United States v. Romero, Raul ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3294 & 05-3681
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAUL ROMERO and RICARDO ROMERO,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 04 CR 164—Barbara B. Crabb, Chief Judge.
____________
ARGUED SEPTEMBER 15, 2006—DECIDED DECEMBER 8, 2006
____________
Before FLAUM, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. On October 6, 2004, a grand jury
in the Western District of Wisconsin returned an 18-count
superseding indictment charging narcotics violations
against seven individuals including Raul and Ricardo
Romero. The indictment resulted from a two-year joint
federal, state and local law enforcement investigation into
drug trafficking by the “Romero organization” in Madison,
Wisconsin. Several individuals in the Romero organization
are brothers including Raul and Ricardo Romero. The
government alleged that Raul Romero was a drug dealer
in the organization while Ricardo Romero was a drug
courier.
2 Nos. 05-3294 & 05-3681
Raul Romero pled guilty to one count of possession of
cocaine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1), and was sentenced to 130 months’ imprison-
ment. Ricardo Romero was found guilty by a jury of one
count of conspiring to distribute cocaine in violation of
21 U.S.C. § 846, one count of possession of five grams or
more of cocaine base with intent to distribute in viola-
tion of 21 U.S.C. § 841(a)(1), and possession of cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1).
The district court sentenced Ricardo Romero to a term of
151 months’ imprisonment. Ricardo Romero appeals his
conviction and both Ricardo and Raul Romero appeal their
respective sentences. We affirm both the conviction and
sentences.
I. BACKGROUND
A. Raul Romero
At his plea colloquy, Raul Romero admitted to selling
cocaine to an undercover police officer on April 7, 2004.
The undercover officer had set up a controlled drug buy
as part of the then ongoing law enforcement investiga-
tion of the Romero organization. Raul Romero sent Joshua
Carrasquillo, another member of the Romero organization,
to deliver 27.9 grams of cocaine to the undercover officer
in exchange for $850. The transaction occurred in the
parking lot of the Kennedy Heights apartment complex
in Madison. Carrasquillo also discussed the possibility of
future drug transactions with the undercover police officer
on behalf of Raul Romero.
In the Presentence Investigation Report (“PSR”), the
Probation Officer determined that Raul Romero was
responsible for selling drugs from at least November 2003
through April 2004. The Probation Officer calculated
Raul Romero’s relevant conduct at 2.5 kilograms of cocaine
Nos. 05-3294 & 05-3681 3
and, applying the November 2004 Sentencing Guidelines,
his base offense level was 28. See U.S.S.G. § 2D1.1(c)(6).
Raul Romero objected to the PSR arguing that he was
responsible for less than two kilograms of cocaine. The
government countered that the 2.5 kilogram amount was
a conservative estimate and the reality was that Raul
Romero was responsible for significantly more drugs than
the 2.5 kilograms of cocaine set forth in the PSR. The
government, however, chose not to pursue an amount
above and beyond the 2.5 kilograms at sentencing. The
government did argue that Raul Romero should not re-
ceive a reduction for acceptance of responsibility if he
contested the 2.5 kilograms.
Raul Romero continued in his objection to the PSR and
the district court conducted a sentencing hearing on July
20, 2005. The government presented in-court testimony
from a Drug Enforcement Administration (“DEA”) agent
who participated in the Romero investigation. The DEA
agent testified as to the government’s investigation of
Raul Romero including undercover drug purchases as
well as physical and electronic surveillance. The govern-
ment also provided in-court testimony from cooperating
witness Jose David Suarez and the prior grand jury
testimony of cooperating witnesses Jacourtney Ticey and
Danny Turner. Suarez, Ticey, and Turner testified as to
their participation in, and witnessing of, drug transac-
tions and other drug related activities involving Raul
Romero.
The district court determined that the government had
met its burden and found Raul Romero responsible for 2.5
kilograms of cocaine. The court also held that Raul Romero
was not eligible to receive a reduction for acceptance of
responsibility. In explaining her decision, the district
court commented:
4 Nos. 05-3294 & 05-3681
I mean it’s very clear to me that, Mr. [Raul] Romero,
you were involved in a lot more than the quantity that
the government said it could prove against you and the
quantity that was listed in the Presentence [Investiga-
tion] Report. And in contesting that, you were really
denying responsibility for your involvement in the
amount of cocaine for which you’re responsible, and
I’m not going to give you an adjustment for acceptance
of responsibility. You knew the risk. You went ahead
and took it. Well, this is what the consequence is.
Tr. at 99-100, July 20, 2005. The district court then
calculated Raul Romero’s advisory Sentencing Guideline
range. Raul Romero’s base offense level was 28 for the
2.5 kilograms of cocaine and this was enhanced by two
levels for obstruction of justice1 for a total offense level of
30. With his criminal history category of III, Raul Romero’s
resulting advisory Sentencing Guidelines range was 121 to
151 months’ imprisonment. The district court, after
considering the sentencing factors set forth in 18 U.S.C.
§ 3553(a), imposed a sentence of 130 months’ imprison-
ment.
B. Ricardo Romero
Ricardo Romero’s conviction is based on his April 30,
2004 delivery of a blue cookie tin that contained cocaine
and cocaine base. The government’s theory of the case
was that Ricardo Romero transported the drugs to his
mother’s apartment on Troy Drive in order to facilitate
a drug sale between Raul Romero and Danny Turner. As
1
The two level enhancement for obstruction of justice was
assessed against both Raul and Ricardo Romero for their
participation in an assault on a potential government witness.
Neither challenged the obstruction of justice enhancement in
their appeal so we shall not discuss it further.
Nos. 05-3294 & 05-3681 5
Ricardo Romero’s present appeal attacks the validity of
both his conviction and sentence, we recount the evidence
presented at trial and sentencing.
On the morning of April 30, 2004, Mary Jane Almeida,
Ricardo Romero’s girlfriend at the time, left her home and
went to her volunteer job at a local elementary school.
Almeida was seventeen and a high school senior. Almeida
and Ricardo Romero had known each other for approxi-
mately one and one-half months prior to April 30, 2004.
Ricardo Romero, who had spent the prior evening at
Almeida’s home, remained at Almeida’s home while she
was at her job. Almeida drove Ricardo Romero’s blue
Oldsmobile Aurora to the volunteer job. She returned to
her home at approximately 11:30 a.m. Almeida and
Ricardo Romero had no prior joint plans to leave her home
after she had returned from her volunteer job. In fact,
Almeida had her own possible plans of going back to her
volunteer job later in the day without Ricardo Romero.
Ricardo Romero then received a telephone call. Almeida
testified, based on her viewing of the caller ID, that the
telephone call had come from Ricardo Romero’s mother’s
apartment on Troy Drive. The call lasted a few minutes
and promptly thereafter Ricardo Romero and Almeida
left for the mother’s apartment. Almeida testified that
Ricardo Romero was holding the blue cookie tin when they
left for the Troy Drive apartment. She drove Ricardo
Romero’s Oldsmobile Aurora accompanying him to the
apartment.
Ricardo Romero and Almeida arrived outside the Troy
Drive apartment at approximately 11:45 a.m. According to
Almeida, upon arriving, but before exiting the Oldsmobile,
Almeida gave the car keys back to Ricardo Romero.
However, he immediately returned the car keys to her
along with the cookie tin and some clothing asking
Almeida to hold onto these items for him. Almeida put the
6 Nos. 05-3294 & 05-3681
cookie tin, keys and clothing into her large size purse and
then she and Ricardo Romero walked into the apartment
building. Upon entering the apartment building, Ricardo
Romero “grabbed” the cookie tin from Almeida’s purse
and then they continued to the apartment. Tr. at 114-15,
June 20, 2005.
Several people were in the mother’s apartment when
Almeida and Ricardo Romero arrived including Raul
Romero, Ricardo Romero’s mother, Ricardo Romero’s
nephews, and Turner. Turner testified that he had gone
with Raul Romero to the Troy Drive apartment with the
intent of receiving cocaine from Raul Romero. Turner had
already paid Raul Romero for one-eighth of an ounce of
cocaine. Raul Romero informed Turner that he did not
have any cocaine when he arrived at the apartment and
they needed to wait for cocaine to be delivered. Turner and
Raul Romero waited for approximately five to ten minutes
and then Ricardo Romero and Almeida arrived. Upon
arriving, Ricardo Romero gave the cookie tin to Raul
Romero and then Raul Romero went to the bathroom
with the cookie tin. Raul Romero then gave cocaine to
Turner and Turner left the apartment. The cookie tin
was returned to Ricardo Romero who gave the cookie tin
back to Almeida. Almeida placed the cookie tin back in
her purse and she and Ricardo Romero left the apart-
ment. Almeida was sitting on the living room couch
reading a magazine during her time in the apartment.
Law enforcement involved in the Romero organization
investigation were performing surveillance of the Troy
Drive apartment on April 30, 2004. Officers witnessed
Turner leave the apartment building. They also witnessed
Ricardo Romero and Almeida enter and exit the apart-
ment building. Law enforcement followed Ricardo Romero
and Almeida as Almeida drove Ricardo Romero’s car away
from the mother’s apartment. The police officers then
executed a valid traffic stop and valid search of the
Nos. 05-3294 & 05-3681 7
Oldsmobile. Almeida’s purse was on the backseat of the
Oldsmobile. The police discovered the cookie tin contain-
ing the cocaine and cocaine base. Ricardo Romero and
Almeida were then arrested. During its subsequent
investigation, the government concluded that Almeida was
neither aware of the drugs in the cookie tin nor involved
in any drug transactions and therefore she was not
charged in this case.
At trial, the government provided testimony from
cooperating witness Suarez to prove that Ricardo Romero
was actively involved in drug transactions in the Romero
organization and thus aware that he was delivering drugs
to Raul Romero on April 30, 2004. Suarez was a drug
dealer who purchased drugs from various members of
the Romero organization including Raul Romero. Suarez
testified that he witnessed Ricardo Romero deliver co-
caine to Raul Romero in the parking lot of an apartment
building on Badger Road in Madison sometime in late
Fall 2003. Suarez also testified that he saw Raul Romero
give money to Ricardo Romero on several occasions.
Ricardo Romero countered that he had no knowledge
that there were drugs in the cookie tin. His strategy at
trial was to attack the credibility of the government’s
witnesses on cross-examination. With Almeida, he focused
on inconsistencies in her story and the fact that her
recollection of events had changed during her various
interviews with the police. He also attempted to impeach
Almeida with her prior statement from a state court
proceeding. The district court sustained the government’s
objection to this line of questioning concluding that the
state case was an unrelated collateral matter that
would unduly confuse the jury. Ricardo Romero also
suggested at closing argument that Almeida was the actual
drug courier for Raul Romero.
With Turner and Suarez, Ricardo Romero attacked their
credibility by pointing out they reached agreements with
8 Nos. 05-3294 & 05-3681
the government that would lower their sentences in
exchange for their cooperation. Ricardo Romero also
attacked Suarez’s testimony by noting that he had initially
failed to make any mention of Ricardo Romero in his prior
statements to law enforcement. Ricardo Romero argued
that Suarez had provided the story about witnessing the
drug delivery in Fall 2003 after law enforcement had
pressed him looking for information on the eve of Ricardo
Romero’s trial.
Ricardo Romero also introduced evidence that he was
incarcerated in the local county jail until December 16,
2003. On cross-examination, Ricardo Romero had been able
to pin down Suarez to a November 2003 date for the
Badger Road drug delivery that Suarez claimed to have
witnessed between Raul and Ricardo Romero. Ricardo
Romero argued to the jury that Suarez’s testimony
was impossible because he was in jail in November 2003
and therefore could not have participated in any drug
transactions at the Badger Road apartment building
parking lot. Without Suarez’s testimony, Ricardo Romero
postulated there was no evidence demonstrating that he
knew what was in the cookie tin, had any intent to distrib-
ute drugs or knew about Raul Romero’s drug dealing
activities.
The government also introduced evidence to establish
that the cookie tin contained both powder cocaine and
cocaine base. The officers who arrested Ricardo Romero
testified that they reached their conclusions about the
drugs they observed in the cookie tin based on their
training and experience. A chemist from the Wisconsin
Department of Justice Crime Laboratory also testified
as to the testing that he performed on the seized drugs.
The chemist stated that it was his opinion that the seized
drugs were both powder cocaine and cocaine base com-
monly referred to as crack cocaine.
Nos. 05-3294 & 05-3681 9
After the jury verdicts, Ricardo Romero filed a motion
for judgment of acquittal pursuant to Rule 29(c) of the
Federal Rules of Criminal Procedure. He argued there
was no evidence proving his knowledge as to the existence
of drugs in the cookie tin. The district court disagreed
holding that there was sufficient evidence for the jury to
have inferred that he knew that he was transporting
drugs in the cookie tin. The district court also noted
that the jury could have credited Suarez with being
confused about the date that he witnessed the drug
delivery between Ricardo and Raul Romero as Suarez was
uncertain about the date that it had occurred. In rejecting
Ricardo Romero’s motion, the district court commented, “In
light of the evidence, what rational jury would believe
that [Ricardo Romero] thought that the tin contained
chocolate chip cookies?” R. 237 at 3.
At sentencing, the district court determined that the
cocaine base in the cookie tin was crack cocaine. Applying
the November 2004 Guidelines, the district court calcu-
lated Ricardo Romero’s base offense level at 26. U.S.S.G.
§ 2D1.1. The offense level was enhanced two levels for use
of a minor, U.S.S.G. § 3B1.4, and an additional two level
enhancement for obstruction of justice, U.S.S.G. § 3C1.1,
for a total offense level of 30. Ricardo Romero had a
criminal history of V and his corresponding Sentencing
Guidelines Range was 151-188 months. The district court,
after considering the factors set forth in 18 U.S.C.
§ 3553(a), imposed a sentence of 151 months’ imprison-
ment.
II. ANALYSIS
A. Raul Romero
On appeal, Raul Romero argues that the district court
erred when it found that he was responsible for 2.5
10 Nos. 05-3294 & 05-3681
kilograms of cocaine and ineligible for a three level
reduction for acceptance of responsibility. Specifically, he
argues that the district court erred by including in the
2.5 kilogram cocaine amount: (1) 1000 grams of cocaine
located in Anthony Romero’s Kennedy Heights apart-
ment, and (2) 850.5 grams of cocaine attributed to him
from Turner’s testimony. Raul Romero concludes that
he is responsible for at least 500 grams but less than
2 kilograms of cocaine. He argues that his total offense
level should only be 25, and with his criminal history
category of III, his proposed advisory Sentencing Guide-
lines range is 70-87 months instead of the 121-151 months
range calculated by the district court.
1. Relevant Conduct
Although Booker has transformed the Guidelines from
binding to advisory, the “district court remains oblig[ated]
to consult the Guidelines.” United States v. Garner, 454
F.3d 743, 747 (7th Cir. 2006) (citing United States v.
Booker, 543 U.S. 220 (2005); United States v. Laufle, 433
F.3d 981, 987 (7th Cir. 2006)). This obligation requires the
district court to have “a correct understanding of [the
Guidelines’] application to the defendant’s conduct.”
United States v. Avila, 465 F.3d 796 (7th Cir. 2006).
Consequently at sentencing, the “district [court] must
resolve [factual disputes], determine relevant conduct by
a preponderance of the evidence, and apply the appropriate
sentenc[ing] enhancements in order to compute the
advisory [G]uidelines Sentenc[ing] range.” United States
v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006) (citing FED.
R. CRIM. P. 32 (i)(3)(B); U.S.S.G. § 6A1.3(b); United States
v. Dean, 414 F.3d 725, 727 (7th Cir. 2005)).
“The [district] court’s sentenc[ing] determinations [as to
factual disputes] must be based on reliable evidence, not
speculation or unfounded allegations.” United States v.
Nos. 05-3294 & 05-3681 11
Noble, 246 F.3d 946, 951 (7th Cir. 2001) (citing United
States v. Pigee, 197 F.3d 879, 889 (7th Cir. 1999); United
States v. Howard, 80 F.3d 1194, 1204 (7th Cir. 1996)). The
defendant’s “due process right to be sentenced on the
basis of accurate information . . . is generally satisfied
when the facts in question are found by a preponderance
of the evidence using information that has a sufficient
indicia of reliability to support its probable accuracy.”
United States v. Lister, 432 F.3d 754, 762 (7th Cir. 2005)
(quoting United States v. Townsend, 73 F.3d 747, 751-52
(7th Cir. 1996); United States v. Salinas, 62 F.3d 855, 859
(7th Cir. 1995); United States v. Ewers, 54 F.3d 419, 421
(7th Cir. 1995) (internal quotations and citations omitted)).
“The [G]uidelines instruct district courts to calculate
sentences based on types and quantities of drugs not
specified in the counts of conviction but that were ‘part
of the same course of conduct or common scheme or plan’
as the convicted offenses.” United States v. Arroyo, 406
F.3d 881, 888-89 (7th Cir. 2005) (quoting U.S.S.G.
§ 1B1.3(a)(2); United States v. Bacallao, 149 F.3d 717, 719
(7th Cir. 1998)). “Two or more offenses are part of a
common scheme or plan when they are substantially
connected to each other by at least one common factor,
such as common victims, common accomplices, common
purpose, or similar modus operandi.” United States v.
Sumner, 265 F.3d 532, 540 (7th Cir. 2001) (quoting
U.S.S.G. § 1B1.3(a)(2), app. n.9; United States v. Acosta, 85
F.3d 275, 281 (7th Cir. 1996)). In determining relevant
conduct, “the district court is entitled to estimate drug
quantity using testimony about the frequency of dealing
and the amount dealt over a specified period of time.”
Noble, 246 F.3d at 952 (citing United States v. Durham,
211 F.3d 437, 444 (7th Cir. 2000)). The district court is also
entitled to credit testimony that it finds reliable even when
that testimony is provided by an “admitted liar, convicted
felon, or large scale drug-dealing, paid government infor-
12 Nos. 05-3294 & 05-3681
mant.” United States v. Blalock, 321 F.3d 686, 690 (7th
Cir. 2003) (quoting United States v. Partee, 301 F.3d 576,
579 (7th Cir. 2002)).
“Generally, a court is entitled to rely on the PSR in rul-
ing on factual issues in the sentencing context so long
as the PSR is based upon sufficiently reliable informa-
tion.” United States v. Willis, 300 F.3d 803, 807 (7th Cir.
2002) (citing United States v. Taylor, 72 F.3d 533, 547 (7th
Cir. 1995)). “When the [district] court relies on such
information in sentencing a defendant, the defendant bears
the burden of showing that the [PSR] is inaccurate or
unreliable.” United States v. Salinas, 365 F.3d 582, 587
(7th Cir. 2004) (citing Taylor, 72 F.3d at 547; United States
v. Mustread, 42 F.3d 1097, 1101-02 (7th Cir. 1994)). The
“defendant cannot show that a PSR is inaccurate by
simply denying the PSR’s truth. Instead, he must produce
some evidence that calls the reliability or correctness of
the alleged facts into question.” United States v. Jones, 209
F.3d 991, 996 (7th Cir. 2000) (quoting Mustread, 42 F.3d
at 1102; United States v. Isirov, 986 F.2d 183, 186 (7th Cir.
1993) (internal quotations omitted)).
“We review the district court’s application of the Guide-
lines de novo and its factual determinations for clear
error.” United States v. Warren, 454 F.3d 752, 762 (7th Cir.
2006) (citing United States v. Davis, 442 F.3d 1003, 1008-
09 (7th Cir. 2006)). “A district court’s finding as to drug
quantity for sentencing purposes is reviewed for clear
error.” United States v. Smith, 308 F.3d 726, 745 (7th Cir.
2002) (citing United States v. Westmoreland, 240 F.3d 618,
629-30 (7th Cir. 2001); United States v. Bacallao, 149 F.3d
717, 719 (7th Cir. 1998)). We will not overturn the
district court’s factual findings unless we are “left with
the definite and firm conviction that a mistake” was
made by the district court. United States v. Bennett, 461
F.3d 910, 912 (7th Cir. 2006) (citing United States v.
Nos. 05-3294 & 05-3681 13
Corral, 324 F.3d 866, 870 (7th Cir. 2003)). “We are reluc-
tant to disturb [a district court’s] credibility determina-
tions absent a compelling reason.” United States v. Noble,
246 F.3d 946, 951 (7th Cir. 2001).
The disputed 1000 grams of cocaine relates to a Janu-
ary 16, 2004 drug sale between Raul Romero and cooperat-
ing witness Ticey. Raul Romero and Ticey arranged the
sale, but Raul Romero directed Ticey to pick up the drugs
at Anthony Romero’s Kennedy Heights apartment. Ticey
was met by Suarez who provided the drugs to Ticey from
a drug stash located inside Anthony Romero’s Kennedy
Heights apartment. While in Anthony Romero’s apart-
ment, Ticey also witnessed 1000 grams of cocaine packaged
in 40 one-ounce bags. Ticey then called Raul Romero to
confirm that he had received the drugs and arranged
for payment. The district court determined that Raul
Romero was selling drugs out of a stash located in Anthony
Romero’s Kennedy Heights apartment and therefore Raul
Romero was responsible for the 1000 grams of cocaine
witnessed by Ticey in Anthony Romero’s apartment.
Raul Romero counters that he was merely referring Ticey
to Anthony Romero and that there was no connection
between himself and Anthony Romero. He points to
application note 6 to Guidelines § 1B1.3(a)(2) that dis-
cusses the factual situation of two street level drug dealers
who have a common source of drugs but otherwise have
no connection. The comment states that the two street
level drug dealers are not responsible for the conduct of
the other dealer, despite having the same supplier.
We find no reason to disturb the district court’s finding
that Raul Romero is responsible for the 1000 grams of
cocaine in Anthony Romero’s Kennedy Height’s apartment.
The drug sale to Ticey and the offense conduct of the
sale to the undercover officer share the common factors of
similar modus operandi and common purpose. See United
14 Nos. 05-3294 & 05-3681
States v. Sumner, 265 F.3d 532, 540 (7th Cir. 2001) (citing
U.S.S.G. § 1B1.3(a)(2), app. n.9; United States v. Acosta, 85
F.3d 275, 281 (7th Cir. 1996)). In both situations, Raul
Romero made a drug sale and then sent the customer
to pick up the drugs from the Kennedy Heights apart-
ment. The drugs were delivered to the customer by a third
party who had received instructions from Raul Romero. In
both situations, the customer discussed potential future
transactions with Raul Romero’s representative who, at
the time, was acting on behalf of Raul Romero. Both
transactions also had the common purpose of distribut-
ing drugs on behalf of the Romero organization.
We are also unconvinced by Raul Romero’s argument
that he and Anthony Romero were merely two “street
level” dealers who were sharing a common stash of drugs
but otherwise were not working together. The district
court heard testimony at the sentencing hearing from the
DEA agent as to the significant number of wiretaps,
undercover buys and other observations made by the
government during its investigation of the Romero or-
ganization. This evidence demonstrated the extent of the
Romero organization’s drug dealing activities and Raul’s
participation in those activities. This evidence is also
extensively set forth in the PSR and Raul Romero has
done nothing to rebut this evidence.
Raul Romero also disputes 850.5 grams included in his
offense level calculation. This amount comes from Turner’s
testimony. Turner testified before a grand jury that he
purchased on average three ounces of cocaine from Raul
Romero per week over a five month basis. He also testified
at Ricardo Romero’s trial that he purchased cocaine from
Raul Romero on April 30, 2004. However, after his grand
jury testimony, but before testifying at Ricardo Romero’s
trial, Turner wrote a note to Raul Romero’s counsel stat-
ing that he had lied to investigators and that Raul Romero
had never sold him drugs. At sentencing, the district court
Nos. 05-3294 & 05-3681 15
credited Turner’s sworn testimony over Turner’s unsworn
note and found Raul Romero responsible for the 850.5
grams. The district court also found that Turner’s testi-
mony of Raul Romero’s drug dealing activities were
corroborated by the testimony of the DEA agent. We see
no reason to overturn the district court’s decision on
crediting Turner’s sworn testimony because “we are
reluctant to disturb a [district court’s] credibility deter-
minations absent a compelling reason.” United States v.
Noble, 246 F.3d 946, 951 (7th Cir. 2001). Raul Romero
provides us no compelling reason to disregard the dis-
trict court’s decision on this issue.
2. Acceptance of Responsibility
The district court properly denied Raul Romero a
reduction for acceptance of responsibility pursuant to
Guidelines § 3E1.1 because Raul Romero frivolously
contested his relevant conduct at the sentencing hearing.
Although a defendant’s entry of a guilty plea may demon-
strate that he has accepted responsibility for his crim-
inal acts, a guilty plea does not qualify the defendant for
an acceptance of responsibility reduction as a matter of
right. United States v. Leahy, 464 F.3d 773, 791 (7th Cir.
2006) (citing United States v. Bothum, 424 F.3d 582, 586
(7th Cir. 2005); United States v. Willis, 300 F.3d 803, 807
(7th Cir. 2002)). “A defendant who ‘falsely denies, or
frivolously contests, relevant conduct that the court
determines to be true has acted in a manner inconsistent
with acceptance of responsibility.’ ” United States v. Sharp,
436 F.3d 730, 735 (7th Cir. 2006) (citing U.S.S.G. § 3E1.1
cmt. n.1(a)).
Not only was there significant evidence to support the
2.5 kilograms of cocaine, but as the government properly
noted at sentencing, the relevant conduct set forth in
the PSR under-reported the extent of Raul Romero’s
16 Nos. 05-3294 & 05-3681
criminal activities. We are unsure as to why the govern-
ment acquiesced to the under-reporting of Raul Romero’s
relevant conduct in the PSR, but we will move beyond
that question as the government did not object at sentenc-
ing and has not cross-appealed. Regardless, there was
more than sufficient evidence to substantiate the 2.5
kilograms of cocaine based on the information set forth
in the PSR and considered by the district court at the
sentencing hearing. The district court’s conclusion that
Raul Romero raised a frivolous argument on the relevant
conduct issue was not a clear error and therefore we see
no reason to disturb the district court’s decision.
In closing, we note that Raul Romero does not otherwise
challenge his Guidelines calculation. The district court
understood the advisory nature of the Guidelines, properly
calculated the Guidelines range and considered the
sentencing factors set forth in 18 U.S.C. § 3553(a). Raul
Romero’s sentence of 130 months’ imprisonment is
within the Guidelines range of 121 to 151 months’ impris-
onment and is therefore entitled to a rebuttable pre-
sumption of reasonableness. See United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). We see no reason to
find Raul Romero’s sentence unreasonable and therefore
it shall be affirmed.
B. Ricardo Romero
1. Sixth Amendment Cross-Examination Claim
On appeal, Ricardo Romero argues that the district
court erred by refusing his attempt to cross-examine
Almeida on her prior inconsistent statement from the
state court proceeding. “The Sixth Amendment right of
confrontation requires that a defendant be given an
opportunity for effective cross-examination.” United States
v. Smith, 454 F.3d 707, 714 (7th Cir. 2006) (citing Pennsyl-
Nos. 05-3294 & 05-3681 17
vania v. Ritchie, 480 U.S. 39, 51 (1987); Delaware v. Van
Arsdall, 475 U.S. 673, 678 (1986)). “The right to cross-
examine is not unlimited; the Confrontation Clause
guarantees only effective cross-examination, not cross-
examination of any type sought by the defendant.” United
States v. Williamson, 202 F.3d 974, 977 (7th Cir. 2000)
(citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).
“[T]rial courts have wide latitude ‘to impose reasonable
limits on . . . cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of
the issues, the witness’s safety, or interrogation that is
repetitive or only marginally relevant.’ ” United States v.
McGee, 408 F.3d 966, 975 (7th Cir. 2005) (quoting Van
Arsdall, 475 U.S. at 679).
Our standard of review is determined through our
evaluation of whether the alleged error implicates “core
values of the [Sixth Amendment] confrontation right” or
instead merely implicates “peripheral concerns.” United
States v. Degraffenried, 339 F.3d 576, 581 (7th Cir. 2003)
(citing United States v. Saunders, 973 F.2d 1354, 1358 (7th
Cir. 1992)). An alleged error implicates a core value
when the defendant was unable to cross-examine a wit-
ness at all on an issue protected by the Sixth Amend-
ment while a peripheral concern involves the extent of
the defendant’s ability to cross-examine on an issue. See,
e.g., United States v. Nelson, 39 F.3d 705, 708 (7th Cir.
1994) (“[O]nce this core function is satisfied by allowing
cross-examination to expose a motive to lie, it is of periph-
eral concern to the Sixth Amendment how much opportu-
nity defense counsel gets to hammer that point home to
the jury.”). “When reviewing the adequacy of a cross-
examination, the question is whether the jury had suffi-
cient information to make a discriminating appraisal of
the witness’s motives and bias.” United States v. McLee,
436 F.3d 751, 762 (7th Cir. 2006) (quoting Nelson, 39 F.3d
at 708; United States v. Robinson, 832 F.2d 366, 373 (7th
18 Nos. 05-3294 & 05-3681
Cir. 1987); United States v. DeGudino, 722 F.2d 1351, 1354
(7th Cir. 1983)). We review claimed errors implicating the
core value of the Sixth Amendment de novo while we
review peripheral concerns for abuse of discretion. Smith,
454 F.3d at 714 (citing Nelson, 39 F.3d at 708).
Ricardo Romero’s theory both at trial and on appeal is
that Almeida is a “ ‘Yes [Wo]man’ for the prosecution,” a
person who is willing to testify in a manner to satisfy
the government, even if that requires her to lie. Ricardo
Romero Br. at 30. Ricardo Romero attempted to demon-
strate Almeida’s alleged bias through extensive cross-
examination of her at trial. He brought out the fact that
she had a scholarship to the University of Wisconsin-
Madison at the time of her arrest on April 30, 2004, and
that she was worried about the potential impact of her
arrest on her future college plans when she was inter-
viewed by the police. Cross-examination also brought out
that her relationship with Ricardo Romero ended after
the arrest. He was able to examine her regarding her
concerns about being prosecuted after the arrest but that
she was not prosecuted after she agreed to cooperate with
the government. Ricardo Romero also cross-examined
Almeida about prior inconsistent statements that she
had made to the police during the various interviews
conducted after the April 30, 2004 arrest. He was able to
draw out inconsistencies in her statements to the police
about when Almeida saw him in possession of the cookie
tin. This allowed Ricardo Romero to imply that Almeida
had changed her story in favor of the government once
she began cooperating with the government.
However, the district court prevented Ricardo Romero
from cross-examining Almeida on an alleged inconsistent
statement that she made while testifying in a state
court proceeding. The state court proceeding involved a
battery charge against Ricardo Romero. The police ques-
tioned Almeida about both the battery and the cookie tin
during her interviews. Ricardo Romero argues that he
Nos. 05-3294 & 05-3681 19
should have been allowed to cross-examine Almeida on
the inconsistent statement between Almeida’s trial testi-
mony in the battery case and her original statements to
the police on the battery issue. The government objected
to this line of impeachment and the district court agreed
with the government holding that the battery case was
too attenuated from the present drug case to be dis-
cussed and would also unduly confuse the jury.
We conclude that the district court’s exclusion of cross-
examination on the Almeida’s prior statement in the
state court battery case implicated a peripheral concern
and therefore we review the district court’s decision
under the abuse of discretion standard. In reviewing the
record on this issue, we hold that the district court did not
abuse its discretion by preventing cross-examination on
Almeida’s inconsistent statements in the state battery
case. Ricardo Romero was given ample opportunity to
cross-examine Almeida on her potential biases and rea-
sons for potentially not telling the truth while testifying
at trial. He was also able to show prior inconsistent
statements between her police interviews and her in-
court testimony at trial. The district court allowed
Ricardo Romero a substantial opportunity to pursue his
theory of “Almeida as the ‘Yes Woman’ ” for the prosecu-
tion through several areas of impeachment. The district
court acted within the scope of her discretion by pro-
hibiting cross-examination on the battery case as that
cross-examination was only marginally relevant and
would have confused the issues before the jury. United
States v. McGee, 408 F.3d 966, 975 (7th Cir. 2005) (citing
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
2. Sufficiency of the Evidence
Ricardo Romero argues that the district court erred
when she denied his motion for judgment of acquittal
20 Nos. 05-3294 & 05-3681
based on the sufficiency of the evidence supporting the
conviction. He argues that there was no evidence estab-
lishing that he had any knowledge that there were drugs
in the cookie tin. “We review the district court’s denial of
a motion for judgment of acquittal de novo.” United States
v. James, 464 F.3d 699, 705 (7th Cir. 2006) (citing United
States v. Jones, 371 F.3d 363, 365 (7th Cir. 2004); United
States v. O’Hara, 301 F.3d 563, 569 (7th Cir. 2002)). “A
party challenging the sufficiency of the evidence support-
ing a jury conviction faces a steep uphill battle.” United
States v. Moore, 425 F.3d 1061, 1072 (7th Cir. 2005)
(quoting United States v. Graham, 315 F.3d 777, 781 (7th
Cir. 2003)). “We must determine ‘whether, after viewing
the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.’ ”
United States v. Haddad, 462 F.3d 783, 791 (7th Cir. 2006)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
There is sufficient evidence in the record to support
the jury’s finding that Ricardo Romero knew that there
were drugs in the cookie tin and therefore we must uphold
his conviction. Most notable is Ricardo Romero’s change
in deciding who should hold the cookie tin upon arriving
outside the Troy Drive apartment. Before arriving outside
the apartment, he personally held the cookie tin. However,
once they arrived, he gave the tin to Almeida to hold for
the walk into the apartment building but then immediately
“grabbed” the cookie tin from her purse once in the apart-
ment building. Tr. at 114-15, June 20, 2005. Almeida was
also given the cookie tin to hold upon leaving the apart-
ment. The jury could have also considered Suarez’s
testimony that Ricardo Romero had previously acted as
a drug courier for Raul Romero in determining that
Ricardo Romero was knowingly acting as a drug courier for
Raul Romero on April 30, 2004.
Nos. 05-3294 & 05-3681 21
Much of Ricardo Romero’s argument as to Almeida’s
testimony is nothing more than an attempt to reargue the
evidence. However, “[v]iewing the evidence in the light
most favorable to the prosecution means that on review
we will not—despite defendants’ frequent requests to do
so—‘weigh the evidence or second guess the jury’s credibil-
ity determinations.’ ” United States v. Stevens, 453 F.3d
963, 965 (7th Cir. 2006) (quoting United States v. Gardner,
238 F.3d 878, 879 (7th Cir. 2001)). The jury rejected
Ricardo Romero’s impeachment efforts of Almeida on the
issue of his knowledge and found her version of the
events credible.
We must also note that Ricardo Romero’s argument
misstates Almeida’s role in this case. He argues that the
evidence in the case demonstrated that she had no knowl-
edge that there were drugs in the cookie tin. He then
argues that the he was in the same position as Almeida
and therefore concludes that if the evidence demonstrated
that she lacked knowledge then he too lacked knowledge
of drugs in the cookie tin. This argument is incorrect
because only Ricardo Romero’s knowledge was at issue
at trial, Almeida’s knowledge was not an issue before
the jury. The fact that the prosecution decided not to
charge Almeida is irrelevant on the issue of her knowledge
as the prosecutor, acting in concert with the grand jury,
has significant discretion in deciding whether or not to
bring a charge. See United States v. O’Neill, 437 F.3d 654,
660 (7th Cir. 2006) (Posner, J., concurring) (citing Wayte v.
United States, 470 U.S. 598, 607 (1985); United States v.
Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992) (“The
exercise of prosecutorial discretion is a prerogative of the
executive branch of government.”)).
Ricardo Romero’s final argument is that Suarez’s
testimony about the Fall 2003 drug delivery to the Badger
Road apartment building parking lot must be rejected as
incredible as a matter of law. Ricardo Romero was able to
22 Nos. 05-3294 & 05-3681
introduce evidence that he was incarcerated at the local
county jail until December 16, 2003 and therefore
could not have participated in the alleged drug delivery.
“We will not upset the jury’s credibility determinations
unless ‘exceptional circumstances’ exist; that is, it was
‘physically impossible for the witness to observe that
which he claims occurred, or impossible under the laws of
nature for the occurrence to have taken place at all.’ ”
United States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006)
(quoting United States v. Smith, 393 F.3d 717, 719 (7th
Cir. 2004)). Suarez testified on direct examination that he
witnessed the drug delivery between Ricardo and Raul
Romero on Badger Road sometime in the winter time. He
also said that he did not know an exact date. On cross
examination, Ricardo Romero tried to pin Suarez down on
a date. Suarez was unable at first to give an exact date
saying that the delivery occurred in the winter time and
that it was cold outside. He also said that he could not
remember if it was before or after Thanksgiving as he
did not pay attention to that holiday. However, Ricardo
Romero was eventually able to get Suarez to say Novem-
ber for the date.
A rational jury could have credited Suarez as being
unsure about the exact date of the Badger Road drug
delivery. The jury could have also believed that Suarez
confused the date that he witnessed the drug delivery as
his original answer focused on the fact that it was winter
time and cold outside. Furthermore, even if Suarez’s
testimony is rejected, we find that there was still suf-
ficient evidence for a rational jury to have found that
Ricardo Romero had knowledge that there were drugs in
the cookie tin on April 30, 2004.
3. Sentencing
Ricardo Romero argues that the district court com-
mitted clear error when she found at sentencing that the
Nos. 05-3294 & 05-3681 23
cocaine base seized in the cookie tin was crack cocaine. We
have previously held that the enhanced penalties for
cocaine base apply to the specific subset of cocaine base
know as “crack cocaine.” See United States v. Edwards, 397
F.3d 570, 571-72 (7th Cir. 2005). “ ‘Crack’ [cocaine] is the
street name for another form of freebase cocaine, produced
by mixing cocaine hydrochloride with baking soda and
water, boiling the mixture until only a solid substance
is left, and allowing it to dry, resulting in a rocklike
substance.” Id. at 574. However, “we have repeatedly held
that the government can prove a substance is crack
[cocaine] by offering testimony from people familiar with
the drug.” United States v. Anderson, 450 F.3d 294, 301
(7th Cir. 2006). Individuals familiar with crack cocaine
and therefore able to identify it include veteran narcotics
agents and forensic chemists. United States v. Linton, 235
F.3d 328, 329-30 (7th Cir. 2000) (citing United States v.
Abdul, 122 F.3d 477 (7th Cir. 1997)). The district court
properly credited the testimony of the narcotics officers
and government chemist that the cocaine base seized
from Ricardo Romero was crack cocaine and we see no
reason to find that this was a clear error.
Finally, Ricardo Romero argues that his sentence
should be overturned because the imposition of the 100:1
crack cocaine to powder cocaine ratio unreasonably
creates an unwarranted sentencing disparity. However,
“a district judge is required to abide by the [100:1] crack
cocaine to cocaine powder ratio when applying the Sen-
tencing Guidelines to a defendant’s conduct.” United States
v. Hankton, 463 F.3d 626, 629 (7th Cir. 2006) (quoting
United States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006)).
Ricardo Romero provides no valid argument for us to find
that his sentence was unreasonable. The district
court understood the advisory nature of the Guidelines,
properly calculated the Guidelines range and considered
the sentencing factors set forth in 18 U.S.C. § 3553(a).
24 Nos. 05-3294 & 05-3681
Ricardo Romero’s sentence of 151 months’ imprisonment
is within the Guidelines range of 151 to 188 months’
imprisonment and is therefore entitled to a rebuttable
presumption of reasonableness. See United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). We see no
reason to find Ricardo Romero’s sentence unreasonable
and therefore it shall be affirmed.
III. CONCLUSION
Raul Romero’s sentence and Ricardo Romero’s convic-
tion and sentence are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-8-06