United States v. Corral, Fernando ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1493 & 02-1734
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERNANDO CORRAL and FERNANDO LOPEZ,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 00 CR 230—Rudy Lozano, Judge.
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ARGUED FEBRUARY 12, 2003—DECIDED APRIL 1, 2003
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Before BAUER, POSNER, and RIPPLE, Circuit Judges.
BAUER, Circuit Judge. Defendants Fernando Corral
and Fernando Lopez pleaded guilty to possession with
intent to distribute a quantity of powder cocaine. The
district court found Corral responsible for more than six,
but less than seven, kilograms of cocaine and sentenced
him to eighty months’ imprisonment. Lopez was sentenced
to sixty months in prison followed by three years of su-
pervised release. Corral appeals the district court’s sentence
to the extent the court held him responsible for five kilo-
grams of cocaine, which he admitted to possessing during
negotiations with a government informant. Lopez, however,
appeals the district court’s imposition of a sentence en-
2 Nos. 02-1493 & 02-1734
hancement under § 2D1.1(b)(1) of the United States Sen-
tencing Guidelines Manual (“USSG”) for possession of a
handgun. He also appeals the district court’s decision not
to impose a sentence reduction under USSG § 3B1.2(b)
because he was not a “minor participant” in the offense.
For the reasons set forth below, we affirm as to both De-
fendants.
BACKGROUND
Throughout 1999 and 2000, East Chicago, Indiana, police
officer David Zamora worked with a task force from the
Drug Enforcement Administration (DEA) on an investiga-
tion into drug trafficking by Corral. Officers utilized a
confidential informant to conduct several low-quantity
purchases of cocaine from Corral, usually in the two to
four ounce range. As a result of these transactions, officers
directed the source to negotiate a two-kilogram purchase
with Corral in March 2000. During those negotiations,
which were taped and monitored by police, Corral stated
that he had recently purchased five kilograms of cocaine
but returned the drugs because they were of poor quality.
Corral added that he was expecting a replacement ship-
ment.
Corral arranged to make delivery of one kilogram of
cocaine to the informant in December 2000, and police
established surveillance of Corral on the day of delivery.
During that surveillance, officers witnessed Lopez, whom
Zamora recognized as a dealer from nearby Hammond,
Indiana, meet with Corral in front of a bar in East Chicago.
Officers then followed Lopez to an apartment at 4817
Baring Street, while continuing separate surveillance
of Corral.
Some time later, Corral arrived at 4817 Baring Street,
entered the residence, and remained inside the home for
a short time before leaving. Zamora then directed the
Nos. 02-1493 & 02-1734 3
informant to call Corral and ask if Corral had the kilogram
of cocaine. Corral responded affirmatively, and officers
arrested him shortly thereafter while he was driving in a
car with his girlfriend and her young son. The kilogram of
cocaine was seized from Corral’s girlfriend, who stated
that Corral had handed it to her when police approached
the car.
After being Mirandized, Corral told officers that he had
purchased the drugs from a person named “Jose” at the
address on Baring Street. Corral pointed out the exact
apartment to officers and claimed that “Jose” lived there
with Lopez. Officers transported Corral to jail and con-
tinued surveillance of the home. Not long after Corral’s
arrest, two men left the apartment, and police stopped the
men, who identified themselves as Mizell Quinones and
Jose Herredia. Herredia told police that he lived at 4817
Baring Street with Lopez and gave consent to search the
apartment.
When they arrived at the apartment, Herredia revoked
his consent to search the home, stating that Lopez was
the actual resident of the apartment and would be the
one needed to give consent. The agents knocked on the
door for five minutes but received no answer. Zamora
then obtained a search warrant and entered the apart-
ment. There, they discovered Lopez hiding under clothing
in a closet.
Police also found over five pounds of marijuana hidden
in a bean bag chair, pieces of plastic pipe consistent with
the type used to package the kilogram of cocaine recov-
ered from Corral, approximately $14,000 taped to the bot-
tom of a chair, a small quantity of cocaine hidden in the
bathroom, and a gun hidden in the tank of the toilet. The
entire apartment was sparsely furnished and appeared
to police to be a drug stash house, rather than a normal
residence.
4 Nos. 02-1493 & 02-1734
Corral and Lopez were charged and indicted with con-
spiracy to possess with intent to distribute (Count 1) and
possession with intent to distribute (Count 2) a quantity
of powder cocaine. Both men subsequently pleaded guilty
to the second count, a violation of 21 U.S.C. § 841(a)(1),
without a plea agreement. The district court sentenced
Corral to eighty months’ imprisonment, finding him re-
sponsible for more than six, but less than seven, kilograms
of cocaine.1 The court arrived at this range by adding
three quantities: 1) the various ounce quantities Corral
sold to the informant; 2) the negotiated-for two kilograms;
and 3) the additional five kilograms Corral admitted to
receiving during negotiations with the informant. Corral
appeals only the third quantity for which the district
court found him responsible, arguing that his statement
about the five kilograms amounted to mere puffing and
that he never possessed that amount.
The district court sentenced Lopez to sixty months’
imprisonment, increased his sentence for possession of
the firearm found in the bathroom pursuant to USSG
§ 2D1.1(b)(1), but refused to apply a sentence reduction
under USSG § 3B1.2(b) for being a “minor participant.”
Lopez bases his appeal on a claim that he did not live at
the Baring Street apartment and was only involved in
this transaction to serve as a one-time messenger and to
allow Corral entry to the apartment to pick up the drugs.
1
The Presentence Investigation Report (PSR) prepared for
Corral’s sentencing, however, recommended that Corral be held
responsible for no less than sixty kilograms of cocaine. The PSR
relied upon statements by the police informant, which indicated
that Corral had been moving as much as three to five kilograms
per month over a long period of time. Because police were unable
to document fully this alleged activity, the district court chose
to depart from the PSR’s recommendation when sentencing
Corral.
Nos. 02-1493 & 02-1734 5
In support of his argument, Lopez presented testimony
at his sentencing hearing from his former landlord and
girlfriend, both of whom claimed Lopez lived at an address
on 150th Street in Hammond, Indiana, in December 2000.
The landlord, however, could not produce a receipt for
rent received from Lopez for that month, though he had
receipts for previous months. He also stated that Lopez’s
girlfriend had told him that Lopez no longer lived there
and that she had removed his personal belongings. Agent
Zamora, Corral, and Herredia each testified that Lopez
lived in the apartment on Baring Street. The district
court found that Lopez either lived in the apartment or
worked out of it for some time prior to his arrest.
ANALYSIS
A. Standard of Review
Because Corral and Lopez present only factual chal-
lenges, our review of the district court’s factual determina-
tions at sentencing is limited to a clearly erroneous stan-
dard. United States v. Buggs, 904 F.2d 1070, 1078 (7th
Cir. 1990). We will not overturn those findings unless
we are left with the definite and firm conviction that a
mistake has been made. United States v. Bonilla-Comacho,
121 F.3d 287, 292 (7th Cir. 1997).
B. Corral’s Relevant Drug Quantity
Corral’s only argument is that the district court commit-
ted clear error when it determined that he was responsible
for an additional five kilograms of cocaine, beyond the
negotiated two kilograms. The court’s determination was
based on a statement made by Corral and recorded by
police, while Corral was negotiating a multi-kilogram
purchase with the government’s informant. During those
negotiations, Corral told the informant that he recently
6 Nos. 02-1493 & 02-1734
returned five kilograms of cocaine because the quality
was poor and that he was expecting a replacement ship-
ment soon. Corral now claims that this statement was
merely puffing to bolster his bargaining position by show-
ing his interest in quality control.
By arguing that his statement constituted puffing,
however, Corral has conceded that the statement was
made as a part of his negotiations for a multi-kilogram
purchase of cocaine with the government informant. Ap-
plication Note 12 to USSG § 2D1.1 allows the sentencing
court to consider “[t]ypes and quantities of drugs not
specified in the count of conviction” and to approximate
those quantities, when appropriate, in order to deter-
mine the proper offense level. USSG § 2D1.1, cmt. n.12
(2002). More specifically, Application Note 12 directs the
court to consider negotiated quantities from an uncompleted
drug transaction, unless “the defendant establishes that
he or she did not intend to provide, or was not reasonably
capable of providing,” the negotiated quantity. Id.
We have interpreted this note to mean that negotiated
quantities of undelivered drugs can be included so long
as there was true negotiation and not idle talk. Bonilla-
Comacho, 121 F.3d at 291-92; United States v. Garcia, 69
F.3d 810, 820 (7th Cir. 1995). If a defendant exhibits
the intent and ability to provide multi-kilogram quan-
tities of narcotics, his statements constitute true negotia-
tion and not idle talk. Bonilla-Comacho, 121 F.3d at 292.
In Corral’s case, nothing in his statement indicates
that he was merely bragging to increase his bargaining
position. See id. (“Nothing in Bonilla’s statement indicates
that he was bragging about something he could not ac-
complish or that he was trying to seem like a bigger
drug operator than he really was.”). Prior to negotiating
a multi-kilogram purchase, the informant had purchased
several ounces of cocaine from Corral on multiple occa-
Nos. 02-1493 & 02-1734 7
sions over several months. The two had established an
ongoing, business relationship and Corral did not point to
evidence demonstrating that the informant would look
elsewhere for a supply of drugs, thereby revealing a need
to puff about his prowess as a supplier.
Corral simply made the statement concerning five
kilograms in the midst of negotiations for a two kilogram
purchase, revealing both his intent and ability to obtain
multi-kilogram quantities of cocaine. Initially, it demon-
strated that he had obtained large quantities in the past
and had the ability to do so in the future. In fact, his abil-
ity to obtain a large quantity of drugs is corroborated by
the fact that he was arrested in possession of one kilogram.
Additionally, the government’s source informed police
that Corral had been moving as much as three to five
kilograms per month over a long period of time. Because
police were not able to document fully the entirety of
Corral’s trafficking, the district court did not sentence
Corral based upon the quantity (no less than 60 kilograms)
recommended in his PSR. We note, however, that the
district court was free to consider how the informant’s
statement further corroborated Corral’s intent and ability
to deal in multi-kilogram quantities of cocaine.
This Court has long relied on a defendant’s admissions
to hold that defendant responsible for a certain quantity
of drugs, and we see no reason why Corral’s admission
should be treated differently. See United States v. Spiller,
261 F.3d 683, 691 (7th Cir. 2001) (holding the defendant
responsible for dealing 28,000 grams of crack cocaine as
evidenced by handwritten ledgers belonging to the defen-
dant in which he recorded drug sales); United States v.
Joiner, 183 F.3d 635, 640-41 (7th Cir. 1999) (holding that
the district court did not clearly err by relying on the
defendants’ own statements to determine the drug quantity
for which the defendants were responsible); United States
8 Nos. 02-1493 & 02-1734
v. Jarrett, 133 F.3d 519, 530-31 (7th Cir. 1998) (affirming
the district court’s sentence that relied on undercover
buys as well as the defendants’ own admissions in re-
corded conversations regarding drug activities); United
States v. Benitez, 92 F.3d 528, 538-39 (7th Cir. 1996) (noting
the district court’s proper reliance on recorded conversa-
tions of the defendant to determine the quantity for which
she was responsible); United States v. Ferguson, 35 F.3d
327, 333 (7th Cir. 1994) (finding no clear error where the
district court determined the quantity for which the
defendant was responsible based, in part, upon the defen-
dant’s own admissions). Accordingly, we find that the
district court did not commit clear error by holding
Corral responsible for an additional five kilograms of co-
caine in determining his proper offense level.
C. Lopez’s Sentence Enhancement for Possession
of a Firearm
Lopez’s first argument is that the district court commit-
ted clear error by applying a two-level increase in his
sentence pursuant to USSG § 2D1.1(b)(1) because he was
in possession of a firearm when arrested. Application
Note 3 to § 2D1.1 provides that the enhancement “should
be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the of-
fense.” USSG § 2D1.1, cmt. n.3. The government, therefore,
must first prove by a preponderance of the evidence that
the defendant possessed the firearm. United States v.
Thomas, 294 F.3d 899, 905-06 (7th Cir. 2002); United
States v. Harris, 230 F.3d 1054, 1057 (7th Cir. 2000).
“Actual possession of the firearm need not be established
in order to trigger the enhancement. Instead, proof of
constructive possession, that is, that the defendant had
the power and the intention to exercise dominion or con-
trol of the firearm, is sufficient to warrant the enhance-
Nos. 02-1493 & 02-1734 9
ment.” Thomas, 294 F.3d at 906 (internal citations omitted).
Once possession is established, the burden shifts to the
defendant to prove that it was clearly improbable that the
firearm was possessed in connection with the offense.
Harris, 230 F.3d at 1057.
There is no question that Lopez did not physically pos-
sess the gun when arrested. He was found hiding under
clothing in a closet; the gun was in the toilet tank in the
bathroom. The issues before us, therefore, are: 1) whether
the government proved that Lopez constructively pos-
sessed the gun found in the toilet tank; and 2) whether
Lopez showed that it was clearly improbable that the
gun was connected to the offense.
1. Whether Lopez “possessed” the gun
In United States v. Singleton, this Court upheld applica-
tion of the sentence enhancement when the defendants
were arrested in a home they had transformed into a drug
distribution center. United States v. Singleton, 125 F.3d
1097, 1109-10 (7th Cir. 1997). Inside that home, police
recovered a small arsenal of six weapons, ammunition, and
drugs hidden strategically throughout. Id. We held that,
while no gun was found in the hands of the defendants
when arrested, the sentence enhancement in § 2D1.1(b)(1)
still applied because they constructively possessed the
guns. Id. We have, likewise, held that the § 2D1.1(b)(1)
enhancement can be applied when the defendant knows
of weapons stored in a drug stash house. United States
v. Brack, 188 F.3d 748, 764 (7th Cir. 1999).
Here, the district court made a factual finding that
the Baring Street apartment was a stash house. It was
sparsely furnished, containing almost no food, few clothes,
and little furniture. In fact, the only furniture consisted
of a mattress, a small television, a table (upon which po-
lice found drug packing material consistent with that
10 Nos. 02-1493 & 02-1734
in Corral’s possession), and a couple of chairs, one with
$14,000 taped to the bottom of it. Police also found over
five pounds of marijuana as well as a small quantity of
cocaine and a gun hidden in the bathroom. The district
court further found that Lopez was a trusted part of this
drug operation. He was left in sole possession of the
apartment in order to allow Corral entry to pick up the
drugs. As the sole occupant of a drug stash house on the
day he was arrested, Lopez clearly had the power and
intention to exercise dominion and control over the entire
apartment. The gun’s location in the bathroom does not
diminish Lopez’s control over it.
Lopez claims that he did not know of the gun’s presence
and location in the apartment and also asserts that he
could not have possessed the gun because he was only in
the apartment for the one-time, limited purpose of letting
Corral in to pick up the drugs. The district court, howev-
er, reasonably chose not to accept Lopez’s testimony and
further based application of the § 2D1.1(b)(1) enhance-
ment on credible evidence demonstrating that Lopez ac-
tually lived in the apartment or worked in the residence
on prior occasions. We too reject Lopez’s assertion that
his presence in the apartment was a one-time deal. Accord-
ingly, we find that Lopez constructively possessed the
gun in question.
2. Whether it was “clearly improbable” the gun
was connected to the offense
The next question is whether it was clearly improbable
that the gun was connected to the drug offense. As we
have stated, guns found in close proximity to drug activ-
ity are presumptively connected to that activity. United
States v. Adams, 125 F.3d 586, 597 (7th Cir. 1997). In fact,
we have held that the § 2D1.1(b)(1) enhancement can be
applied when the connection between the gun and the
Nos. 02-1493 & 02-1734 11
drugs is only temporal in nature. United States v. Grimm,
170 F.3d 760, 768 (7th Cir. 1999). In United States v.
Grimm, we held that it was not clearly improbable to
conclude that a connection existed between a gun found
in the defendant’s trunk when he was arrested and a
drug shipment made with the same car six weeks prior
to the arrest. Id.In the case at bar, far more than temporal proximity
connects Lopez to the gun found in the bathroom. The
apartment was clearly a stash house being used for illicit
drug activity. Whether Lopez resided in the apartment
or worked there on prior occasions, as the district court
found, or whether he was in the apartment for the first
time, as he claims, does not affect the connection be-
tween the drug activity and the gun. There is no other
explanation for the presence of the gun in that apart-
ment than to utilize it in connection with the drug activ-
ity taking place inside. Lopez points to nothing that
would contradict this strong presumption, and therefore,
we find that the district court properly applied the
§ 2D1.1(b)(1) sentence enhancement. Finally, Lopez’s
request that the case be remanded for a determination
of his eligibility under USSG § 5C1.2 is denied because
we affirm the district court’s conclusion that Lopez pos-
sessed a firearm in connection with the offense.
D. Lopez’s Role in the Offense
Lopez’s second argument is that the district court clearly
erred by failing to apply a two-level reduction in his sen-
tence because he was a “minor participant” in the offense.
According to USSG § 3B1.2(b), the defendant’s offense
level may be decreased by two levels if the sentencing
court finds him to have been a minor participant in the
offense. USSG § 3B1.2(b) (2002). We have held that a
minor participant is one who is substantially less culpable
12 Nos. 02-1493 & 02-1734
than the average participant. United States v. Jones, 55
F.3d 289, 293 (7th Cir. 1995). In making this determination,
however, we examine “whether the defendant was a minor
participant in the crime for which he was convicted, not
whether he was a minor participant in some broader
conspiracy that may have surrounded it.” United States
v. Brown, 136 F.3d 1176, 1185-86 (7th Cir. 1998). The
burden lies upon the defendant to establish that he was
substantially less culpable, though we will apply this
sentence reduction infrequently. Id. at 1185, 1186.
Lopez argues that his role was minor because he was
not a party to the drug transaction and served only as
a messenger to let Corral know the drugs were ready for
pick up and to admit Corral to the apartment for that
purpose. The district court, however, found that Lopez
either resided in the Baring Street apartment or worked
out of that apartment prior to his arrest. The court also
concluded, quite reasonably, that the apartment served
primarily as a stash house for the parties’ drug business.
Lopez cannot claim he was unaware of drug operations
within the apartment.
By virtue of agreeing to maintain the stash house
and open it to Corral, Lopez’s argument that he was
substantially less culpable than others must fail. First, he
was entrusted with delivery of a large quantity (one
kilogram) of cocaine. Second, Lopez was trusted with sole
possession of the apartment, which contained a large
quantity of marijuana, $14,000, a quantity of cocaine, and
a firearm. Finally, he was aware of Corral’s purpose
for picking up the drugs (to sell them) and Lopez made
that possible through his own actions. See id. at 1186(noting that one cannot be a minor participant with re-
spect to one’s own actions).
Lopez further argues that his minor role is supported
by the fact that he did not stand to profit from the trans-
Nos. 02-1493 & 02-1734 13
action. We have held, however, that whether a participant
stands to profit from the crime does not reflect upon that
person’s role within the offense. Id. at 1186. Lopez pleaded
guilty to possession with intent to distribute cocaine
and each of his actions was directed at possessing the
cocaine and making distribution possible by giving Corral
access to the apartment. For those reasons, we find that
the district court did not clearly err by determining that
Lopez was not substantially less culpable than others
and in denying him a sentence reduction under § 3B1.2(b).
The decision of the district court as to both Corral and
Lopez is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-1-03