United States v. Bustamante, Miguel ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3388, 04-1469, 05-4798 & 05-4799
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL BUSTAMANTE, RAPHAEL PENA,
ABRAHAM ESTREMERA, and STEVE LISCANO,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 719—James F. Holderman, Chief Judge.
____________
ARGUED MAY 3, 2007—DECIDED JULY 16, 2007
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
RIPPLE, Circuit Judges.
FLAUM, Circuit Judge. On November 20, 2002, a grand
jury indicted Miguel Bustamante, Raphael Pena, Abraham
Estremera, and Steve Liscano for a number of crimes
related to a drug conspiracy in Aurora, Illinois. All four
defendants were charged with knowingly participating
in a conspiracy to distribute and possess with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a) &
846. Estremera and Pena were also charged with being
felons in possession of firearms, in violation of 18 U.S.C.
§ 922(g), and Bustamante was charged with possessing
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1); being a felon in possession of a firearm, in
2 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
violation of 18 U.S.C. § 922(g); and possessing a firearm
in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c).
Shortly after he was charged, Bustamante filed a motion
to suppress evidence that police found in his vehicle. The
district court denied the motion, and Bustamante entered
a conditional guilty plea, reserving the right to appeal the
district court’s ruling. The other defendants went to trial.
A jury found them guilty on all charges and determined
that the conspiracy involved more than five kilograms of
cocaine. Bustamante appeals the district court’s denial of
his motion to suppress, and the other three defendants
appeal their convictions and sentences.
For the following reasons, we affirm Liscano’s,
Estremera’s, and Pena’s convictions and Liscano’s and
Estremera’s sentences. We also affirm the district court’s
ruling on Bustamante’s motion to suppress. We vacate
Pena’s sentence, however, and remand for resentencing.
I. Background
Between June 2000 and July 2002, members of the Latin
Kings street gang operated a drug conspiracy in Aurora,
Illinois. The conspiracy’s primary drug distributor was
a man named Juan Corral, whose ultimate downfall was
a penchant for discussing drug deals over the phone. After
the government recorded more than a thousand phone
calls between Corral and his drug associates, a federal
grand jury indicted Corral, Liscano, Estremera, Pena,
Bustamante, and six others, alleging that they conspired
to distribute drugs and possessed illegal weapons in the
process.
In May 2003, Corral pleaded guilty and agreed to testify
against his alleged co-conspirators in exchange for le-
niency. Liscano, Estremera, and Pena went to trial, and
the government’s evidence primarily consisted of Corral’s
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 3
testimony and the recorded telephone conversations bet-
ween Corral and each defendant. That evidence, recited
in the light most favorable to the prosecution, is summa-
rized in relevant part below.
A. Liscano
Liscano, a member of the Latin Kings, met Corral in
1992. Between September 2001 and June 2002, Corral
fronted Liscano at least sixteen kilograms of cocaine
during monthly drug deals. On May 13, 2002, Liscano
called Corral to advise him that a police officer was
checking Liscano’s license plate and that the officer
might have seen them complete an earlier drug transac-
tion. On May 17, 2002, Liscano called Corral and told him
that federal law enforcement officers were at a restaurant
near Corral’s residence and that Corral should warn other
Latin King members, including Estremera, about the
possibility of a raid. Liscano and Corral had other conver-
sations in which they discussed in coded language when
Corral would be supplied with drugs.
The district court gave Liscano a mandatory sentence of
life in prison on the conspiracy charge. The sentence was
based on Liscano’s conviction for distributing more than
five kilograms of cocaine and his two prior felony drug
convictions. See 21 U.S.C. § 841(b)(1)(A).
B. Estremera
Estremera, also a Latin King, met Corral in 1988 or
1989. From February 2002 to June 2002, Corral fronted
Estremera cocaine once every three weeks in an amount
totaling approximately seven kilograms. Corral would
either personally deliver the cocaine to Estremera or leave
it in Estremera’s garage, which Corral also used to store
cocaine for other customers.
4 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
The government recorded numerous phone calls in
which Estremera spoke with Corral about drug dealing.
He asked when Corral would be supplied, informed Corral
when he had money to pay him, asked if it was okay to use
other suppliers when Corral was out of drugs, and spoke
about Corral’s use of his garage. On one occasion,
Estremera and Corral discussed how the police might
have spotted them during a transaction, and on yet
another occasion, Corral told Estremera that he had seen
police near Corral’s home.
On July 24, 2002, police arrested Estremera in his home
and recovered a small scale, over $13,000 in cash, and a
gun. After advising Estremera of his Miranda rights,
police played for him a number of recorded telephone
conversations between him and Corral. Estremera admit-
ted that the voice on the recordings was his and said that
he was willing to accept responsibility for his actions.
At sentencing, the district court found that Estremera
was responsible for more than 150 kilograms of cocaine
and that his total offense level was 40. With a criminal
history category of VI, his Guidelines range on the conspir-
acy charge was 360 months to life. Estremera argued that
the bulk of his prior criminal convictions occurred more
than ten years before his conviction in this case and that
he now realized that his relationship with the Latin Kings
was “illusory and tenuous.” He also pointed out that he
had been attempting to better himself by taking GED and
Bible study classes in prison and that a life sentence
would take away any incentive for him to continue engag-
ing in such activities.
The district court rejected Estremera’s argument and
sentenced him to life in prison on the conspiracy charge
and a concurrent 120-month sentence on the felon in
possession charge. The court explained that it had to
consider the factors outlined in 18 U.S.C. § 3553(a) and
then briefly recited each one. It noted that Estremera had
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 5
a substantial criminal history and that the offense had “all
types of ramifications in our communities, our society, and
in the world.” It also characterized the offense as “very
serious” and added that it was issuing the sentence to
promote respect for the law, to provide just punishment
for the offense, and to afford adequate deterrence to
criminal conduct.
C. Pena
Pena, another member of the Latin Kings, met Corral
in 1988. Between February 2002 and June 2002, Corral
fronted Pena cocaine approximately once a month, in
amounts totaling six to eight kilograms. Police recorded a
number of phone calls in which Pena told Corral that he
wanted to purchase cocaine. In one call, Pena asked
Corral, who was driving at the time, if Corral could sell
him a quarter kilogram of cocaine. When Corral replied
that he could not, Pena asked Corral if any passengers
in his car had cocaine to sell. Corral asked a friend in the
car if he had any cocaine, but the friend said that he had
none.
On July 24, 2002, police arrested Pena at 958 Oliver in
Aurora, where, according to Corral, Pena lived with his
girlfriend. FBI agents recovered a handgun inside a man’s
black jacket on a shelf in a first-floor closet, a police
scanner, a scale, more than $10,000 in cash, and a gang
ledger. According to Detective Jeff Wiencek of the Aurora
Police Department, the ledger recorded the payment of the
Latin King members’ monthly dues and the gang’s pur-
chase of guns. Detective Wiencek conceded, however, that
he did not know whether the ledger was created in further-
ance of the conspiracy alleged in the indictment.
At sentencing, the district court found that Pena was
responsible for more than 150 kilograms of cocaine be-
6 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
cause he knew that other people were involved with Corral
in the distribution of drugs. The court said that the
phone call in which Pena asked Corral if there was any-
one else in the car who could sell him drugs demon-
strated that “Pena knew that others were involved, others
could be trusted, others were in the business of distribut-
ing drugs pursuant to the conspiracy.” The district court
found that Pena’s base offense level was 38 and increased
it by two levels for possession of a firearm. With a criminal
history category of IV, Pena’s Guidelines range was 360
months to life.
Pena argued for a sentence at the low end of the Guide-
lines range, asserting that he was a minimal participant
in the conspiracy and that a thirty year sentence would
be more than sufficient to accomplish the sentencing goals
set out in § 3553(a). The district court rejected Pena’s
argument and sentenced him to life in prison on the con-
spiracy count and a concurrent 120 month sentence on the
felon in possession count. The court emphasized the need
to deter other gang members from dealing drugs.
D. Bustamante
On October 23, 2002, police arrested Bustamante,
transported him to the Aurora Police Department, and
advised him of his Miranda rights. Bustamante invoked
his right to remain silent and his right to counsel, and
police asked him to sign a consent to search his vehicle. He
signed the form, and when police searched the vehicle,
they found drugs and a firearm.
Bustamante moved to suppress the evidence found
during the search, but the district court denied the mo-
tion. On May 15, 2003, Bustamante entered a blind guilty
plea. The district court sentenced him to a total of 123
months in prison.
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 7
II. Analysis
A. Liscano, Estremera, and Pena
Liscano, Estremera, and Pena argue that the govern-
ment offered insufficient evidence to prove that they were
part of a conspiracy to distribute drugs. They also argue,
alternatively, that the government offered insufficient
evidence to prove that they were part of the conspiracy
alleged in the indictment and that a there was a fatal
variance between the indictment and the proof at trial. See
United States v. Stigler, 413 F.3d 588, 593 (7th Cir. 2005).
The government responds that the evidence was suf-
ficient to prove the conspiracy alleged in the indictment,
and, at the very least, was sufficient to prove that the
defendants conspired with Corral. Moreover, the govern-
ment contends, any variance was harmless.
1. Sufficiency of the Evidence
When reviewing the sufficiency of the evidence, the
Court views the evidence in the light most favorable to the
government and upholds the verdict if a jury reasonably
could find the essential elements of the crime beyond a
reasonable doubt. See United States v. Hicks, 368 F.3d 801,
804-05 (7th Cir. 2004). Put another way, the Court will
reverse only if “the fact finder’s take on the evidence was
wholly irrational.” United States v. Hoogenboom, 209 F.3d
665, 669 (7th Cir. 2000).
To prove a drug conspiracy, the government must show
more than a series of spot sales because buying and selling
drugs, without more, does not constitute a conspiracy. See
United States v. Thomas, 284 F.3d 746, 752 (7th Cir.
2002). Rather, the government has to prove “an under-
standing—explicit or implicit—among co-conspirators to
work together to commit the offense.” United States v.
Curtis, 324 F.3d 501, 505 (7th Cir. 2003). Factors indicat-
8 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
ing a drug conspiracy include transactions that involve
large quantities of drugs, prolonged cooperation between
parties, standardized dealings, a level of mutual trust, and
sales on credit. See United States v. Johnson, 437 F.3d 665,
676 (7th Cir. 2006) (holding that the government offered
sufficient evidence that the defendant conspired with a
supplier where the defendant twice received distribution-
size quantities of heroin on credit); United States v.
Medina, 430 F.3d 869, 881-82 (7th Cir. 2005) (holding that
the government offered sufficient evidence of a conspiracy
where the defendants received large amounts of drugs
from a dealer on credit); United States v. Smith, 393 F.3d
717, 720 (7th Cir. 2004) (holding that the government
offered sufficient evidence of a conspiracy where the
defendant received a large quantity of drugs on credit a
single time and then, when the quantity of drugs was
less than expected, offered to return to his supplier to
obtain the correct amount).
In this case, the government offered sufficient evidence
to prove that Liscano, Estremera, and Pena engaged in a
conspiracy to distribute drugs. Corral fronted each of
them large quantities of drugs on multiple occasions, so
Corral’s investment return depended on the defendants’
success in reselling the drugs. The government offered
little evidence of prolonged cooperation or standardized
dealings, but that type of evidence—though relevant—is
not necessary to sustain a conviction. As in Johnson and
Medina, the jury reasonably could have found, given the
large sales of drugs on credit, that the defendants
agreed to help Corral ply his trade.1
1
The defendants rely on United States v. Thomas, 284 F.3d 746,
751-52 (7th Cir. 2002), for the proposition that their relation-
ship with Corral was nothing more than a buyer-seller relation-
ship, but in Thomas, the defendant drug dealer never sold his
drugs on credit.
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 9
2. Variance
Having resolved that the government’s evidence was
sufficient to prove that Liscano, Estremera, and Pena
engaged in a drug conspiracy with Corral, the next ques-
tion is whether there was evidence that they agreed to
participate in the single, larger conspiracy alleged in the
indictment. If not, then there was a variance between the
indictment and the proof at trial. See United States v.
Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991). Even if
there was a variance, however, it would not necessarily
affect the validity of the defendants’ convictions or sen-
tences, because “a prosecutor may elect to proceed on a
subset of the allegations in the indictment, proving a
conspiracy smaller than the one alleged.” United States v.
Duff, 76 F.3d 122, 126 (7th Cir. 1996). We will reverse
only when a defendant is prejudiced by evidence that
relates to other conspiracies or when the district court
increases a defendant’s sentence based on conduct unre-
lated to the conspiracy in which he participated. See
Townsend, 924 F.2d at 1388-89.
In this case, the larger, single conspiracy was a “hub and
spoke” conspiracy, an arrangement in which a core con-
spirator (in this case, Corral) moves from “spoke to spoke,
directing the functions of the conspiracy.” United States v.
Chandler, 388 F.3d 796, 807 (11th Cir. 2004). For a hub
and spoke conspiracy to function as a single unit, a rim
must connect the spokes together, for otherwise the
conspiracy is not one but many. Id. In other words, for
such a conspiracy to exist, “those people who form the
wheel’s spokes must have been aware of each other and
must do something in furtherance of some single, illegal
enterprise.” United States v. Levine, 546 F.2d 658, 663 (5th
Cir. 1977); see also United States v. Whaley, 830 F.2d 1469,
1474 (7th Cir. 1987).
In Townsend, this Court found a variance between the
proof and indictment of a drug conspiracy, where a drug
10 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
supplier, Diaz, conspired to distribute drugs with a man
named Marquez. Diaz sold Marquez drugs on numerous
occasions, but Diaz had no interest in what Marquez did
with the drugs after he received them. Diaz knew that
Marquez sold the drugs to other individuals and that
Marquez purchased drugs from other suppliers, but Diaz
did not further those endeavors. We held that Diaz
conspired with Marquez, but not the others named in the
indictment, stating, “[Diaz] knew that Marquez had
extensive drug dealings beyond those in which he was
involved . . . , but that knowledge alone did not make
him a coconspirator with those involved in Marquez’s
other deals.” Townsend, 924 F.2d at 1397. The Court made
a similar point with respect to Diaz’s supplier, Claudio.
“Claudio obviously knew that Diaz was reselling the
drugs in bulk, but the government presented no evidence
indicating that he had any stake in the subsequent
distribution of those drugs.” Id. at 1398.2
In this case, there was no variance with respect to the
proof against Liscano. The government offered two phone
calls in which Liscano told Corral that he had seen law
enforcement officers near Corral’s residence. In one of
those calls, Liscano told Corral to warn the other Latin
Kings, including Estremera, about a possible raid. Given
our extremely deferential review of the sufficiency of
the evidence supporting a defendant’s conviction, this
evidence was enough to permit a reasonable jury to
conclude that Liscano agreed to participate in the larger
conspiracy. See United States v. Munoz, 957 F.2d 171, 174
(5th Cir. 1992) (holding that a defendant’s warning
2
The First Circuit, in an opinion authored by then-Judge
Breyer, arrived at a similar conclusion in a case in which a
defendant conspired to distribute hashish and knew about
another conspiracy to distribute marijuana, but did nothing to
further the marijuana conspiracy. See United States v. Glenn,
828 F.2d 855, 859 (1st Cir. 1987).
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 11
about the police is evidence of his participation in a
conspiracy); United States v. Sobamowo, 892 F.2d 90, 94
(D.C. Cir. 1989) (same).
There also was no variance with respect to the proof
against Estremera because the government offered evi-
dence that he allowed Corral to use his garage to store
drugs. Given this evidence, a jury reasonably could infer
that Estremera agreed to help Corral sell drugs to all of
the other spokes. See United States v. Jenkins, 78 F.3d
1283, 1287 (8th Cir. 1996) (upholding a conspiracy con-
viction where the defendant allowed co-conspirators to
store drugs at his house and to use his car to transport
drugs).
By contrast, the evidence against Pena was insufficient
to prove that he participated in the hub and spoke conspir-
acy. The government contends that Pena knew the full
extent of the conspiracy because he asked Corral if anyone
in Corral’s car could sell him drugs, but a defendant’s
knowledge of a conspiracy is not enough to prove that the
defendant participated in it. See Townsend, 924 F.2d at
1397; Glenn, 828 F.2d at 859. The government also points
to the ledger recovered at Pena’s residence, but the gov-
ernment’s expert, Detective Wiencek, testified that he
could not say whether the ledger was created in further-
ance of the conspiracy, that there was no evidence that
the ledger recorded the conspiracy’s cocaine sales, and
that he could not tell when the ledger was created. In
short, the ledger alone was not enough to prove that Pena
furthered the larger conspiracy alleged in the indict-
ment, meaning there was a variance between the indict-
ment and the proof at trial.
3. Prejudice
A variance may prejudice a defendant at both trial and
sentencing. See Townsend, 924 F.3d at 1388-89. An
12 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
allegation of a single, multiple-person conspiracy allows
the government to try several defendants together and
can prejudice a defendant if the jury hears incriminat-
ing evidence (also known as “spillover” evidence) that is
admissible only against other defendants. See United
States v. Johnson-Dix, 54 F.3d 1295, 1308 (7th Cir. 1995).
In those circumstances, a jury might convict one defendant
merely because he associated with the others. Alleging a
single conspiracy also allows the government to make
more liberal use of the co-conspirator exception to the
hearsay rule. See Townsend, 924 F.3d at 1388 (citing
Federal Rule of Evidence 801(d)(2)(E)). Finally, a variance
can cause a defendant to be punished for acts committed
by individuals with whom he did not conspire. Id. at 1389;
Glenn, 828 F.2d at 860.
To determine whether a variance prejudiced a defendant
at trial, the Court considers several factors:
[the] (1) surprise to the defendant resulting from the
variance, (2) possibility of subsequent prosecution for
the same offense, (3) likelihood of jury confusion as
measured by the number of conspirators charged and
the number of separate conspiracies proven, and (4)
likelihood of jury confusion in light of the instruc-
tions given the jury limiting or excluding the use of
certain evidence not relating to the defendant.
Townsend, 924 F.2d at 1410-11. Pena contends that the
variance in this case prejudiced him because the jury
heard incriminating evidence that was relevant only
against Liscano and Estremera. However, in Townsend, we
rejected the same argument under a similar set of facts.
The Court held that the defendant was not prejudiced by
evidence relating to another defendant’s case because the
government offered recorded conversations in which the
defendant discussed the distribution of illegal drugs. We
said that the admission of prejudicial evidence was
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 13
harmless because “the jury had no need to look beyond
each defendant’s own words in order to convict.” Id. at
1411. Here, as in Townsend, the government offered
several recorded telephone conversations in which Pena
arranged cocaine deals with Corral. For this reason, the
evidence against him was strong enough to overcome
any prejudice that may have resulted from the admission
of evidence relevant only to other defendants.
The jury’s drug quantity finding gives us some pause
in light of the variance, because it may have based this
finding—as it pertained to Pena—on cocaine sales in which
Pena was not involved. However, the government offered
evidence that Pena’s conspiracy with Corral involved more
than five kilograms of cocaine, and Pena did not object
to the jury instructions at trial or on appeal. Therefore,
Pena has forfeited any argument that the drug quantity
finding prejudiced him.3
The main problem with the variance was that the
district court held Pena accountable for 150 kilograms of
cocaine, most of which was unrelated to his conspiracy
with Corral. Section 1B1.3 of the Federal Sentencing
Guidelines says that in the case of jointly undertaken
criminal activity, a defendant’s base offense level “shall be
determined on the basis of . . . all reasonably forseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” As discussed above, the
government’s evidence was insufficient to prove that Pena
furthered the larger conspiracy alleged in the indictment.
Pena may have known that the larger conspiracy existed,
but no reasonable fact finder could conclude that the
government’s evidence, in particular the ledger, proved
3
This finding increased Pena’s maximum sentence from twenty
years to life in prison. Compare 21 U.S.C. § 841(b)(1)(A)(ii), with
id. § 841(b)(1)(C).
14 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
that Pena promoted the larger endeavor’s success. Ac-
cordingly, the district court should have based Pena’s
offense level on the cocaine that he purchased from
Corral—the only jointly undertaken criminal activity
that the government proved.
4. Wiretap Evidence
Liscano, Estremera, and Pena next argue that the
district court committed plain error when it allowed a
witness to testify about the customary procedures used to
obtain a telephone wiretap. Under the plain error stan-
dard, “the defendant has the burden of proving an error
that is obvious and that affects substantial rights.” See
United States v. Trice, 484 F.3d 470, 473 (7th Cir. 2007).
If the defendant makes such a showing, then the Court
“may exercise its discretion to address the error, but only
if the error affects the fairness, integrity, or public reputa-
tion of judicial proceedings.” Id. At trial, FBI Agent
Michelle Sutphin testified that to obtain a wiretap, an
agent must fill out an affidavit and have it approved by
the Office of Enforcement Operations at the Department
of Justice and the chief judge of the district court. She
also testified that an agent must submit “ten-day re-
ports” to the chief judge to prove that a tapped telephone
is being used for criminal activity.
The three defendants maintain that Agent Sutphin’s
testimony unfairly bolstered the government’s conten-
tion that the defendants were dealing drugs. In support of
this argument, the defendants cite United States v.
Cunningham, 462 F.3d 708 (7th Cir. 2006). In that case, a
DEA agent testified about how the DEA obtains authoriza-
tion for a wiretap, explaining that an agent fills out a “very
extensive” affidavit outlining why there is probable cause
to monitor a phone. The agent then discussed how the
affidavit is reviewed by DEA headquarters, the local U.S.
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 15
Attorney’s office, a panel of attorneys at the Attorney
General’s office in Washington, and then a district court
judge. The defendant—whose phone had been tapped—
objected to the testimony, but the district court overruled
the objection. On appeal, this Court held that the testi-
mony was improper and reversed the defendant’s con-
viction. Id. at 713. We said that “[t]he government wit-
ness was improperly vouching for how good the evidence
was.” Id.This case is distinguishable from Cunningham. Whereas
in Cunningham the government offered testimony about
the procedures it used to obtain a wiretap on the defen-
dant’s phone, here, the government offered testimony
about the procedures it used to obtain a wiretap on Cor-
ral’s phone. Therefore, unlike Cunningham, where the
jury could have inferred from the improper evidence
that the defendant was engaged in illegal activity before
the wiretap, the primary inference that the jury could
have drawn from Agent Sutphin’s testimony was that
Corral was engaged in illegal activity before the wiretap.
That inference was not particularly damaging to the
defendants’ case because none of them denied that Corral
was a drug dealer. Indeed, given the overwhelming
evidence of Corral’s illegal activity, it would have been
pointless to argue otherwise. The error, if one occurred at
all, did not affect the defendants’ substantial rights.4
4
Liscano, Estremera, and Pena also make a number of argu-
ments to preserve them for appeal to the Supreme Court. They
argue that in a conspiracy case, each defendant’s drug quantity
must be proved to a jury beyond a reasonable doubt, but the
Supreme Court recently rejected an argument that only juries
are entitled to find facts at sentencing. Rita v. United States,
No. 06-5754, 2007 WL 1772146, *6, ___ S.Ct. ___ (June 21, 2007).
Liscano also argues that he cannot be sentenced to life in prison
(continued...)
16 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
B. Pena
1. Firearms Conviction
Pena claims that the government offered insufficient
evidence to convict him on the felon in possession count,
insisting that there was no evidence that he lived at 958
Oliver, the address of the residence where the gun was
found. He contends that his girlfriend lived at 958 Oliver
and that she had a firearms license. We reject this argu-
ment. Possession of a firearm may be actual or construc-
tive. See United States v. Stevens, 453 F.3d 963, 965 (7th
Cir. 2006). “[D]efendants are in constructive possession [of
a gun] if they have ‘the power and the intention at a given
time to exercise dominion and control over an object, either
directly or through others.’ ” United States v. Thomas, 321
F.3d 627, 636 (7th Cir. 2003) (quoting United States v.
Walls, 225 F.3d 858, 864 (7th Cir. 2000)). The government
can prove constructive possession of a gun by showing
that police recovered the gun at the defendant’s residence.
See United States v. Kitchen, 57 F.3d 516, 521 (7th Cir.
1995).
Though Pena contends otherwise, there was sufficient
evidence that he lived at the Oliver Street address; Corral
testified that Pena lived there, and FBI Agent Mary
Speilman testified that Pena told her that he lived there.
Additionally, no other male lived at 958 Oliver, and police
found the gun wrapped inside of a man’s jacket on a
4
(...continued)
based on judicially determined drug convictions, but the Su-
preme Court rejected this argument in Almendarez-Torres v.
United States, 523 U.S. 224, 239 (1998). Finally, Pena argues
that applying United States v. Booker, 543 U.S. 220 (2005) to
his sentence violates the ex post facto clause of the Constitu-
tion. We rejected that argument in United States v. Jamison, 416
F.3d 538, 539 (7th Cir. 2005).
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 17
shelf in a closet. Under Kitchen, this evidence was suffi-
cient to support the jury’s verdict.
2. Double Counting
Pena next contends that the district court erred by
punishing him twice for possessing a firearm. He main-
tains that the district court both increased his offense level
(from 38 to 40) on the conspiracy count and sentenced him
to 120 months on the felon in possession count because of
the same conduct. We review the district court’s interpre-
tation of the Sentencing Guidelines de novo. See United
States v. Shearer, 479 F.3d 478, 482 (7th Cir. 2007).
Section 2K2.1 of the Sentencing Guidelines sets out the
possible punishments for a defendant, like Pena, who
illegally possessed a firearm. Note 4 to § 2K2.4, then
states:
If a sentence under this guideline is imposed in con-
junction with a sentence for an underlying offense, do
not apply any specific offense characteristic for posses-
sion, brandishing, use, or discharge of an explosive or
firearm when determining the sentence for the under-
lying offense. A sentence under this guideline accounts
for any explosive or weapon enhancement for the
underlying offense of conviction, including any such
enhancement that would apply based on conduct for
which the defendant is accountable under 1.3 (Rele-
vant Conduct).
In other words, when a defendant is sentenced for the
possession of a firearm under § 2K1.1, the district court
cannot increase the defendant’s sentence on another
count for that same possession of a firearm. Despite
§ 2K2.4’s prohibition on double counting, that is exactly
what happened here. The district court increased Pena’s
offense level on the conspiracy count for possessing the
18 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
firearm found at 958 Oliver, and then it sentenced Pena to
a concurrent 120 month sentence for possessing the same
firearm. The district court could have done one or the
other, but not both.
The government says that no double counting occurred
because the conspiracy and felon in possession counts
were grouped together. We disagree. Though Pena’s
presentence report suggested grouping the two counts
together, the district court did not do so. When two counts
are grouped together under § 3D1.1, there is one total
offense level and, based on the resulting Guidelines range,
one sentence for both counts. In this case, the district
court handed out two separate sentences—life in prison
on the conspiracy count and 120 months on the felon in
possession count—and both sentences punished the same
conduct, possession of a firearm by a felon. On remand, the
district court may either increase Pena’s offense level
by two on the conspiracy count or sentence him separately
on the firearms count, but it may not do both.
C. Estremera
1. 404(b) Evidence
Next, Estremera contends that the district court erred by
allowing the government to admit “prior bad acts” evi-
dence, which is ordinarily inadmissible under Federal Rule
of Evidence 404(b). The Court reviews the district court’s
admission of evidence for an abuse of discretion. See
United States v. Senffner, 280 F.3d 755, 762 (7th Cir.
2002).
At trial, Estremera objected to the admission of a
telephone conversation which suggested that Estremera
bought drugs from someone outside the conspiracy.
Estremera told Corral that he was going to “holler at
somebody” but that he would check with Corral later to see
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 19
if Corral had obtained any drugs. Corral then provided
the following testimony to clarify the conversation:
Q: What was your understanding [about] what Mr.
Estremera meant . . . when he said . . . that he was
just checking up and he was on his way to holler at
somebody, ‘but hopefully you’ll be straight, right?’
A: Meaning he was checking with me first to see if
I had any cocaine before he went and hollered at any
of his other suppliers.
Q: And what . . . was your understanding when he
said: ‘I say I’m gonna probably go holler at somebody,
then?’
A: Meaning that he was going to go holler at the other
suppliers he has, that he can get cocaine from.
Q: And what did you mean when you responded: ‘You
know, just to hold you off?’
A: Meaning to go ahead and get cocaine off of someone
else till I’m supplied.
Tr. Trans. at 765-66.
A statement is admissible under Rule 404(b) if it is made
in furtherance of a conspiracy.5 See United States v.
Sophie, 900 F.2d 1064, 1074 (7th Cir. 1990). Statements
made to reassure a conspirator’s loyalty to the conspiracy
or to inform co-conspirators of the progress of the conspir-
5
Rule 404(b), in relevant part, provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident . . . .
20 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
acy are made in furtherance of the conspiracy. See United
States v. Flores, 63 F.3d 1342, 1377 (5th Cir. 1995); United
States v. Stephenson, 53 F.3d 836, 845 (7th Cir. 1995). In
this case, the district court reasonably concluded that
the conversation between Estremera and Corral was in
furtherance of the conspiracy because Estremera asked
Corral’s permission to buy drugs from someone else,
demonstrating Estremera’s loyalty to Corral as his pri-
mary drug supplier. Therefore, it did not abuse its discre-
tion by admitting the evidence.
2. Reasonableness
Estremera next contends that his life sentence was
unreasonable under the sentencing factors outlined in 18
U.S.C. § 3553(a). He maintains that the sentence was
greater than necessary to comply with the goals of
§ 3553(a), that the district court did not evaluate suffi-
ciently the § 3553(a) factors, and that the sentence was
unfair in light of Corral’s much lighter, fifteen-year
sentence.
The Supreme Court recently approved this circuit’s
practice of presuming that a district court’s Guidelines
sentence is reasonable. Rita v. United States, No. 06-5754,
2007 WL 1772146, *6, ___ S.Ct. ___ (June 21, 2007). The
Court said that an appellate court’s non-binding presump-
tion of reasonableness appropriately expresses the fact
that a sentence is usually reasonable where a sentencing
judge and the Sentencing Commission have reached the
same conclusion about a proper sentence. Id. The Court
also observed that a Guidelines sentence “likely reflects
the § 3553(a) factors (including its ‘not greater than
necessary’ requirement).” Id. at *11. Rita left open the
possibility, however, that the particular facts of a case—
maybe a defendant’s unusual history and characteristics
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 21
or the remarkable nature of an offense—might require a
sentence outside the Guidelines.
The Court also discussed the sufficiency of a sentencing
judge’s stated reasons for issuing a particular sentence.
The defendant in Rita had asked for a sentence below the
applicable Guidelines range because, as a former govern-
ment criminal justice employee, he maintained that he
was susceptible to violence at the hands of other inmates.
He also argued that his poor physical health and former
military service merited a more lenient sentence.
The government responded that the defendant’s crime—
perjury—had interfered with one of its investigations
and that a former criminal justice employee should have
known better.
After both sides presented their arguments, the sentenc-
ing judge said that the defendant’s Guidelines range
provided an appropriate sentence and that the public
needed to be protected from the defendant’s crime. Though
the judge did not specifically mention the defendant’s
reasons for a lower sentence, the Supreme Court held that
the statement was legally sufficient. It said that the
district court heard the defendant’s reasons for leniency
and “simply found these circumstances insufficient to
warrant a sentence lower than the Guidelines range.” Id.
at *13. It further explained that the judge could have
stated explicitly that he had heard and considered the
evidence and argument, that the Sentencing Guidelines
reflected a proper sentence, and that the defendant’s
unique circumstances did not warrant a below-Guidelines
sentence. Nevertheless, the Court said that the context of
the judge’s statements made clear the reasoning that
supported its conclusion and allowed the Court to review
that reasoning on appeal. Id.
Finally, the Court concluded that the defendant’s
sentence was reasonable, noting that the defendant offered
22 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
no evidence that he feared retaliation more than any other
former law enforcement officer and did not argue that
military veterans ordinarily should receive lower sen-
tences. Id. at *14. In short, the Court found that the
defendant’s circumstances were not so remarkable to
require a sentence outside the applicable Guidelines range.
With Rita’s framework in mind, it is clear that
Estremera’s Guidelines sentence was both reasonable
and supported by sufficient reasons. Estremera’s circum-
stances are not so different from other defendants con-
victed of distributing large amounts of drugs that a
sentence outside the Guidelines was necessary. The
district court reasonably could have concluded that
Estremera’s criminal record suggested an individual prone
to recidivism and that his involvement in GED and Bible
study classes was not significant enough to merit a lower
sentence. Estremera’s other argument—that his sentence
was too severe in light of Corral’s much lighter sentence—
is one we repeatedly have rejected. See, e.g., United States
v. Duncan, 479 F.3d 924, 929 (7th Cir. 2007).
The district court also supported the sentence with
sufficient reasons. It recited each of the § 3553(a) factors
and mentioned a few facts that weighed heavily in its
decision, including the ramifications that drug selling
has on our communities, Estremera’s lengthy criminal
history, and the seriousness of his offense. This explana-
tion was substantially greater than the one approved in
Rita, where the sentencing judge did not articulate any of
the § 3553(a) factors and did not mention any facts that
were important to his decision. Though Estremera’s life
sentence was stiff, the case was, like Rita, “conceptually
simple” because Estremera did not make any compelling
arguments for a sentence outside the Guidelines. As such,
the district court’s stated reasons have allowed us to
engage in a meaningful review of Estremera’s sentence.
Nos. 03-3388, 04-1469, 05-4798 & 05-4799 23
D. Bustamante
Bustamante argues that the district court should have
granted his motion to suppress because police officers
obtained consent to search his vehicle after they read him
his Miranda rights and after he invoked his right to
counsel. The Court previously has rejected this argument.
Miranda and its progeny hold that “before police can
initiate custodial interrogation of a defendant, they must
advise the defendant of certain rights.” See United States
v. Shlater, 85 F.3d 1251, 1255-56 (7th Cir. 1996). Though
all interrogation must cease once a defendant in custody
has invoked his right to counsel, a request to search a
vehicle or home is not likely to elicit an incriminating
response and is therefore not interrogation. See United
States v. McClellan, 165 F.3d 535, 544 (7th Cir. 1999);
Shlater, 85 F.3d at 1256; see also United States v. Stevens,
No. 05-41369, 2007 WL 1428594, n.3, ___ F.3d ___ (5th Cir.
2007) (collecting cases); Wayne R. LaFave, Jerold H.
Israel, & Nancy J. King, Criminal Procedure § 3.10(b) (2d
ed. 2007) (stating that a statement granting “consent to
a search . . . is neither testimonial nor communicative
in the Fifth Amendment sense.”) (internal quotation
omitted). Accordingly, Miranda does not protect a defen-
dant who is in custody from a police officer’s request to
search his vehicle, and the district court correctly denied
Bustamante’s motion to suppress.6
6
Bustamante contends that the Supreme Court’s decision in
Dickerson v. United States, 530 U.S. 428 (2000), implicitly
overruled Shlater and McClellan, but that case did not address
the meaning of “interrogation” for purposes of the Fifth Amend-
ment. It simply held that Miranda warnings are constitu-
tionally required and that Congress cannot overrule that
requirement by statute. Id. at 444
24 Nos. 03-3388, 04-1469, 05-4798 & 05-4799
III. Conclusion
The Court AFFIRMS Liscano’s, Estremera’s, and Pena’s
convictions and Liscano’s and Estremera’s sentences. The
Court also AFFIRMS the district court’s ruling on
Bustamante’s motion to suppress. The Court VACATES
Pena’s sentence and REMANDS for resentencing consistent
with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-16-07