United States v. Soto-Piedra, Rodrigo ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1399 & 07-1778
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RODRIGO SOTO-PIEDRA and MIGUEL HERNANDEZ,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
Nos. 05 CR 156-009 & 05 CR 156-001—Larry J. McKinney, Judge.
____________
ARGUED MARCH 4, 2008—DECIDED MAY 5, 2008
____________
Before CUDAHY, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. Rodrigo Soto-Piedra and Miguel
Hernandez pleaded guilty to conspiracy to distribute
cocaine. See 21 U.S.C. §§ 846, 841(a)(1). Neither stipu-
lated to a precise drug quantity when pleading guilty,
and each now challenges his sentence. Soto contends that
the district court exaggerated the drug quantity by re-
lying almost exclusively on an informant’s estimate that
the probation officer repeated in the presentence report.
Hernandez maintains that the court overstated his base
offense level on the mistaken assumption that he was
2 Nos. 07-1399 & 07-1778
involved with crack rather than powder cocaine. We
reject Soto’s contention but agree with Hernandez that
his case must be remanded.
I. HISTORY
The underlying facts are brief. In March 2005 an infor-
mant, Susana Ramirez, told authorities that between
April and December 2004 she purchased 5 to 7 kilograms
of powder cocaine each week from Soto and his girl-
friend at a price of about $20,000 per kilogram. The Drug
Enforcement Administration then set up a controlled
buy in which Ramirez asked to purchase one-half kilogram
of cocaine from Soto and his girlfriend. The girlfriend
obtained the cocaine from Vicente Camarena-Salazar1 and
delivered it to Ramirez. Where Camarena obtained the
cocaine is unknown. After this transaction authorities
conducted surveillance on telephones used by Camarena
and Soto.
Two months later, in May 2005, Soto called Camarena
to inquire about buying one kilogram of cocaine. There
was no discussion about crack. Camarena replied that
he would check with his supplier. He contacted
Hernandez, who volunteered that he could supply co-
caine that would give “almost everything back in return,”
roughly “ninety-five percent,” if Camarena’s customer
1
Camarena also pleaded guilty to conspiracy to distribute
cocaine and subsequently appealed, but his appointed lawyer
moved to withdraw under Anders v. California, 386 U.S. 738(1967). We have issued a separate order granting that motion
and dismissing Camarena’s appeal. See United States v. Camarena-
Salazar, No. 07-1012 (7th Cir. May 5, 2008) (unpublished order).
Nos. 07-1399 & 07-1778 3
wanted the cocaine “for cooking.” (A DEA agent testified
at Soto’s change-of-plea hearing that “cooking” means
converting powder cocaine into crack and that 95% refers
to the relative weight of the crack after the “cooking”
process.) Camarena relayed this information to Soto,
who did not say what he planned to do with the powder
cocaine. After that Camarena continued to negotiate
with Hernandez, though there was no more discussion
about “cooking” or “return.” At first Hernandez was
reluctant to front the drugs as Camarena proposed, but
Camarena assured him that Soto was reliable and in the
past year had gotten “out up to five a week.” But then
the discussions ended with Hernandez telling Camarena
that the deal was not “for sure.” Hernandez did not think
he could obtain any cocaine, and if he could it would
be expensive. As far as this record shows, the deal
never went through.
In late May, Camarena contacted Hernandez again on
behalf of a different customer. Hernandez again boasted
that he could supply powder cocaine that is “good for
the kitchen” and “gives almost everything back” when
converted to crack. This time Camarena responded that
his customer indeed wanted something that “works well
for the barbeque.” Hernandez, however, had none of
this high-quality cocaine in stock. Camarena was not
interested in buying lesser-quality cocaine, and the con-
versation ended with Hernandez promising to call when
some of higher quality became available.
Another week passed before Hernandez called Camarena
on June 3, 2005, to ask how many “karats” he wanted. (The
DEA agent testified that “karats” meant kilograms of
powder cocaine.) Camarena told Hernandez that one
customer wanted 10 kilograms and another wanted 5.
4 Nos. 07-1399 & 07-1778
During this conversation, however, nothing was said
about “cooking” or return or percentage or anything else
indicating that Hernandez was offering to supply co-
caine suitable for converting into crack, and the govern-
ment directs us to no evidence suggesting that either of
these two customers was the one who a week earlier
wanted cocaine “for the barbeque.” Hernandez ended
the conversation by confirming that he could tell his
supplier that it would be, “fourteen, fifteen karats.” A few
days later, DEA agents followed Hernandez as he drove
from Lafayette, Indiana, to Chicago. The agents stopped
Hernandez after he left Chicago and seized 1.996 kilo-
grams of cocaine of unknown quality. The record does
not disclose when Soto was arrested.
II. ANALYSIS
We review a finding of drug quantity for clear error.
United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007). The
government must prove drug quantity by a prepon-
derance of the evidence, United States v. McGowan, 478
F.3d 800, 802 (7th Cir. 2007); United States v. White, 360
F.3d 718, 720 (7th Cir. 2004), and generally a district
court may rely upon uncontradicted factual information
in a the presentence report when assessing whether the
government has satisfied that burden, see United States v.
Thornton, 463 F.3d 693, 700-01 (7th Cir. 2006); United States
v. Salinas, 365 F.3d 582, 587-88 (7th Cir. 2004); see also
FED. R. CRIM. P. 32(i)(3)(A) (providing that sentencing
court “may accept any undisputed portion of the presen-
tence report as a finding of fact”).
Nos. 07-1399 & 07-1778 5
A. Soto-Piedra
Prior to Soto’s sentencing the probation officer recom-
mended that he be held accountable for 170 kilograms
of cocaine based on Ramirez’s estimate that she ob-
tained 5 to 7 kilograms from him each week from April to
December 2004 at a price of $20,000 per kilogram. The
probation officer arrived at 170 kilograms by assuming
that the April-to-December period spanned 34 weeks and
that Ramirez bought only 5 kilograms per week. Soto
objected that the probation officer’s calculation was not
meaningfully corroborated. He contended that Ramirez’s
statement should be discounted because her role as an
informant gave her incentive to embellish, and he also
suggested through counsel that his own modest lifestyle
refuted Ramirez’s assertion that he was selling roughly
half a million dollars of cocaine per month. But Soto did
not deny that he sold cocaine to Ramirez over an ex-
tended period of time, nor did he offer any evidence of his
own to contradict her estimate of their extended dealings.
The district court selected a base offense level of 38, see
U.S.S.G. § 2D1.1(c)(1), after concluding that Soto distrib-
uted at least 150 kilograms of cocaine. The court relied not
just on Ramirez’s estimate, but also on Camarena’s re-
corded representation to Hernandez that Soto had been
buying from him up to 5 kilograms per week during
some part of the previous year. After crediting Soto for
acceptance of responsibility, see U.S.S.G. § 3E1.1(a), the
court arrived at a total offense level of 36, which yielded
a sentencing range of 210 to 262 months. The court sen-
tenced Soto to 210 months’ imprisonment.
Soto challenges the drug quantity, but he introduced
no evidence calling into question the accuracy of the
presentence report. When a defendant fails to do so, a
6 Nos. 07-1399 & 07-1778
district court may rely entirely on the factual account in
the report. Artley, 489 F.3d at 821; United States v. Willis,
300 F.3d 803, 807 (7th Cir. 2002); United States v. Taylor, 72
F.3d 533, 547 (7th Cir. 1995). The district court therefore
did not commit clear error by relying on the probation
officer’s estimated cocaine quantity, and Soto’s sen-
tence must be affirmed.
Moreover, even if the sentencing court had been required
to look beyond the uncontroverted presentence report,
there is evidence to support the 150-kilogram finding.
Camarena said during a wiretapped conversation that
in the “last year” Soto would get “out up to five a week.”
Camarena certainly would know how much cocaine he
was supplying to Soto, and his recorded statement sup-
ports Ramirez’s assertion and the district court’s con-
clusion that Soto was distributing 5 kilograms per week.
And the district court could have interpreted “last year” to
mean that Camarena worked with Soto for at least as
long as Soto was distributing cocaine to Ramirez. For us
to find clear error, we would have to conclude that the
district court did not arrive at a permissible view of the
evidence. Anderson v. City of Bessemer, 470 U.S. 564, 574
(1985); United States v. Marty, 450 F.3d 687, 690 (7th Cir.
2006). And that is not the case here.
B. Hernandez
Prior to Hernandez’s sentencing the probation officer
concluded that he was “responsible for between 15.996
to 16.996 kilograms of cocaine, of which the defendant
had knowledge that 14 to 15 kilograms would be con-
verted to crack cocaine at a 95% rate.” This conclusion rests
on the 1.996 kilograms of powder cocaine Hernandez
Nos. 07-1399 & 07-1778 7
had with him when he was arrested coupled with the
word from unidentified “law enforcement officials” that
Hernandez had agreed to sell Camarena 14 to 15 kilograms
knowing that the powder would be converted into crack.
After subtracting two levels for acceptance of responsibil-
ity, see U.S.S.G. § 3E1.1(a), the probation officer calcu-
lated a total offense level of 36 and imprisonment range
of 188 to 235 months.
Hernandez objected to the probation officer’s assignment
of a base offense level on the assumption that he was
involved with crack. The government also objected to the
presentence report because the probation officer had not
included a two-level upward adjustment, see U.S.S.G.
§ 2D1.1(b)(1), for the gun Hernandez was carrying when
he was arrested. The district court agreed with the gov-
ernment, and increased Hernandez’s total offense level
by two levels, which resulted in a guidelines range of
235 to 293 months’ imprisonment. The court overruled
Hernandez’s objection to the probation officer’s drug
calculation, adopted that conclusion as its own, and
sentenced Hernandez to 250 months.
Hernandez’s sentence must be vacated because there
is a dearth of evidence supporting the district court’s
conclusion that he was responsible for 14 to 15 kilograms
of crack. The sentencing guidelines provide that relevant
conduct, in the case of a jointly undertaken criminal
activity, shall be determined on the basis of “all reason-
ably foreseeable acts and omissions of others in further-
ance of the jointly undertaken criminal activity.” U.S.S.G.
§ 1B1.3(a)(1)(B). Jointly undertaken criminal activity is
defined as “a criminal plan, scheme, endeavor, or enter-
prise undertaken by the defendant in concert with
others.” Id. As far as this record shows (and the govern-
8 Nos. 07-1399 & 07-1778
ment concedes), Hernandez never sold crack to anyone,
and so before he could be assigned a base offense level
premised on an estimated amount of crack, the govern-
ment needed to prove that Hernandez reached an agree-
ment with Camarena to sell powder cocaine intending
that it be converted into crack. See United States v. Booker,
248 F.3d 683, 688 (7th Cir. 2001); United States v. Dorsey,
209 F.3d 965, 967 (7th Cir. 2000). That did not happen
here. As we noted earlier, a district court may rely upon
unconstested factual details in a presentence report, but
the say-so of some undisclosed “law enforcement offi-
cial” that Hernandez understood that the powder he
discussed on June 3 would be converted into crack is not
a fact, but merely a conclusion. And that is all the
presentence report provided in linking Hernandez to a
substantial quantity of crack.
The government suggests that it was not required to
demonstrate the existence of Hernandez’s jointly under-
taken criminal activity because he pleaded guilty to
conspiracy. This proposition cannot be supported. In
1992 U.S.S.G. § 1B1.3 was amended specifically to disa-
vow it. U.S.S.G. app. C, vol. I, amend. 439; United States
v. Ortiz, 362 F.3d 1274, 1275, 1276-77 (9th Cir. 2004);
United States v. Perulena, 146 F.3d 1332, 1337 n.11 (11th
Cir. 1998); United States v. Strange, 102 F.3d 356, 360 n.6
(8th Cir. 1996); United States v. McDuffy, 90 F.3d 233, 235-
36 (7th Cir. 1996). Conspiracy liability, as defined in
Pinkerton v. United States, 328 U.S. 640, 646-48 (1946), is
generally much broader than jointly undertaken crim-
inal activity under § 1B1.3. “Anyone who agrees to join a
criminal undertaking is a conspirator,” United States v.
Almanza, 225 F.3d 845, 846 (7th Cir. 2000), but Hernandez
is not trying to evade that label or undermine his guilty
Nos. 07-1399 & 07-1778 9
plea. The scope of relevant conduct is “not necessarily the
same as the scope of the entire conspiracy.” U.S.S.G.
§ 1B1.3, cmt. n.2. “[I]n order to be held accountable for
the conduct of others, that conduct must have been both
in furtherance of the jointly undertaken criminal activity
and reasonably foreseeable in connection with that crim-
inal activity.” United States v. Edwards, 115 F.3d 1322, 1327
(7th Cir. 1997); accord United States v. Laboy, 351 F.3d 578,
583 (1st Cir. 2003); United States v. Melton, 131 F.3d 1400,
1405 (10th Cir. 1997); United States v. Otis, 107 F.3d 487,
491 (7th Cir. 1997); McDuffy, 90 F.3d at 235. Foreseeability
is a limitation on liability for conduct of others in fur-
therance of a jointly undertaken activity but is irrelevant
when there is no jointly undertaken activity. See McDuffy,
90 F.3d at 236; United States v. Dean, 59 F.3d 1479, 1495
(5th Cir. 1995); United States v. Evbuomwan, 992 F.2d 70, 74
(5th Cir. 1993). Hernandez’s guilty plea establishes only
that he conspired to distribute powder cocaine, and we
see nothing in the plea agreement or in his admissions
during the plea colloquy evidencing that he specifically
undertook to possess and distribute any amount of
crack, much less 14 to 15 kilograms.
Mere talk about a possible future undertaking, without
more, is not an undertaking itself. See United States v.
Boniilla-Comacho, 121 F.3d 287, 291-92 (7th Cir. 1997); United
States v. Garcia, 69 F.3d 810, 820 (7th Cir. 1995); United
States v. Jewel, 947 F.2d 224, 234 (7th Cir. 1991); United
States v. Ruiz, 932 F.2d 1174, 1184 (7th Cir. 1991) (noting
negotiated amounts may be considered at sentencing
when the defendant has “actually arranged the details of
a drug sale (e.g., price, quantity, location)”). Yet the
government’s argument rests entirely on one conver-
sation in which Hernandez asked Camarena if he could
10 Nos. 07-1399 & 07-1778
bank on Camarena taking 14 to 15 kilograms of powder
cocaine that Hernandez hoped to get from a supplier.
This was the beginning of a negotiation—a prelude to a
possible agreement—but nothing more. And although
the court may look to “any explicit agreement or implicit
agreement fairly inferred,” U.S.S.G. § 1B1.3 cmt. n.2,
the import is that there must be an agreement. But here
there was no agreement for Hernandez to supply or
Camarena to buy cocaine of any type. At best the con-
versation between the two men amounted to Camarena
expressing interest in cocaine that Hernandez might or
might not be able to get from a particular supplier. And
there is nothing in the record to suggest that Hernandez
was capable of doing so. At this point, after all, none
of the prior conversations between Hernandez and
Camarena had resulted in a consummated drug deal. Just
as in Ruiz, there is no evidence that Hernandez had
access to 14 or 15 kilograms of powder cocaine. See Ruiz,
932 F.2d at 1184. Because this conversation does not
evince any jointly undertaken criminal activity, it could
not have been a basis for calculating Hernandez’s guide-
lines range. See United States v. Mellen, 393 F.3d 175, 182-
86 (D.C. Cir. 2004); United States v. Rivera-Rodríguez,
318 F.3d 268, 274 (1st Cir. 2003); United States v. White-
cotton, 142 F.3d 1194, 1199 (9th Cir. 1998); see also United
States v. Willis, 476 F.3d 1121, 1129-31 (10th Cir. 2007)
(remanding for factual findings as to scope of jointly
undertaken criminal activity); United States v. Mulder,
273 F.3d 91, 118-19 (2d Cir. 2001) (same).
Furthermore, even if we could conclude from this
conversation that Hernandez and Camarena had settled
upon a jointly undertaken criminal activity, we still
would vacate Hernandez’s sentence because the gov-
Nos. 07-1399 & 07-1778 11
ernment failed to establish that Hernandez contem-
plated that the 14 to 15 kilograms of powder cocaine he
proposed to supply would be converted into crack by
Camarena’s customer. Other conversations demonstrate
that Hernandez sold different grades of powder cocaine,
and that he described the product that was good for
making crack in terms of its high quality and the percent-
age return the ultimate buyer would get from “cooking” it.
But nothing was said about quality or yield or “cooking”
when Hernandez probed Camarena’s interest in ob-
taining 14 to 15 kilograms, and the government does not
say what it sees in the one recorded conversation that
might suggest the men were talking about high-quality
powder that would be cooked into crack. Similarly,
nothing was said about what Camarena’s customers
would do with the cocaine if Hernandez could get it.
Actions of coconspirators that a particular defendant
does not assist or agree to promote are generally not
within the scope of that defendant’s jointly undertaken
activity. See U.S.S.G. § 1B1.3 cmt. n.2 (illustration (c)(1));
United States v. Bustamante, 493 F.3d 879, 887-88 (7th Cir.
2007); Melton, 131 F.3d at 1405; United States v. Studley,
47 F.3d 569, 576 (2d Cir. 1995). Hernandez contem-
plated the possibility of supplying Camarena with an
unknown grade of powder cocaine, to be passed along by
Camarena to an unknown customer with an unknown
intention, and that is all that is shown by this record. The
government put forth no evidence suggesting that convert-
ing the powder cocaine to crack was within the scope of
Hernandez’s contemplated undertaking. To conclude
otherwise would be simply speculation. Hernandez is
entitled to be resentenced.
12 Nos. 07-1399 & 07-1778
III. CONCLUSION
Accordingly, Soto’s sentence is AFFIRMED; we VACATE
Hernandez’s sentence and REMAND for resentencing.
USCA-02-C-0072—5-5-08