United States v. Andrade, Jaime , 295 F. App'x 64 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois  60604
Submitted July 24, 2008*
Decided September 24, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
Nos. 06‐3884 & 07‐4035
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 04 CR 522
JAIME ANDRADE and MARIBEL
MIRAMONTES, David H. Coar,
Defendants‐Appellants. Judge.
ORDER
Jaime Andrade and Maribel Miramontes were convicted of drug crimes, see 21 U.S.C.
§§ 846, 841(a)(1), and both appeal their sentences. Ms. Miramontes argues that the government
did not prove that the cocaine she sold was crack, and both defendants contend that in light of
United States v. Kimbrough, 128 S. Ct. 128 (2007), they must be resentenced because the district
*
After examining the briefs and records, we have concluded that oral argument is
unnecessary. Thus these appeals are submitted on the briefs and records. FED. R. APP. P.
34(a)(2).
Nos. 06-3884 & 07-4035 Page 2
court did not appreciate its discretion to disagree with the higher penalty ranges the sentencing
guidelines provide for cocaine offenses involving crack rather than powder. The government
opposes Ms. Miramontes’ first argument but concedes error under Kimbrough. We vacate the
sentences in both cases and remand for resentencing.
A police informant asked Ms. Miramontes to procure drugs for him. The informant
asked for “two,” and Ms. Miramontes called her source, J.D., to ask if J.D. could “get two of ’em
right now.” R. 146 at 3. Together, Ms. Miramontes, her then-boyfriend Andrade, and the
informant drove to meet J.D. After a short wait, J.D. approached their car and confirmed the
price of $500 per ounce before returning with two bags containing a light-colored rock-like
substance. Mr. Andrade asked the informant, “Does it look good to you?” R.99 at 95. The
informant replied, “It’s not that dark.” Id. That comment prompted Ms. Miramontes and Mr.
Andrade to defend the product. In the course of this exchange, Ms. Miramontes said, “I ain’t no
fucking crack head, I fucking deal.” Id. at 96. The informant soon saw a police car and let Ms.
Miramontes and Mr. Andrade out of his car.
Ms. Miramontes and Mr. Andrade were then indicted for conspiring to distribute and for
distributing cocaine, but their cases diverged. Mr. Andrade pleaded guilty to the distribution
count while declining to admit that the cocaine delivered to the informant was crack. At Mr.
Andrade’s sentencing in September 2006, the informant testified that he had requested crack and
that the substance he received looked “[l]ike crack,” meaning it was “a little bit darker than
regular cocaine and hard.” Id. at 11. A police officer testified that after the transaction he
examined the product and, based on “the texture of the substance at the time and the coloring and
the packaging,” he recognized it to be crack. Id. at 34. And a chemist opined that the substance
purchased by the informant was crack. The chemist noted that the parties had stipulated that the
substance was cocaine base, and he pointed to “its visual appearance” and to the fact that
“virtually all” cocaine base sold on the streets is crack. Id. at 53. He acknowledged that sodium
bicarbonate (baking soda) and sodium carbonate are among several substances that can be used
to strip the hydrochloride from powder cocaine in creating crack, but he explained that those
substances are mostly consumed or drained away in the “cooking” process and thus are not
always detectible in the end product. The substance the defendants sold to the informant did not
contain bicarbonate, but even the toxicologist Mr. Andrade called as a witness conceded that
crack does not have to contain bicarbonate.
The district court found that the substance was crack and used that drug in calculating a
guidelines imprisonment range of 140 to 175 months. Mr. Andrade then argued that the court, in
applying the sentencing factors under 18 U.S.C. § 3553(a), should take into account the
sentencing differential under the guidelines for offenses involving like amounts of crack and
powder cocaine. The court, however, imposed a prison sentence of 157 months without
commenting on that contention.
Meanwhile, Ms. Miramontes was a fugitive. After her arrest she had given a statement
acknowledging that the cocaine involved in the transaction was “hard,” but she then skipped her
scheduled change-of-plea hearing and absconded. When she was caught more than a year later,
Nos. 06-3884 & 07-4035 Page 3
she pleaded guilty to both counts of the indictment, but, like Mr. Andrade, declined to admit that
the offense involved crack. Building on Mr. Andrade’s sentencing hearing, Ms. Miramontes
asserted that the absence of bicarbonate proved that the cocaine was not crack. The district court
rejected her contention, and though characterizing the question as “close,” once again found that
the substance was crack. The court looked not only to the evidence at Mr. Andrade’s sentencing
but also to the additional testimony introduced by Ms. Miramontes. She called a consultant in
toxicology and pharmacology, who opined that crack must be made with sodium bicarbonate to
create the “classic crack” or “snap, crackle and pop” the drug produces when burned. Not only
was this testimony inconsistent with the expert testimony introduced at Mr. Andrade’s
sentencing, but the consultant conceded that he was unfamiliar with the methodology the
government had used to test the substance. The government, on the other hand, called a forensic
chemist familiar with the testing methodology used. She testified that the prevalence of inositol
(a cutting agent) in the substance might have made a low level of sodium bicarbonate
undetectable.
The district court took the evidence under advisement and did not sentence Ms.
Miramontes until November 28, 2007, after the revisions to the offense levels for crack in
U.S.S.G. § 2D1.1 had taken effect. The court concluded that the substance was crack and that
Ms. Miramontes had obstructed justice by absconding, resulting in a total offense level of 32.
That figure, combined with Ms. Miramontes’ criminal history category of II, yielded a guidelines
imprisonment range of 135 to 168 months. The court imposed a term of 135 months but said it
would have imposed a lower sentence if it were allowed to consider the sentence disparity
between crack and powder cocaine.
On appeal, Ms. Miramontes first argues that the government did not prove by a
preponderance of the evidence that she distributed crack rather than another form of cocaine
base. The parties in this case stipulated that Ms. Miramontes sold cocaine base, but we have
held that “not all cocaine base is crack.” See United States v. Edwards, 397 F.3d 570, 571 (7th
Cir. 2005). Different (and harsher) sentencing ranges apply under the sentencing guidelines to a
defendant convicted of selling crack, as opposed to powder cocaine, and therefore the
government must prove by a preponderance at sentencing that the cocaine base was crack.
United States v. Padilla, 520 F.3d 766, 769 (7th Cir. 2008). We review the district court’s
finding on drug type for clear error. Id.
Ms. Miramontes mainly argues that the cocaine base in this case was not shown to be
crack because it did not test positive for sodium bicarbonate. That contention ignores the expert
testimony that bicarbonate need not be found in the end product and, in any event, is foreclosed
by precedent. See Padilla, 520 F.3d at 770; United States v. Lake, 500 F.3d 629, 634 (7th Cir.
2007).
Otherwise, this case is unremarkable. We have held that drug type may be proved
through “testimony from people familiar with the drug, . . . including veteran police officers and
forensic chemists,” or “an informant’s belief that he was purchasing crack.” Padilla, 520 F.3d at
771; see Lake, 500 F.3d at 634; United States v. Buchanan, 362 F.3d 411, 413 (7th Cir. 2004).
Nos. 06-3884 & 07-4035 Page 4
The government here introduced evidence in each category. The informant testified that he
believed he was buying crack and that the product and the parties’ conversation during the
transaction were consistent with that understanding. Moreover, the police officer who received
the cocaine base from the informant identified it as crack, as did a forensic chemist. The chemist
also confirmed that forms of cocaine base other than crack are rarely seen in the United States,
meaning it is highly unlikely that the cocaine base in this case was not crack. See United States
v. Kelly, 519 F.3d 355, 364 (7th Cir. 2008). Accordingly, the district court’s finding that Ms.
Miramontes’ crime involved crack is not clearly erroneous. See Padilla, 520 F.3d at 770-71;
United States v. Morris, 498 F.3d 634, 644 (7th Cir. 2007) (holding that district court did not err
in finding that drug was crack where DEA agent testified that substance was cocaine base and
two law enforcement officers testified that appearance and packaging were consistent with
crack); United States v. Linton, 235 F.3d 328, 329-30 (7th Cir. 2000) (upholding district court’s
finding that substance was crack where forensic chemist testified that substance was cocaine
base and both chemist and veteran narcotics agent identified the substance as crack based upon
its visual appearance and packaging).
Ms. Miramontes and Mr. Andrade next argue that they are entitled to a remand for
resentencing under Kimbrough. The government concedes this point. Both defendants
challenged the differential in the sentencing ranges for offenses involving equal amounts of
crack and powder cocaine, see United States v. Bush, 523 F.3d 727, 729-30 (7th Cir. 2008), so
they preserved the Kimbrough claim. Both defendants were sentenced before Kimbrough, when
this court’s precedent foreclosed imposing a sentence below the guidelines range merely because
the district court disagreed with the crack-to-powder ratio in the guidelines. See Bush, 523 F.3d
at 730. Because the judge was not constrained to apply the guidelines ratio to Ms. Miramontes
or Mr. Andrade, their sentences must be vacated.
Because Ms. Miramontes originally was sentenced after the amended guidelines for
cocaine became effective, the district court should employ those guidelines in calculating Ms.
Miramontes’ sentence on remand. After the sentence is calculated using the amended
guidelines, the district court may then consider whether any further reduction, in light of
Kimbrough, is warranted.
A somewhat different approach is called for with respect to Mr. Andrade. Mr. Andrade
was sentenced prior to the adoption of the guideline amendments for crack cocaine. In United
States v. Taylor, 520 F.3d 746 (7th Cir. 2008), we set forth the proper procedure for district
courts to follow with respect to limited Kimbrough remands that had been “complicat[ed]” by
the adoption of the amended guidelines. We stated:
The district judge should hold off on telling us whether she is minded to resentence the
defendant under Kimbrough until she decides whether to act favorably on the defendant’s
motion (if he makes one, or on the judge’s own initiative, if the defendant does not) for
relief under the Commission’s new crack regime. If she decides to impose the same
sentence under the new guideline, or if though she lowers the sentence the defendant
believes that 18 U.S.C. § 3553(a) would warrant a still-lower sentence, or if he does not
Nos. 06-3884 & 07-4035 Page 5
make a proper motion for relief under the new guideline and she is not minded to grant
such relief on her own initiative, she will then have to advise us whether she would be
inclined to reduce his sentence under the dispensation granted sentencing judges by
Kimbrough. To avoid delay, the judge should impose a deadline on the filing of a motion
to resentence; we suggest 21 days after the date of this decision.
Id. at 748. Here, however, a somewhat simplified procedure can be followed because, while
Taylor involved plain error review, here Mr. Andrade preserved his objection to the powder to
crack ratio. Remand, therefore, is warranted. See United States v. Padilla, 520 F.3d 766, 775
(7th Cir. 2008). Similar to the procedure set forth in Taylor, the district court must decide
whether, in response to a motion by the defendant or on the court’s own motion, relief under the
new guidelines is appropriate. Regardless of the district court’s action with respect to the
motion--whether it determines that no relief under the Guidelines should be granted or it decides
to impose a new sentence under the amended guideline--the defendant’s sentence still must be
evaluated in light of Kimbrough.
Accordingly, we VACATE the judgments of the district court and REMAND for
resentencing.