recorded
Delgado-Rios and Tejeda carrying out their drug business.
Based on the information in the proffer, the district
court did not commit clear error in concluding that the
government had met by a preponderance of the evidence
the preconditions for admission of co-conspirator statements.
D. Whether the district court committed plain error in
allowing Agent Camacho to testify about the
prior consistent statement of a witness who was
alleged to have fabricated testimony about
Delgado-Rios.
Delgado-Rios next raises his first evidentiary error claim.
Cooperating witness Rios had testified that Delgado-Rios
had complained about being unsatisfied with his take
from a drug robbery that Delgado-Rios had tipped Tejeda
and others about. Rather than cross-examining Rios on
that point, Delgado-Rios attempted to impeach Rios by
calling Agent Larissa Camacho, one of the case agents, to
testify about an interview that she conducted with Rios.
Camacho’s report reflected that Rios had said that his
brother, Miguel Rios, expressed dissatisfaction with his
take from the robbery, and not that Rios mentioned
Delgado-Rios was unsatisfied.
On cross-examination of Camacho, the prosecution
elicited the fact that Rios had mentioned Delgado-Rios
to Camacho in addition to Miguel Rios, although
Camacho’s report did not reflect that fact. Delgado-Rios
objected that this fact was “already testified to by the
witness, Rios.”
Delgado-Rios now argues on appeal that Camacho’s
testimony about the interview of Rios was improper
hearsay, that it erroneously allowed her to “impeach
her own report,” and that it introduced inadmissible
opinion evidence about the veracity of Rios. These objections
were not raised below, so we review for plain
error. Rollins, 544 F.3d at 834.
Prior consistent statements that are offered to rebut a
charge of recent fabrication or improper influence or
motive are not hearsay. Fed. R. Evid. 801(d)(1)(B); Tome v.
United States, 513 U.S. 150, 157-58 (1995). Such statements
are admissible if they satisfy a four-part test: (1)
the declarant testifies at trial and is subject to crossexamination;
(2) his prior statement is indeed consistent
with his trial testimony; (3) the statement is offered to
rebut an explicit or implicit accusation of recent fabrication;
and (4) the statement was made before the declarant
had a motive to fabricate. United States v. Ruiz, 249
F.3d 643, 647 (7th Cir. 2001).
Rios’s prior statement to Camacho satisfies the test. His
statement was consistent with his trial testimony and
was used to rebut Delgado-Rios’s implied charge that
Rios had fabricated his testimony. There is no indication
that Delgado-Rios was prevented from recalling Rios
for cross-examination about the assertions attributed to
Rios by Camacho, and because those assertions meet the
other requirements for admission under Rule 801(d)(1)(B),
the district court did not commit plain error in allowing
Camacho’s statement.
E. Whether the district court erred in allowing
Delgado-Rios’s mother-in-law to testify that he
possessed cocaine.
Delgado-Rios next argues that the district court erred
when it allowed prejudicial testimony from his
mother-in-law, Metsi Thomas. Thomas testified to two
incidents. Following Delgado-Rios’s arrest, she found
cocaine “in the battery compartment of an object.” And
Delgado-Rios once handed her a cellphone concealing
cocaine. Both incidents occurred during the charged
conspiracy. The court did exclude testimony that the
“object” in the first incident was a child’s toy, but the
court permitted Thomas to testify that Delgado-Rios did
not have a regular job and that he tricked agents who failed
to locate cocaine hidden in the battery compartments of the
cellphone and the object. Delgado-Rios objected to testimony
related to the first incident, but not to the second, so
we review admission of testimony on the first incident for
abuse of discretion, and admission of testimony on the
second for plain error.
Thomas’s testimony, which focused only on incidents
that occurred during the conspiracy, was relevant to prove
Delgado-Rios’s participation in the conspiracy. The
testimony helped prove that Delgado-Rios had access to
cocaine. There was separate evidence that Delgado-Rios
was in contact with Tejeda to supply him with cocaine.
Having addressed the possible prejudice from the fact that
drugs were concealed in a toy on one occasion, the district
court did not abuse its discretion or commit plain error by
allowing testimony directly relevant to the conspiracy.
F. Whether the prosecutor improperly vouched for
witnesses or improperly referenced facts not presented
to the jury.
Delgado-Rios next argues that the government improperly
vouched for its witnesses and improperly referenced
facts not presented to the jury.
First, he argues that it was improper for the prosecutor
to elicit testimony from cooperating witnesses about their
“need to give truthful testimony in order to maintain the
benefits of the witness’ plea bargain.” We have concluded
that the “prosecution is entitled to get into evidence the
fact that [plea] deals are conditioned upon truthful testimony.”
United States v. Thornton, 197 F.3d 241, 251-52 (7th
Cir. 1999). Two types of “vouching” are forbidden: a
prosecutor may not express her personal belief in the
truthfulness of a witness, and a prosecutor may not
imply that facts not before the jury lend a witness credibility.
United States v. Renteria, 106 F.3d 765, 767 (7th Cir.
1997). Neither type was committed here. We did caution
in Thornton that “for more than a decade we have been
warning prosecutors to ‘avoid unnecessarily repetitive
references to truthfulness if it wishes to introduce the
agreements into evidence. . . .’ [P]rosecutors should
consider refraining from introducing the documents
into evidence and rely instead on testimony summarizing
the agreement.” Thornton, 197 F.3d at 253 (quoting
United States v. Lewis, 110 F.3d 417, 421 (7th Cir. 1997)).
In this case, the government did not even introduce
the plea agreements themselves. It merely elicited testimony,
which does not constitute error.
Delgado-Rios argues that the government improperly
vouched for its cooperating witnesses when it referenced
the plea deal conditions in its closing argument to the
jury. The prosecutor stated:
More important, these witnesses told you that if they
lied, they jeopardized the deal that they had with
the government. And where they did lie, where they
have told inconsistent statements, they have admitted
it to you. So you have all of these tools available
to you to evaluate their testimony, the fact
that they’re corroborated, the fact that they have no
motivation to lie, and the fact that they have been
honest as they came into this courtroom. They did
their best, and they tried to tell the truth.
The comments made here focus on the incentives provided
by defendant’s plea agreement for him to tell the
truth. They resemble a similar argument about a plea
agreement that we accepted in Renteria. There, we concluded
that “the prosecutor was free to invite the jury to
draw a particular inference from [the plea agreement].
Defense counsel was free to urge a competing inference,
as he did on numerous occasions. By arguing as they
did, both sides respected the jury’s ability to evaluate
credibility based on the facts in evidence.” Renteria, 106
F.3d at 766-67 (internal citations omitted). The prosecutor
here did not express a “personal belief,” and we conclude
that the prosecutor’s statement was not improper
vouching.
Delgado-Rios also argues that the prosecutor implied
that facts not before the jury lent a witness credibility.
First, he cites the prosecution’s argument that Delgado-
Rios was guilty of the conspiracy based on wiretapped
calls: “You also know that he was in the conspiracy first
from the phone calls, 20 phone calls from the wiretap, 916,
930, 932, 938, and so on. . . . These are only some of the
calls among the calls that were recorded in which Saul
Tejeda and Apolinar Delgado-Rios discuss cocaine trafficking.”
The prosecution later clarified that it was referring
the jury to consider only “the phone calls that
were played in court.” The government argues that its
references to additional phone calls did not include an
improper reference to evidence outside the record; it
was an inartful way of saying that calls 916, 930, 932,
and 938 were “only some of the calls among the calls that
were recorded.” We “must not lightly assume that ‘a
prosecutor intends an ambiguous remark to have its
most damaging meaning or that a jury, sitting through
a lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.’ ” United States
v. Rose, 12 F.3d 1414, 1424 (7th Cir. 1994) (quoting Boyde
v. California, 494 U.S. 370, 385 (1990)). We cannot conclude
that this statement about phone calls constituted
improper vouching.
Finally, Delgado-Rios argues that another remark made
by the government in closing was improper vouching:
“You heard then from only four customers of this conspiracy.
As with the phone calls, we didn’t present you
with 100 percent of the evidence, because we would still
be listening to testimony from cooperating witnesses.”
The government concedes that this statement was improper
because it refers to evidence not presented to the
jury as supporting conviction. With this concession, we
examine the record as a whole to decide whether
Delgado-Rios was prejudiced by the prosecutor’s inappropriate
remark so that his trial was fundamentally
unfair. Our inquiry into the prejudice is informed by
several factors, including: “(1) the nature and seriousness
of the prosecutorial misconduct, (2) whether the
prosecutor’s statements were invited by impermissible
conduct by defense counsel, (3) whether the trial court
instructed the jury to disregard the statements, (4) whether
the defense was able to counter the improper arguments
through rebuttal, and (5) the weight of the evidence
against the defendant.” United States v. Pirovolos, 844
F.2d 415, 426 (7th Cir. 1988) (reciting the factors outlined
in Darden v. Wainwright, 477 U.S. 168, 181-83 (1986)).
The improper remark made by the government was
serious and the district court did not issue instructions to
the jury to disregard the statement. However, defense
counsel had an opportunity to refute the prosecution’s
comment in its own closing argument and the prosecution
did not reference that statement again in its rebuttal.
More importantly, the overwhelming evidence
of Delgado-Rios’s guilt “eliminates any lingering doubt
that the prosecutor’s remarks unfairly prejudiced the
jury’s deliberations or exploited the Government’s
prestige in the eyes of the jury.” United States v. White,
222 F.3d 363, 371 (7th Cir. 2000) (quoting United States
v. Young, 470 U.S. 1, 19 (1985)). We conclude that the
government’s improper remark did not render Delgado-
Rios’s trial fundamentally unfair.
G. Whether the district court properly allowed testimony
that Tejeda was a felon.
Tejeda argues that the district court erred in allowing
evidence that he was a convicted felon. His attorney
objected, and we review for abuse of discretion.
Sergeant Johnson testified that on October 12, 2004,
he participated in a search of a house Tejeda shared
with his girlfriend, Adrianne Potochney. Tejeda was not
home. Authorities recovered a box of ammunition. On
cross-examination, defense counsel asked:
Q: It’s not illegal to keep ammunition in the house, is
it?
A: It is in certain circumstances, yes.
Q: Is there a law in Aurora that it’s illegal to keep
ammunition in a house?
A: There is a state law that forbids possession of
firearms and ammunition by felons.
Q: Is Adrianne Potochney, is she a felon?
A: Not that I’m aware of.
On redirect, the government asked:
Q: You were asked if Adrianne Potochney was a
convicted felon?
A: Yes, I was.
Q: Is there anyone else who lived in the residence at
1000 Superior Street who was a convicted felon?
DEFENSE COUNSEL MR. NEELY: Objection, Your
Honor.
A.U.S.A.: Judge, I do believe that Mr. Neely opened
the door.
Mr. NEELY: I don’t think that I did.
THE COURT: Overruled.
A: I believe Saul Tejeda was a felon.
The government argues on appeal that defense counsel
did open the door, justifying the district court’s decision
to admit the testimony at issue. The defense argues
the decision was improper.
In United States v. Draiman, we wrote that “opening the
door” is a risk that a defense counsel assumes “when a
calculated effort is made to tiptoe over thin ice to gain
some evidentiary advantage. It also can be a delicate
situation for the trial court’s exercise of discretion so as
not to permit undue prejudice to the defendant merely
to correct some possible jury impression that may be
of no lasting consequence.” We continued: “The government . . .
does not have to turn the other cheek when
it has the explanation to defense-created misimpressions.
The trial court needs to use its seasoned trial
experience in a common sense, realistic consideration of
the problem.” 784 F.2d 248, 255 (7th Cir. 1986).
Here, Tejeda argues that the cross-examination highlighted
“the fact that Tejeda’s girlfriend was in possession
of the premises at the time of the search” and that
the search did not result in her arrest. According to
Tejeda, he was “not attempting to place some innocent
gloss on Tejeda’s possession of ammunition.” If he
wanted to focus on the girlfriend, however, Tejeda
would not have asked about the legality of possession of
ammunition. By doing so, Tejeda opened the door somewhat,
and the government sought to clear up the defense-
created misimpression. The district court exercised
its discretion and admitted the testimony. The
government did not dwell on the answer, either by attempting
to go into details about Tejeda’s prior conviction
or by arguing the conviction in its closing argument.
We cannot conclude that the trial judge abused his
discretion.
H. Whether the district court properly refused to
bifurcate the trial into guilt and drug quantity
phases.
On the penultimate day of trial, Melero moved to
bifurcate the guilt and drug quantity phases, arguing that
otherwise he would have to simultaneously argue that
he was not a member of a drug conspiracy as charged but,
that if he was, “he was not involved in the quantities of
drugs charged by the Government.” The district court
denied the motion, stating, “I don’t see the prejudice
frankly.” Melero argues on appeal that the court violated
his Fifth and Sixth Amendment rights and otherwise
abused its discretion by failing to bifurcate the issues of
guilt and drug quantity. A trial court has discretion to
decide whether to bifurcate a trial, and we evaluate
denial of a motion to bifurcate for abuse of discretion.
See Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir.
2000).
As the district court recognized here, it’s not clear
that Melero’s arguments were even inconsistent: to argue
that he was not a member of the conspiracy did not
amount to conceding drug quantity, nor did arguing the
drug quantity require an admission of guilt on the conspiracy.
The court did not abuse its discretion in
denying Melero’s motion.
I. Whether the district court properly admitted a
co-conspirator statement by Alviar that he and
Melero were enforcers in the Latin Kings.
Cooperating witness Olivares testified that he had been
a Latin King in Aurora who was imprisoned until
August 2003. On being released from prison, Olivares
began cooperating with the FBI. On March 25, 2004,
Olivares recorded a conversation with Alviar in which
Alviar stated: “Me and Pep Dog [Melero] got those
spots. He’s the enforcer, I’m hood enforcer.” Olivares
described those enforcer positions as high positions.
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 33
The defense objected to the recording on the ground
that Alviar’s statements to Olivares were not made in
furtherance of the conspiracy and were admissible only
against Alviar. The district court admitted the recording.
Melero appeals. He argues that the court abused
its discretion by permitting conversations with a confidential
informant for the government into evidence
under 28 U.S.C. § 801(d)(2)(E).
In conspiracy cases statements that are “part of the
information flow between conspirators intended to help
each perform his role” satisfy the “in furtherance” requirement
of Rule 801(d)(2)(e). Garlington v. O’Leary, 879
F.2d 277, 283 (7th Cir. 1989) (quoting United States v. Van
Daal Wyk, 840 F.2d 494, 499 (7th Cir. 1988)). Such statements
include those made to alert members to the
progress of the conspiracy and their roles in it. See
United States v. Hunt, 272 F.3d 488, 495-96 (7th Cir. 2001).
The district court had ample grounds to conclude that
Alviar’s statement to Olivares furthered the conspiracy.
J. Whether the district court clearly erred in attributing
more than 150 kilograms of cocaine to Tejeda
for sentencing purposes and in assessing him an
enhancement for being a leader or organizer of
extensive criminal activity.
Tejeda was sentenced at a base offense level of 38 based
on a finding that the cocaine involved in the conspiracy
and chargeable to Tejeda totaled 171.6 kilograms. Among
other enhancements, the district court enhanced Tejeda’s
offense level by four points pursuant to U.S.S.G. § 3B1.1(b)
based on a finding that he was an organizer or leader
of criminal activity involving five or more participants.
Tejeda argues on appeal that he is entitled to resentencing
because the court erred in its drug quantity
calculations and in enhancing his offense level based on
its finding that he was an organizer or leader. We review
a court’s factual findings at sentencing for clear error.
United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005).
In terms of drug quantity, the government relied on
testimony of cooperating witness Lopez to make its
calculations. Lopez testified that from approximately
January to September 2000, Tejeda dealt between
one-quarter and one-half ounce of cocaine per week. The
mid-point of this range is 10.5 grams, and 10.5 grams
times 39 weeks amounts to 409.5 grams. From approximately
October 2000 to December 2001, Lopez testified,
Tejeda dealt approximately 1/8 kilo per week, and
126 grams times 65 weeks amounts to 8,190 grams. From
approximately January to June 2002, Tejeda dealt approximately
1/4 kilo per week, and 250 grams times 22
weeks amounts to 5,500 grams. And from approximately
July 2002 to March 2005, Tejeda dealt one to two kilograms
per week, and one kilogram times 142 weeks
amounts to 142,000 grams. Tejeda, Madrigal, Melero, and
Delgado- Rios also stole some 4 kilograms, and defendants
Tejeda, Alviar, and Heriverto Rios attempted to purchase
10 kilograms of cocaine as part of the conspiracy.
The district court stated:
[T]hese were not kilogram transactions. They were
small, relatively small transactions. . . . But it’s still
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 35
enough to max out on the threshold of the 38 offense
level under the guidelines. . . . [T]hey were small
quantity transactions, but they occurred over an
awfully long period of time, and that’s how it adds
up, just so the record is clear about that.
We analyze the district court’s finding for clear error.
The court was “entitled to estimate drug quantity using
testimony about the frequency of dealing and the amount
dealt over a specified period of time.” United States v.
Hernandez, 544 F.3d 743, 746 (7th Cir. 2008) (quoting
United States v. Noble, 246 F.3d 946, 952 (7th Cir. 2001)).
While a defendant must be sentenced on the basis of
reliable information, United States v. Bautista, 532 F.3d
667, 672 (7th Cir. 2008), and a court may not base its
calculation on pure speculation, United States v. Jarrett,
133 F.3d 519, 530 (7th Cir. 1998), the court may use a
reasonable estimate of the drug quantities. United States
v. Krasinski, 545 F.3d 546, 552 (7th Cir. 2008). The court’s
finding that Tejeda was responsible for more than 150
kilograms of cocaine was supported by the evidence,
and there was no clear error.
Tejeda also advances an argument based on the leadership
enhancement. In arguing for a leader or organizer
role adjustment, the government pointed to Lopez’s
asserted role as subservient to Tejeda (packaging and
transporting cocaine for Tejeda, transporting Tejeda for
drug deals, storing cash, cocaine, and guns for Tejeda);
Tejeda’s recruitment of Samaniego to purchase a motorcycle
in order to launder drug proceeds; Tejeda’s claimed
recruitment of Alviar and Rios in the attempt to pur
chase 10 kilograms of cocaine; and Tejeda’s calls to
Melero and Madrigal when his home was fired upon. The
defense argued that the conspiracy was a disorganized
conspiracy without leadership.
The district court found that “the enhancement itself is
based on relative culpability. And relatively speaking,
I heard more than enough evidence to convince me that
he was a leader of the people that he was dealing with,
at least some of them, and that there were five or
more people in the conspiracy.” The court enhanced the
offense level four points based on § 3B1.1(b), which
provides, “If a defendant was an organizer or leader of
a criminal activity that involved five or more participants
or was otherwise extensive, increase by 4 levels.”
On appeal, Tejeda does not dispute that there were
five or more participants, but he points out that § 3B1.1(b)
includes three categories: organizer or leader of criminal
activity involving five or more participants (4 points);
manager or supervisor of criminal activity involving five
or more participants (3 points); or organizer, leader,
manager, or supervisor of lesser criminal activity
(2 points). He continues that for the four point enhancement,
the government had to show the defendant had
real and direct influence over other participants. He
argues that the government did not demonstrate real
influence.
Note 4 to § 3B1.1(b) lists factors to be considered in
assessing the aggravating role adjustment, including “the
exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participation
in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control
and authority exercised over others.” No factor listed in
the application note is essential to finding the enhancement,
nor must we give equal weight to each factor.
United States v. Wasz, 450 F.3d 720, 729 (7th Cir. 2006).
“[A]lthough the nature and purposes of the enhancement
certainly require the defendant to have played a
leading role in the offense, he need not literally have
been the boss of his cohorts in order to qualify for the
enhancement, for a leader can influence others through
indirect as well as direct means.” Id. at 729-30.
In this case, there was evidence showing that Lopez
worked for Tejeda and that Tejeda oversaw Lopez in
selling cocaine. There was evidence that Tejeda recruited
Manny Samaniego (Cruz Samaniego’s brother) to launder
drug proceeds and purchase a motorcycle. Tejeda also
recruited Alviar and Rios to join him in the attempted
robbery of 10 kilograms. Tejeda used Melero as a lookout.
Based on this evidence, there was no clear error in the
district court’s decision to enhance the offense level four
points based on leadership.
K. Whether the district court improperly sentenced
Madrigal.
Finally, Madrigal contends that the district court improperly
sentenced him based on drug quantities in excess
of those reflected in the jury’s verdict.
The jury verdict found Madrigal responsible for more
than 500 grams but less than five kilograms of cocaine.
At sentencing, the district court, while recognizing its
authority to sentence based on amounts in excess of the
jury’s verdict, refused to find Madrigal responsible for
any amount beyond the five kilograms found by the jury
(“In this case . . . I feel constrained to honor the jury’s
finding”). The court found Madrigal responsible for
between three-and-a-half and five kilograms of cocaine,
which together with a firearms enhancement, brought
Madrigal to level 32, category VI. The guideline range
was 210 to 262 months. Madrigal received 240 months.
The court sentenced based on quantities within the
range found by the jury, which was proper.
III. Conclusion
We AFFIRM the district court on all counts.
Chicago Criminal Lawyer - Robert J Callahan
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