United States v. Ocampo, Miguel ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4277
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL OCAMPO,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 79—Elaine E. Bucklo, Judge.
____________
ARGUED DECEMBER 7, 2006—DECIDED JANUARY 8, 2007
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Before BAUER, MANION, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Miguel Ocampo pleaded guilty
to distributing 52.1 grams of methamphetamine in vio-
lation of 21 U.S.C. § 841(a)(1) and possessing a firearm
with a removed serial number in violation of 18 U.S.C.
§ 922(k). In calculating his Advisory Guidelines sentenc-
ing range, the district court imposed a two-level enhance-
ment for using a firearm during the offense and declined
to reduce the sentence for cooperation. The district
court sentenced Ocampo to 108 months’ imprisonment,
which he now appeals. We affirm.
2 No. 05-4277
I. Background
On December 7, 2004, Ocampo met an undercover
government cooperating source (“CS”) at Ice Bar in Chi-
cago, Illinois, where Ocampo sold the CS 13.9 grams
of crystal methamphetamine.
On January 12, 2005, Ocampo agreed to provide the CS
with an additional two ounces of crystal methamphet-
amine. That night in a series of recorded conversa-
tions, Ocampo informed the CS that he was in Skokie,
Illinois and the transaction would be delayed due to traffic.
He told the CS that he had to go home to retrieve the
methamphetamine. When the CS indicated that her
fictitious customer was impatient, Ocampo suggested
they meet at Ocampo’s home. Instead, Ocampo and the
CS agreed to meet in a couple hours at Ice Bar. Undercover
agents then followed Ocampo to his home before he arrived
at the bar. There, he spoke to the CS and an undercover
Drug Enforcement Administration task force officer.
Eventually the transaction occurred across the street at a
restaurant.
Pursuant to a warrant, DEA agents arrested Ocampo at
his residence in Cicero, Illinois on January 27, 2005.
Agents recovered a Intratec Tec-22 weapon with a re-
moved serial number, a banana clip, and twenty-six
rounds of ammunition from the dresser drawer of his
bedroom. In the same dresser drawer, agents found a
loaded .40 caliber Taurus semiautomatic handgun, a
handheld digital scale, and two small plastic bags with
quantities of a controlled substance. In an adjacent
dresser drawer, agents found a first-aid kit containing
drug paraphernalia, drug packaging materials, and clear
plastic ziploc bags. On the bedroom floor, agents found
a handheld police scanner and a police call frequency
guide book. Agents also found small amounts of marijuana,
methamphetamine, brown heroin, and numerous pipes.
No. 05-4277 3
On top of Ocampo’s dresser was a drug ledger listing his
customers, including the CS, and the dollar amounts that
those customers owed him. The search also uncovered a
surveillance camera hidden in a birdhouse outside his
residence with a live feed to a television in Ocampo’s
bedroom.
On April 6, 2005, a grand jury indicted Ocampo with
knowingly and intentionally distributing methamphet-
amine in excess of 5 grams in violation of 21 U.S.C.
§ 841(a)(1); knowingly and intentionally distributing
methamphetamine in excess of 50 grams in violation of
21 U.S.C. § 841(a)(1); and knowingly possessing a firearm
which had the manufacturer’s serial number removed,
obliterated, or altered in violation of 18 § U.S.C. 922(k).
Ocampo pleaded guilty and acknowledged that he went
home to get the drugs.
At the sentencing hearing, several agents testified to
the above facts. Ocampo asserted, however, that the
weapon in his home was not involved in the offense
because he maintained that the drugs were not at his
home. Additionally, Ocampo argued for a downward
departure in sentencing for his previous cooperation
with authorities. Ocampo testified that drug sales were
his sole means of livelihood and that he would use two
to five grams of crystal methamphetamine a day to sup-
port his addiction. He testified that he only kept personal
use quantities of drugs at his home and the plastic bags
were to portion out his personal use of drugs. He also
admitted that he used the digital scale found in his
bedroom to weigh the drugs that he sold to his customers
but insisted that he weighed the grams in his truck or at
a nearby motel. He stated that on this occasion, his source
in Skokie loaned him two ounces of crystal methamphet-
amine for the CS. Ocampo said he then went home to
get high but at other times he would also get high at Ice
Bar. He testified that after he returned home from Skokie,
4 No. 05-4277
while he was inside his home, he left the drugs for the
CS under the driver’s seat of his truck.
Ocampo explained that two months prior to his arrest,
he took the Intratec Tec-22 weapon and ammunition from
another drug dealer when the dealer was under the
influence of drugs and acting dangerously. Ocampo also
stated that two days prior to his arrest, a different
drug dealer, Pedro Martinez, dropped off the .40 caliber
Taurus semiautomatic handgun at his apartment and
the clip fell out of the gun.
Ocampo participated in a proffer session with the
government in which he identified other narcotics dealers,
including Pedro Martinez, who was also identified by
a cooperating source. Ocampo’s girlfriend cooperated
with the government in its investigation of Martinez by
working as a confidential source in an effort to benefit
Ocampo’s case. The parties stipulated that Ocampo
rejected an offer to postpone his sentencing hearing in
order to allow him and his girlfriend to complete their
cooperation with the government.
At sentencing, the district court determined that
Ocampo’s total offense level was 31. This included a two-
level increase pursuant to U.S.S.G. § 2D1.1(b)(1) because
the offense conduct involved the possession of a danger-
ous weapon and a three-level reduction for his timely
acceptance of responsibility. The district court found
that it was more likely than not that Ocampo had the
drugs at his home, thus it was not “clearly improbable
that the weapons [were] connected with the offense.” See
U.S.S.G. § 2D1.1(b)(1) and Application Note 3. The dis-
trict court determined that Ocampo had a criminal
history category I, resulting in an advisory guideline
range of 108-135 months. The court declined a reduction
for cooperation, sentencing Ocampo to 108 months’ im-
prisonment. Ocampo timely filed this appeal.
No. 05-4277 5
II. Analysis
In the post-Booker era, we continue to review the district
court’s factual findings at sentencing for clear error and
the application of those facts to the Sentencing Guidelines
de novo. United States v. Haddad, 462 F.3d 783, 793 (7th
Cir. 2006).
Ocampo challenges the district court’s conclusion that
a weapon was used in the offense based on its deter-
mination that the drugs were at his home. Ocampo
contends that the government failed to demonstrate
that the weapon was either present or connected to the
offense. We disagree.
It is uncontroverted that Ocampo had been in possession
of the Intratec Tec-22 weapon at his home for approxi-
mately two months prior to his arrest. Ocampo does not
dispute that he declared his intention to retrieve the
methamphetamine from his home. Moreover, the evi-
dence of drug distribution at Ocampo’s home was over-
whelming. In evaluating evidence, trial judges are respon-
sible for credibility determinations. United States v. Eddy,
8 F.3d 577, 583 (7th Cir. 1993). Here, the district court
weighed the credibility of the witnesses and rejected
Ocampo’s testimony. We find the district court properly
determined that the weapon was connected to the offense.
Ocampo also asserts that the district court erred by
failing to give Ocampo credit for the cooperation he
provided to the government. The district court did not
overlook Ocampo’s cooperation with the government;
rather, the district court properly considered both
Ocampo’s past cooperation and his current unwilling-
ness to cooperate before concluding that it was not sub-
stantial and did not warrant a reduction. We find that
the district court did not err in rendering this conclusion.
6 No. 05-4277
III. Conclusion
Accordingly, the judgment of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-8-07