United States v. Ramon Perez ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2375
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R AMON P EREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 05 CR 189—Philip P. Simon, Judge.
A RGUED JANUARY 20, 2009—D ECIDED S EPTEMBER 9, 2009
Before E ASTERBROOK, Chief Judge, SYKES, Circuit Judge,
and K ENDALL, District Judge. Œ
K ENDALL, District Judge. Ramon Perez was indicted
for knowingly possessing with intent to distribute in
excess of 500 grams of cocaine based on a traffic stop
during which the officers recovered a single brick of
Œ
Hon. Virginia M. Kendall, District Judge for the Northern
District of Illinois, is sitting by designation.
2 No. 07-2375
cocaine weighing 993.9 grams. Perez pleaded guilty to
the charged offense and the district court judge sen-
tenced him to 135 months’ incarceration based on the
cocaine found during the traffic stop and other drugs
located at his home that were recovered later that day.
Perez claims that the district court judge erred when he
increased his sentence for the drugs retrieved from the
residence. Because we find that the district court judge
correctly included the other drugs as relevant conduct,
we affirm.
I. Background 1
On November 7, 2005, a Lake County, Indiana police
officer stopped Perez for speeding on Interstate 65 (“I-65”).
When the officer approached the vehicle he observed
Perez in the driver’s seat seated next to two small chil-
dren. The officer gave Perez a warning ticket and told
him that he was free to leave. As Perez began walking
to his car, the officer asked him if he had any illegal
weapons or drugs in the vehicle. Perez denied having any
drugs or weapons and agreed to let the officer search the
car. A second officer found a brick of cocaine hidden
1
These facts are taken from Perez’s guilty plea transcript, his
sentencing transcript and his presentence investigation report
(“PSR”). In his objections to the PSR and at his sentencing
hearing, Perez never contested the facts as set forth in the
PSR. Based on the absence of any objection to the facts con-
tained in the PSR, the district court adopted them as
“materially accurate.”
No. 07-2375 3
inside the front passenger’s airbag compartment with a net
weight of 993.9 grams. The brick of cocaine had been
pressed with a device that left a silhouette of a lizard on
it. After finding the brick of cocaine, the officers
arrested Perez.
The Lake County officers then notified the Illinois State
Police Narcotics Unit of the arrest. The ISP officers sub-
sequently went to Perez’s home in Cicero, Illinois and
received consent to search the home from Perez’s wife,
Ana Perez. Once inside, the officers retrieved a variety
of narcotics including 425.1 net grams of heroin, 985.9
net grams of powder cocaine, 930.0 net grams of
marijuana, and 227.7 net grams of methamphetamine.
The drugs were mostly found in an east storage room
but some were found in the garage. Also in the garage,
the officers retrieved two large hydraulic presses
suitable for packaging kilograms of cocaine. One of the
presses was equipped with a wooden plate with the
silhouette of a lizard on it—the exact lizard design
pressed onto the brick of cocaine retrieved from Perez’s
vehicle earlier that day.
In Perez’s bedroom, the officers recovered a Smith and
Wesson .38 caliber revolver hidden between two mat-
tresses. In the same bedroom, they also found a box of
.38 caliber ammunition, three boxes of 9mm ammuni-
tion, a box of .25 caliber ammunition and documents
indicating that Perez and his wife owned the home.
Ana Perez was subsequently charged in Illinois state
court with possession of the narcotics found in the Perez
home. At some point during the prosecution, the state
court judge suppressed the drugs seized from the
4 No. 07-2375
residence finding that the drugs were seized in violation
of the Fourth Amendment. The record, however, does not
reflect why the judge found the violation.
On November 16, 2005, a grand jury returned a one-
count indictment against Perez charging him with posses-
sion with intent to distribute in excess of 500 grams of
cocaine in violation of 21 U.S.C. § 841(a). The quantity of
drugs charged in the indictment reflected the drugs
that were seized from Perez’s vehicle during the traffic
stop and did not include the drugs that were seized at
Perez’s home in Cicero, Illinois. Perez filed a motion to
suppress the cocaine found in his car and after con-
ducting an evidentiary hearing, the district court denied
Perez’s motion. On December 11, 2006, Perez pleaded
guilty to the one-count indictment. The Probation De-
partment prepared a presentence investigation report
(“PSR”) and calculated Perez’s base offense level as 34,
based on the quantity of drugs seized from Perez’s car
and his home. The probation officer also added two
levels pursuant to § 2D1.1(b)(1) because a firearm was
located where a large amount of drugs were recovered.
Perez filed objections to the PSR and a motion for
downward departure. Perez objected to the quantity of
drugs attributed to him arguing that the drugs seized
from his home should not be counted as relevant
conduct because they were not charged in the indict-
ment, that he did not admit to possessing them during his
plea colloquy, and that they were seized illegally. Perez
also objected to the two-level firearm enhancement
arguing that the gun was not connected to the drug
offense.
No. 07-2375 5
After receiving exhibits and hearing argument, the
district court applied the two-level firearm enhance-
ment and calculated the amount of drugs for the
charged and relevant conduct to be 5,857.59 kilograms of
marijuana (converted) based on both the brick of cocaine
recovered during the traffic stop and all of the drugs
retrieved from the residence. Based on these findings,
the district court calculated Perez’s total offense level at
33, resulting in a guideline range of 135 to 168 months
imprisonment. Perez also made a request for a sentence
below the applicable guideline range based on his lack
of criminal history, his work history, and the allegedly
uncomfortable conditions of confinement in the county
jail where he was held. The district court addressed
and rejected each of the grounds stated in support of
Perez’s request for a non-guideline sentence and sen-
tenced him to 135 months’ imprisonment.
II. Discussion
A. Relevant Conduct
Perez argues on appeal that he did not admit to the
drugs quantities found in his home during his plea collo-
quy. At the hearing, however, the government stated:
And with respect to 404-B evidence, the Government
would then establish that later in the day, officers
from the Illinois State Police did a knock and talk at
the defendant’s home in Cicero, and received consent
to search the home from the defendant’s wife where
they found approximately 550 thousand dollars
6 No. 07-2375
worth of six different illegal narcotics, and two large
hydraulic presses, one of which had a wooden press
in the shape of the same lizard that was found on
the brick of powder cocaine in the defendant’s vehicle.
The district court judge then asked Perez if he had heard
what the government said and if he agreed with the
government’s version of the events. Perez responded:
“Yes.” Perez was informed that the government would
seek to hold him responsible for the entire amount of
drugs and he did not challenge the relevant conduct at
the time of his change of plea.
In spite of the position he took at his plea hearing, Perez
challenges the district court’s inclusion of the drugs
from the residence as relevant conduct. We review the
district court’s determination of drug quantities attribut-
able to a defendant at sentencing for clear error. See
United States v. Jones, 209 F.3d 991, 994-95 (7th Cir. 2000).
The district judge’s finding that a defendant’s relevant
conduct includes uncharged drug quantities is a factual
determination entitled to our deference and will not be
reversed unless we have a “definite and firm convic-
tion that a mistake has been committed.” United States
v. Olivas-Ramirez, 487 F.3d 512, 516 (7th Cir. 2007) (internal
citation omitted).
As an initial matter, Perez argues that the drugs
seized from his home should not have been included to
increase his sentence because they were seized illegally.
Generally, the exclusionary rule is inapplicable at the
criminal sentencing phase. See United States v. Brimah, 214
F.3d 854, 858-59 (7th Cir. 2000) (joining nine other
No. 07-2375 7
circuits in holding that “in most circumstances, the
exclusionary rule does not bar the introduction of the
fruits of illegal searches and seizures during sen-
tencing proceedings.”). There is a possibility that the
exclusionary rule might apply at sentencing where the
police deliberately violated the defendant’s constitu-
tional rights for the purpose of acquiring evidence to
increase a defendant’s prospective sentence. See Brimah,
214 F.3d at 858 n. 4.; but see United States v. Jewel, 947 F.2d
224, 238 (7th Cir. 1991) (Easterbrook, J., concurring)
(commenting on the near impossibility of demonstrating
that officers illegally obtained evidence specifically for
use in sentencing, and going on to observe that “[i]t
is awfully hard to see why motive should matter on
either prudential or doctrinal grounds”).
The record is devoid of any evidence that the police
deliberately violated Perez’s Fourth Amendment rights
in seizing the drugs from his home with the intent to
gather evidence to increase his sentence. Perez has made
no attempt to make such a showing either before the
district court or on appeal. The district court’s refusal to
apply the exclusionary rule to evidence that was sup-
pressed in another court against a different defendant
was not clear error based on the lack of any evidence
to support Perez’ bare assertion of misconduct.
Perez next alleges that the drugs seized from his home
should not be included as relevant conduct because they
were not charged in the indictment and he did not
admit to them during his plea hearing. Under § 1B1.3(a)(2)
of the Sentencing Guidelines, all acts and omissions
8 No. 07-2375
that were “part of the same course of conduct or common
scheme or plan as the offense of conviction” are be con-
sidered “relevant conduct” for sentencing purposes and
such conduct is factored into the Guideline sentencing
calculations as if the defendant had been convicted of
that conduct. See United States v. White, 519 F.3d 342, 347
(7th Cir. 2008); United States v. Wilson, 502 F.3d 718, 721-22
(7th Cir. 2007) (uncharged drug quantities can be used
to enhance a defendant’s sentence).
Recognizing that uncharged drug quantities can add
months or years to a defendant’s advisory guidelines
range, the evidence relied upon by the district court at
sentencing to increase a defendant’s sentence must bear
a “sufficient indicia of reliability.” Id.; see also United
States v. Ortiz, 431 F.3d 1035, 1041 (7th Cir. 2005) (vacating
sentence because relevant drug conduct not sufficiently
related). In assessing whether there is a strong rela-
tionship between the unconvicted conduct and the con-
victed offense, the government must demonstrate that
the conduct is connected by at least one common factor
such as “common victims, common accomplices, common
purpose, or similar modus operandi.” United States v.
Bacallao, 149 F.3d 717, 719 (7th Cir. 1998) (quoting
U.S.S.G. § 1B1.3(a)(2), cmt. n. 9(A)).
Because the clear error standard also governs this
inquiry, we begin with the district court’s specific
findings regarding whether the drugs seized from
Perez’s home were part of the same course of conduct or
common scheme as the drugs seized from Perez’s vehi-
cle. See United States v. Acosta, 85 F.3d 275, 280 (7th Cir.
No. 07-2375 9
1996); United States v. Arroyo, 406 F.3d 881, 889 (7th Cir.
2005) (district court should state and support its finding
that uncharged drug quantities are sufficiently related
to the offense of conviction).
Here, the district court made express findings at Perez’s
sentencing that the drugs seized from his home had the
“necessary relation to the convicted offense.” See Bacallao,
149 F.3d at 719. The district court judge found that the
brick of cocaine seized from Perez’s vehicle and for
which he pleaded guilty had a lizard stamp on it and the
drugs seized from his residence were found in close
proximity to a drug press with a lizard stamp—the
same lizard stamp embossing the cocaine brick seized
from Perez’s vehicle. The district court specifically stated,
To me, there is no question that—as the facts are set
forth in the presentence report that are not objected to,
there was a seizure of—or substantial quantities of
narcotics from the [D]efendant’s residence that he
shared with his wife. Inside the home was a—was a
press that matched—that had a certain label on it
that matched the packaging material that was used
on the cocaine that was found inside the car. It was
near in time, and the fact that it is obvious that the
Defendant was using his home to package narcotics,
and then he was found somewhere away from
the home with a large quantity of cocaine packaged
in the same way as the materials that were found
at the home, suggests to me it was all part of the
same course of conduct or common scheme or plan
such that the drugs that were seized from the home
are relevant to the offense of conviction.
10 No. 07-2375
After determining that the distinguishing mark that
appeared on the drugs seized from Perez’s vehicle
matched the mark found on the hydraulic press found
inside Perez’s residence, which he used to package kilo-
grams of cocaine, the district court did not clearly err in
finding that the drugs seized from Perez’s home were
part of the same common scheme or plan as the offense
for which he was convicted. The drugs were therefore
properly used to enhance his sentence.
B. Firearm Enhancement (2D1.1(b)(1))
Perez also challenges his two-level sentencing enhance-
ment pursuant to Guideline § 2D1.1(b)(1) for possession
of a firearm in connection with his drug trafficking
offense. At sentencing, Perez objected to the enhance-
ment by stating that it was clearly improbable that the
gun was used in connection with a drug offense. For the
first time on appeal, Perez also objects that the govern-
ment failed to establish that he had direct or constructive
possession of the firearm used to enhance his sentence.
Because he did not raise this latter argument during
sentencing or in his written objections to the PSR, we
review this challenge for plain error, as opposed to clear
error. See United States v. Banks, 405 F.3d 559, 564 (7th
Cir. 2005) (issue not raised in district court is reviewed
for plain error).
The relationship (or lack of one) between the weapon
and the underlying offense is a factual assessment, so we
review the district court’s enhancement for clear error.
See United States v. Bothun, 424 F.3d 582, 586 (7th Cir.
No. 07-2375 11
2005). Guideline section § 2D1.1(b)(1) provides for a two-
level increase in the base offense level for a narcotics
offense “if a dangerous weapon (including a firearm)
was possessed.” Application Note 3 explains:
The enhancement for weapon possession reflects the
increased danger of violence when drug traffickers
possess weapons. The adjustment should be applied
if the weapon was present, unless it is clearly improb-
able that the weapon was connected with the offense. For
example, the enhancement would not be applied if
the defendant, arrested at his residence, had an un-
loaded hunting rifle in the closet.
United States Sentencing Commission, Guidelines Manual,
Section § 2D1.1 cmt. n. 3. (Emphasis added). The gov-
ernment first must prove by a preponderance of the
evidence that Perez possessed the gun in a place where
drugs were present. See United States v. Idowu, 520 F.3d 790,
793 (7th Cir. 2008). The evidence presented to the
district court judge at the sentencing hearing established
that Perez owned the house where the firearm and the
various quantities of drugs were recovered. Once that
was established, the burden shifted to Perez to show that
it was “clearly improbable” that the gun was connected
to the offense. See id. The government did not need to
prove that Perez had actual possession of the firearm;
only that he had constructive possession of the
weapon, that is, the power and the intention to exercise
dominion or control over the weapon. See Bothun, 424
F.3d at 586.
12 No. 07-2375
The officers located the .38-caliber Smith and Wesson
gun in Perez’s bedroom in a home which he owned. In
the same home where the gun was found, the officers
also found over $550,000 worth of illegal narcotics and
the materials to package and distribute the drugs. Perez
never challenged ownership of the residence nor did he
dispute that the drugs were retrieved from the same
location where the gun was recovered. This evidence
is sufficient to support the district court’s conclusion
that Perez had constructive possession of the gun found
at his home and that the gun was used in connection
with his drug activity. See Idowu, 520 F.3d at 794 (enhance-
ment applied when gun was recovered at defendant’s
office where drugs were stored and sold); see also Bothun,
424 F.3d at 586 (“guns found in close proximity
to drug activity are presumptively connected to that
activity.”).
Perez argues that it was clearly improbable that the
gun was related to the drug activity because the gun was
not recovered near the drugs and was not “easily accessi-
ble.” Recognizing that it is possible that weapons may be
hidden and still be used as part of drug activity, we
have upheld § 2D1.1 enhancements when a weapon
was recovered in one room of a residence even if it is not
the same room where the drugs were located because
constructive possession requires only the defendant’s
ability to exercise control over the weapon, something
that can be done without holding, brandishing or firing
the gun. See, e.g., Bothun, 424 F.3d at 586 (finding gun
was presumptively connected to drug activity where
gun was found in bedroom of home and drugs were
No. 07-2375 13
found in other parts of the home); United States v. Parra,
402 F.3d 752, 767 (7th Cir. 2005) (it was not “clearly im-
probable” that weapon was used in connection with
drug offense where gun was found under the mattress
in defendant’s bedroom and defendant was selling drugs
out of her house); United States v. Grimm, 170 F.3d 760, 767-
68 (7th Cir. 1999) (it was not “clearly improbable” that
weapon was used in connection with drug offense even
though gun was not found in a place where drugs
were present where gun was found in car that had
been used to transport shipment of drugs six weeks
earlier). We have consistently held that weapons are
“recognized tools of the drug trade” and that the posses-
sion of a gun can advance the possession and future
distribution of narcotics by protecting the drugs or the
drug dealer, by serving as a potent warning to those
who might contemplate stealing the drugs and by serving
as a tool to defend against those who actually undertake
to steal the drugs. United States v. Duran, 407 F.3d 828, 838
(7th Cir. 2005); see also e.g., United States v. Castillo, 406 F.3d
806, 814-15 (7th Cir. 2005). Here, the gun was found in
Perez’s bedroom between two mattresses and in close
proximity to numerous rounds of ammunition while a
distribution quantity of drugs was located in other
rooms of the same house. Also found in the apartment
was a bulletproof vest. The amount of drugs recovered,
the kilo presses and the packaging material all indicate
that Perez was using his home as a drug trafficking
headquarters and as such Perez had an interest in pro-
tecting his investment and securing the safety of his
product. The gun did not need to be located next to the
14 No. 07-2375
drugs to be quickly and easily available for use; Perez
could have retrieved the gun at any moment to protect
his drug trade.
Lastly, Perez’s argument that the gun may not have been
loaded is immaterial because the purpose of the weapon
enhancement is to reflect the increased danger of
violence when drug traffickers possess weapons. Even if
Perez’s gun was unloaded, which is not clear from the
record, there was ammunition for the gun located in the
same room as the gun. Perez could have easily loaded the
gun and used it if he desired to. The mere presence of the
gun escalated the danger of Perez’s drug operation. See
United States v. Brack, 188 F.3d 748, 763-64 (7th Cir. 1999)
(affirming gun enhancement where weapons were un-
loaded when found by police); see also United States v.
Mitchell, 31 F.3d 271, 277-78 (5th Cir. 1994) (affirming
gun enhancement even though gun was inoperable).
Therefore, the district court did not clearly err in
applying the enhancement under § 2D1.1(b)(1).
C. Reasonableness
Lastly, Perez claims that his sentence, which sits at the
very bottom of his guideline range, was unreasonable. We
review sentences for reasonableness, using an abuse of
discretion standard. See United States v. Shannon, 518
F.3d 494, 496 (7th Cir. 2008). A sentence is reasonable if
the district court gives meaningful consideration to the
factors outlined in 18 U.S.C. § 3553(a), including the
advisory sentencing guidelines, and arrives at a sentence
that is objectively reasonable in light of the statutory
No. 07-2375 15
factors and the individual circumstances of the case. See
Shannon, 518 F.3d at 496 (citing Gall v. United States, 128
S. Ct. 586, 596-97 (2007)). The district court need not
address every § 3553(a) factor in a checklist fashion;
rather, the court must simply give an adequate state-
ment of reasons, consistent with § 3553(a), for finding that
the sentence it imposes is appropriate. See Shannon, 518
F.3d at 496. A sentence that falls within a properly calcu-
lated advisory guideline range is presumed reasonable.
See United States v. Omole, 523 F.3d 691, 696 (7th Cir.
2008) (citing Rita v. United States, 551 U.S. 338, 345-48
(2007)); see also United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005) (adopting a rebuttable presumption of
reasonableness for within-guideline sentences).
Here, the sentencing transcript reveals that in sen-
tencing Perez to 135 months, the bottom of his 135-168
month advisory guideline range, the district court suf-
ficiently took into account the factors delineated in
§ 3553(a). The district court found the nature and cir-
cumstances of the offense to be very serious and found
that a within guideline sentence would promote respect
for the law, provide adequate deterrence for both Perez
and others who would contemplate committing a similar
crime and would provide adequate punishment. The
court also stated that Perez’s compliments from former
employers, status as a first time offender and preconvic-
tion custody situation were not enough to justify a non-
guideline sentence. Further, the district court adequately
addressed each and every objection to the guideline
calculation Perez raised and each and every argument
for a non-guideline sentence Perez raised. The record
16 No. 07-2375
reveals nothing to support Perez’s position that the
district court abused its discretion in sentencing him to
the low end of the applicable guideline range.
III. Conclusion
Accordingly, we A FFIRM Perez’s sentence.
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