United States v. Juan Zamudio ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐3016
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JUAN ZAMUDIO,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 16 CR 251 — Tanya Walton Pratt, Chief Judge.
____________________
SUBMITTED SEPTEMBER 9, 2021* — DECIDED NOVEMBER 18, 2021
____________________
Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.
KANNE, Circuit Judge. Following an investigation of an In‐
dianapolis‐based drug trafficking organization, the govern‐
ment secured a warrant to search Juan Zamudio’s residence,
where they found large amounts of methamphetamine, a
* We granted the parties’ joint motion to waive oral argument, and the
appeal is therefore submitted on the briefs and the record. FED. R. APP. P.
34(a)(2)(C).
2 No. 20‐3016
digital scale, and a loaded firearm. Zamudio pled guilty to
two drug‐related offenses and was sentenced to 300 months’
imprisonment. Zamudio now challenges three aspects of his
sentence: the district court’s calculation of his base offense
level based on the amount of drugs attributed to him; the
court’s application of a 2‐level firearm enhancement; and the
court’s application of a 2‐level enhancement for maintaining
a drug premises. We affirm the judgment of the district court
on each of these issues.
I. BACKGROUND
In 2016, the government began investigating a metham‐
phetamine trafficking organization in Indianapolis run by
Zamudio’s brother, Jose Zamudio. Jose coordinated the im‐
portation of controlled substances from Mexico, and Zamudio
assisted his brother in distributing some of the drugs to co‐
conspirators and laundering the proceeds back to Mexico.
That November, agents executed a search warrant for
Zamudio’s Indianapolis residence, where they found 10.961
kilograms of pure methamphetamine stored throughout the
garage. Agents also searched Zamudio’s vehicle, finding
roughly a pound of meth, a digital scale, and a loaded
Bersa .380 pistol. Zamudio was arrested that same day. At the
time of arrest, he had a round of .380‐caliber ammunition in
his pocket.
Zamudio was charged by indictment with four illegal
drug‐ and firearm‐related offenses. He pled guilty to Count 1
(conspiracy to possess with intent to distribute fifty grams or
more of methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and 846) and Count 11 (conspiracy to launder
No. 20‐3016 3
monetary instruments (promotion), in violation of 18 U.S.C. §
1956).
The district court held a sentencing hearing at which it
heard testimony from an agent who was involved in the in‐
vestigation. For Count 1, the district court calculated
Zamudio’s sentence under the Sentencing Guidelines as fol‐
lows. The court adopted the recommendation of the presen‐
tence investigation report (“PSR”) and attributed at least 4.5
kilograms of actual methamphetamine to Zamudio, requiring
a base offense level of 38 under U.S.S.G. § 2D1.1(a)(5) and
(c)(1) – after finding that Zamudio allowed his brother to store
nearly 25 pounds of pure methamphetamine in his garage.
The court then applied two enhancements as recommended
by the PSR: a 2‐level firearm enhancement under U.S.S.G. §
2D1.1(b)(1), after finding that the loaded firearm was seized
from Zamudio’s car; and an additional 2‐level enhancement
for maintaining a drug premises under U.S.S.G.
§ 2D1.1(b)(12), after finding that Zamudio stored a large
quantity of meth at his residence for several months. Thus, the
adjusted offense level for Count 1 was 42. (The district court
also determined an offense level of 42 for Count 11, but that
sentencing calculation is not at issue.)
Given Zamudio’s total offense level of 42, see U.S.S.G.
§ 3D1.3(a), and his criminal history category of I, the guide‐
lines range was between 360 months’ imprisonment and life.
The district court sentenced Zamudio to 300 months’ impris‐
onment on Count 1 and 240 months’ imprisonment on Count
11, to be served concurrently, which reflected a downward
variance based on Zamudio’s personal history and character‐
istics.
4 No. 20‐3016
II. ANALYSIS
On appeal, Zamudio argues that the district court made
three mistakes at sentencing: the district court’s base offense
level calculation was erroneous because its finding attributing
at least 4.5 kilograms of actual methamphetamine to Zamudio
was not supported by credible evidence, and the district court
erred in applying both the firearm enhancement and the drug
premises enhancement to his sentence. We address each issue
in turn.
A. Base Offense Level
Zamudio first contends on appeal that the district court
erred when it attributed at least 4.5 kilograms of actual meth‐
amphetamine to him and determined a base offense level of
38 under U.S.S.G. § 2D1.1(a)(5) and (c)(1). At sentencing, how‐
ever, Zamudio only challenged his base offense level on the
basis that he should receive a downward adjustment under
U.S.S.G. § 3B1.2 as a minimal participant in the criminal activ‐
ity. The government therefore urges us to review the district
court’s determination for plain error, rather than clear error,
because Zamudio failed to object on the specific grounds he
now raises on appeal. Either way, though, we see no error in
the district court’s determination.
According to Zamudio, there was no evidence presented
that he was aware of the 10.961 kilograms of meth seized from
his residence or that the drug quantities were reasonably fore‐
seeable to him. See United States v. Brown, 822 F.3d 966, 976
(7th Cir. 2016) (“[A] defendant is liable for all of the drugs be‐
ing sold for which he is directly involved, as well as all other
sales which are reasonably foreseeable and within the scope
of the conspiracy.” (citing U.S.S.G. § 1B1.3(a)(1)(B) cmt. n.2)).
No. 20‐3016 5
Zamudio maintains that the district court found that the
drugs belonged to and were placed in Zamudio’s garage by
Jose, so there was no basis to attribute the drugs to Zamudio.
Appellant’s Br. at 18. In fact, however, the district court found
that Zamudio admitted to agents that he allowed his brother
to store meth in the garage. This finding was supported by
Zamudio’s earlier proffer to the government in which he
acknowledged that his garage had been used to store drugs
for several months, as well as the agent’s testimony at sen‐
tencing that Zamudio stored the drugs in his garage at his
brother’s “supervision and direction.” It was also supported
by the PSR, which stated that the residence “was used by Jose
Zamudio and Juan Zamudio to store methamphetamine.” See
United States v. Longstreet, 567 F.3d 911, 928 (7th Cir. 2009) (“A
district court may rely on a PSR’s recommended calculations
where the defendant fails to alert the court to potentially in‐
accurate or unreliable information.”). This evidence is suffi‐
cient to establish Zamudio’s direct involvement with the
drugs. Zamudio points to no evidence showing that he was
unaware of the meth in his garage.
Zamudio also cannot demonstrate that the drug amounts
were not reasonably foreseeable to him or within the scope of
the conspiracy. Although he asserts that there was no evi‐
dence showing that the meth found in his garage was “in‐
volved in the conspiracy,” Appellant’s Br. at 18, the district
court found that Zamudio allowed his brother, “the leader of
the conspiracy,” to store those drugs in the garage. Zamudio
also maintains that his only actions in furtherance of the con‐
spiracy were to sell two pounds of meth and to launder ap‐
proximately $7,000 in drug proceeds, so he was not aware of
the scope of the drug conspiracy. Appellant’s Br. at 18.
6 No. 20‐3016
At sentencing, however, the district court described
Zamudio as Jose’s “right‐hand man” and “number two ac‐
complice” who “played an instrumental role in the conspir‐
acy.” For Zamudio’s sentence to stand, there must be suffi‐
cient evidence to support the district court’s assessment of his
role in the conspiracy, such that the extent of the sales opera‐
tion was foreseeable to him. See Brown, 822 F.3d at 976.
Based on the government’s factual basis for the plea, the
PSR, and the agent’s testimony, the district court found that
Zamudio coordinated the sale of drugs to co‐conspirators;
agreed to assist his brother in all aspects of the conspiracy,
according to intercepted text messages; allowed large
amounts of drugs and drug proceeds to be stored in his home;
served as an interpreter for Jose in drug transactions; and
picked up drug proceeds from other customers and wired the
proceeds to the source in Mexico several times. These findings
provide ample support for the conclusion that Zamudio
played a large role in the conspiracy. Thus, the drug amounts
were reasonably foreseeable to him.
In short, the district court did not err in attributing at least
4.5 kilograms of actual methamphetamine to Zamudio, re‐
quiring a base offense level of 38.
B. Firearm Enhancement
Zamudio next contends that the district court erred in ap‐
plying a firearm enhancement to his sentence. Section
2D1.1(b)(1) of the Sentencing Guidelines instructs courts to in‐
crease the base offense level by 2 “[i]f a dangerous weapon
(including a firearm) was possessed.” If the government has
proved that the defendant actually or constructively pos‐
sessed a weapon, the defendant then has the opportunity to
No. 20‐3016 7
show that it is “clearly improbable” he possessed the weapon
in connection with the drug conspiracy. United States v. Thur‐
man, 889 F.3d 356, 372 (7th Cir. 2018).
The district court applied a firearm enhancement after
finding that Zamudio had been surveilled driving his vehicle
on multiple occasions during the investigation, including
when he delivered drugs to a co‐conspirator; that agents
found the loaded .380 Bersa pistol, along with a pound of
meth and a digital scale, in Zamudio’s vehicle; that Zamudio
had a round of .380‐caliber ammunition in his pocket when
he was arrested; and that Zamudio stated, in his earlier prof‐
fer to the government, that Jose gave him the gun and he kept
the gun in his car. Because the gun was found “in ‘close prox‐
imity’ to illegal drugs,” it is “presumed ‘to have been used in
connection with the drug trafficking offense.’” United States v.
Are, 590 F.3d 499, 526 (7th Cir. 2009) (quoting United States v.
Souffront, 338 F.3d 809, 833 (7th Cir. 2003)).
We have upheld the application of a firearm enhancement
in similar circumstances, where the firearm was found near
drugs and/or drug paraphernalia. See, e.g., United States v. Bot‐
hun, 424 F.3d 582, 586 (7th Cir. 2005) (firearms were found in
defendant’s home and storage units near drugs and drug par‐
aphernalia); United States v. Cashman, 216 F.3d 582, 589 (7th
Cir. 2000) (gun was found in defendant’s mobile home near a
scale and other drug paraphernalia).
Zamudio argues that the firearm seized from his car was
unlikely to be used in the drug conspiracy because he had
“utilized his vehicle in a drug transaction” only once and
there was no evidence that he was likely to do so again. Ap‐
pellant’s Br. at 21. We have found the application of a firearm
enhancement to be proper where a gun “was found in a car
8 No. 20‐3016
that was admittedly used on one occasion, approximately six
weeks earlier, to transport a drug shipment,” even though
there were no drugs present in the car. United States v. Grimm,
170 F.3d 760, 768 (7th Cir. 1999). And here, there is even more
evidence tying Zamudio’s gun to the drug offense, as detailed
above.
Zamudio also asserts that his brother stored the firearm
along with the methamphetamine inside Zamudio’s vehicle
without his knowledge, Appellant’s Br. at 22, but there is no
record support for this assertion. Even accepting Zamudio’s
assertion, his argument still fails because the district court
could properly determine that he actually or constructively
possessed a gun found in his car. See United States v. Morris,
836 F.3d 868, 873 (7th Cir. 2016) (finding that it was “justifia‐
ble” to infer that gun belonged to defendant when it was lo‐
cated in his residence and near his personal effects). The dis‐
trict court did not err in applying the firearm enhancement to
Zamudio’s sentence.
C. Drug Premises Enhancement
Finally, Zamudio contends that the district court erred in
applying an enhancement for maintaining a drug premises to
his sentence. Section 2D1.1(b)(12) of the Sentencing Guide‐
lines provides for a 2‐level enhancement “[i]f the defendant
maintained a premises for the purpose of manufacturing or
distributing a controlled substance.” This includes “storage of
a controlled substance for the purpose of distribution.”
U.S.S.G. § 2D1.1(b)(12) cmt. n.17.
Zamudio asserts that there was no evidence showing “that
the sole purpose of [his] residence was involvement in the
drug trade.” Appellant’s Br. at 24–25. Storing drugs, however,
No. 20‐3016 9
“need not be the sole purpose for which the premises was
maintained, but must be one of the defendant’s primary or
principal uses for the premises, rather than one of the defend‐
ant’s incidental or collateral uses for the premises.” U.S.S.G.
§ 2D1.1(b)(12) cmt. n.17. Although Zamudio maintains that
his residence was “a typical residence” and “not an empty
store house,” Appellant’s Br. at 25, residences can still qualify
as drug premises for purposes of the enhancement. While the
application note advises district courts to consider how fre‐
quently the premises was used for lawful versus unlawful
purposes, U.S.S.G. § 2D1.1(b)(12) cmt. n.17, courts are “not re‐
quired to apply a simple balancing test that compares the fre‐
quency of unlawful activity at the residence with the fre‐
quency of lawful uses,” United States v. Contreras, 874 F.3d 280,
284 (7th Cir. 2017). This is because “such a test would immun‐
ize every family home that is also used for drug distribution
from being deemed an illegally maintained ‘premises,’” given
that “the amount of lawful activity in a home is all but certain
to exceed the amount of illegal activity.” Id. (citing United
States v. Flores‐Olague, 717 F.3d 526, 533 (7th Cir. 2013)). In‐
stead, “the sentencing court should focus on both the fre‐
quency and significance of the illicit activities, including fac‐
tors such as quantities dealt, customer interactions, keeping
‘tools of the trade’ and business records, and accepting pay‐
ment.” Id. (citing Flores‐Olague, 717 F.3d at 533, and United
States v. Edwin Sanchez, 710 F.3d 724, 732 (7th Cir. 2013)).
The district court applied the enhancement after finding
that Zamudio acknowledged, in his earlier proffer to the gov‐
ernment, that meth had been stored in his garage for two to
three months before he was arrested. The agent also testified
at sentencing that bundles of meth were found hidden
throughout Zamudio’s garage, including in the stuffing of a
10 No. 20‐3016
dog bed stored in a dryer, in an opening in the wall, in the
garage door opener’s compartment, and in a box of potato
chips. Zamudio maintains that the seizure of meth from his
garage “represents the only evidence that the residence was
ever involved in the drug conspiracy.” Appellant’s Br. at 25.
But even storage of large amounts of drugs alone can justify
application of the drug premises enhancement. See United
States v. Acasio Sanchez, 810 F.3d 494, 495, 497 (7th Cir. 2016)
(defendant was paid $1,500 per month to store large drug de‐
liveries every few weeks over the course of a year). Zamudio
points out that his residence was used to store drugs “on only
one occasion,” Appellant’s Br. at 3, but the district court’s ap‐
plication of the enhancement is further supported here by the
fact that more meth and “tools of the trade”—a digital scale
and firearm—were seized from Zamudio’s vehicle in his gar‐
age. See United States v. Thomas, 845 F.3d 824, 834 (7th Cir.
2017) (upholding application of enhancement where a
“search of the home yielded a digital scale, a cutting agent,
and plastic sandwich baggies with the corners cut out”); Flo‐
res‐Olague, 717 F.3d at 534 (holding that evidence supported
application of enhancement where firearms and other para‐
phernalia were found in defendant’s home). The district court
did not err in applying the drug premises enhancement.
III. CONCLUSION
For these reasons, we AFFIRM Zamudio’s sentence.