United States v. Melendez, Juan , 467 F.3d 606 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1659
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN MELENDEZ, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01 CR 30172—William D. Stiehl, Judge.
____________
SUBMITTED JULY 26, 2006—DECIDED OCTOBER 27, 2006
____________
Before RIPPLE, KANNE, and, WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Juan Melendez was convicted by a
jury of conspiracy to distribute and possession with intent
to distribute marijuana, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (Count 1), and aiding and abetting
the possession of marijuana with intent to distribute in
excess of 100 kilograms in violation of 18 U.S.C. § 2 and 21
U.S.C.§ 841(a)(1) & (b)(1)(B) (Count 2). Melendez appealed
his convictions, sentence, and forfeiture. In United States v.
Melendez, 401 F.3d 851 (2005), we affirmed the conviction
and forfeiture but ordered a limited remand to ask whether
the district judge, had he known the Sentencing Guidelines
were advisory, would have imposed the same sentence on
Melendez. See United States v. Booker, 543 U.S. 220 (2005);
2 No. 03-1659
United States v. Paladino, 401 F.3d 471, 484-85 (7th Cir.
2005). Judge Stiehl answered that he would. Therefore,
there was no prejudice arising from the Booker error, and
we review Melendez’s sentence for reasonableness. See
United States v. Re, 419 F.3d 582, 583 (2005) (citation
omitted).
Because we did not previously evaluate the appropriate-
ness of the Guidelines calculation, we do so now. In addition
to the convictions, the jury returned a special verdict
finding beyond a reasonable doubt that the amount of
marijuana involved in the Count 1 conspiracy exceeded
1000 kilograms and the amount in Count 2 exceeded 100
kilograms. At sentencing, the district judge, in agreement
with the presentence report, found by a preponderance of
the evidence that the conspiracy involved between 10,000
and 30,000 kilograms and that Melendez was the leader or
organizer of the conspiracy. See U.S. Sentencing Guidelines
Manual §§ 2D1.1(c)(2) & 3B1.1(a) (2002). The judge deter-
mined the offense level was 40 and criminal history cate-
gory was I, giving a range of 292-365 months. The judge
imposed a sentence of 300 months’ imprisonment. Melendez
challenges the court’s calculation of the quantity of mari-
juana and finding as to his role in the conspiracy.
We review the district court’s interpretation of the
Sentencing Guidelines de novo and factual conclusions for
clear error. United States v. Chamness, 435 F.3d 724, 726
(7th Cir. 2006). The court’s calculation of a drug amount is
a finding of fact we review for clear error. United States v.
Olson, 450 F.3d 655, 685 (7th Cir. 2006). Melendez is “liable
not only for the amounts he personally sold but also for the
foreseeable amounts sold by his co-conspirators.” Id. (citing
United States v. Jarrett, 133 F.3d 519, 531 (7th Cir. 1998)).
The court’s “determination of reasonable foreseeability is a
factual determination reviewed for clear error.” Id.
Melendez admits that for purposes of assessing his
relevant conduct under the Sentencing Guidelines, he was
No. 03-1659 3
accountable for the marijuana which he supplied to Ray-
mond Torbellin and which Torbellin stored for Melendez
(4,082 kilograms), in addition to certain marijuana transac-
tions in 2000 and 2001 (1,687.8 kilograms), a total of “only”
5,769.8 kilograms.1 However Melendez argues it was clear
error for the district court to have found an amount of more
than 10,000 kilograms of marijuana. The court considered
marijuana from a variety of sources in its calculus and
determined Melendez was accountable for an amount
exceeding 21,000 kilograms (the court approximated 25,000
kilograms). So if the record supports an amount from these
additional sources in excess of 4,230.2 kilograms, there will
be no clear error.
We need only consider the court’s inclusion of the 10,227
kilograms (22,500 pounds) of marijuana Torbellin sold to
Scott Vilmer during the conspiracy, all of which Melendez
argues should have been excluded. Of this amount,
Melendez argues 7,500 pounds is the same marijuana he
admitted he provided to Torbellin before 1998 and 2,500
pounds is the marijuana relating to the 2000 and 2001
transactions. To include these, says Melendez, would be
double counting. But that leaves 12,500 pounds (5,669.9
kg)–sufficient to uphold the sentence enhancement if
properly included.
The 12,500 pounds represents the amount of marijuana
Torbellin supplied to Vilmer between 1989 and 1998 when
1
We note the court and Melendez used differing values to convert
pounds to kilograms, with the court adopting the “rule of thumb”
of 2.2 lb/kg and Melendez using 2.234 lb/kg. Because the kilogram
measures mass and the pound measures weight— a man on the
moon weighs less than he does on earth although his mass is
unchanged—there is no absolute conversion value. Melendez’s
method works to his benefit because it yields a lower number of
kilograms, but only by a fraction. In any event, Melendez did not
raise the issue, and the discrepancy is insufficient to find clear
error.
4 No. 03-1659
Melendez was not Torbellin’s source. Melendez points to
Torbellin’s testimony, in which he stated he did not begin
purchasing from Melendez until after he had been selling to
Vilmer (although Melendez did admit in his brief to being
a participant “early on”). Melendez also points to a two-year
period (1994-96) in which Torbellin testified he had no
contact with Melendez and was not selling marijuana to
him. Melendez argues he was not liable for acts occurring
before he entered the conspiracy and while he was not
participating in it.
Even if we accept Melendez’s argument, at most he can
show that the 5,669.9 kilogram figure is an overstatement
by some amount, but he goes no further. We can no more
conclude the amount should have been reduced by 20
kilograms than by an amount in excess of 1,439.7 kilograms
(the amount pushing Melendez past the 10,000 kilogram
threshold). As such, Melendez cannot show it was clearly
erroneous—and thus we are not left with a definite and
firm conviction that a mistake has been made, see, e.g.,
United States v. Feekes, 929 F.2d 334, 338 (7th Cir.
1991)—to find him accountable at sentencing for an amount
exceeding 10,000 kilograms. The enhancement under
§ 2D1.1(c)(2) was warranted.
Next, Melendez argues it was error for the court to assess
a four-level increase under § 3B1.1(a) for his role in the
conspiracy (involving five or more participants) as a leader
or organizer. Again, the court’s findings of fact will only be
disturbed for clear error while its interpretation of the
guidelines is reviewed de novo, see United States v.
Sensmeier, 361 F.3d 982, 986 (7th Cir. 2004). Melendez
argues he was not a leader or organizer, but merely a
distributor.
At sentencing, the court discussed the trial testimony
to support his finding that Melendez took an active part
in the distribution activities of the organization (consisting
No. 03-1659 5
of at least twenty identified participants), particularly
in the latter part of the conspiracy. Notably, Melendez
instructed and supervised Fidel Trevino and Pablo Navarro
(two men who accompanied him on at least one delivery),
Salomon Rosales (a truck driver who drove a semi-truck
trailer load of drugs), and delivery persons who transported
the marijuana from Indianapolis, including Sylvia Cruz,
Rene Olvera, Melendez’s own wife, and a person known as
“Danzo.”
Melendez avoided physical labor and frequently over-
saw and instructed others to break down the large loads
of marijuana into ten-pound blocks, but he did personally
tally the marijuana loads at the time of delivery to ensure
that he was paid for every pound. He also approved a
refund to Vilmer for 300 pounds of marijuana that was
“bad.” This mountain of evidence is more than adequate to
affirm the district court’s finding that Melendez was a
leader or organizer under § 3B1.1(a) and uphold the
resultant application of a four-level enhancement.
Because we conclude the district court properly calculated
Melendez’s guideline range (292-365 months) and imposed
a sentence within that range (300 months’ imprisonment),
Melendez’s sentence is entitled to a presumption of reason-
ableness. United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). Melendez argues nevertheless his sentence
is unreasonable under the factors delineated in 18 U.S.C.
§ 3553(a).
We will uphold sentences on Paladino remand if the
district judge gave “meaningful consideration” to the
statutory factors. United States v. Williams, 425 F.3d 478,
480 (7th Cir. 2005). Here, Judge Stiehl reaffirmed his
sentencing rationale. He stated he considered the statu-
tory sentencing factors, including the directive that the
court impose a “sufficient, but not greater than necessary”
sentence. Judge Stiehl recounted several factors he took
6 No. 03-1659
into account when he imposed Melendez’s sentence.
Melendez’s arguments—resting primarily on his irrelevant
conduct after sentencing, see Re 419 F.3d at 583—are
insufficient to rebut the presumptive reasonableness of
his sentence.
Melendez’s sentence is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-27-06