United States v. Benito Mojica

In the
United States Court of Appeals
For the Seventh Circuit
No. 16-2985
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BENITO MOJICA,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 00755-5 — Ronald A. Guzmán, Judge.
ARGUED MAY 25, 2017 — DECIDED JULY 14, 2017
Before WOOD, Chief Judge, and BAUER and HAMILTON,
Circuit Judges.
BAUER, Circuit Judge. Appellant Benito Mojica appeals his
conviction on two counts for various drug-trafficking crimes.
Mojica claims that the district court improperly denied his
motion to suppress cocaine and other evidence. He also
challenges his sentence, disputing the district court’s finding
2 No. 16-2985
that he was jointly accountable for 18.084 kilograms of cocaine.
We affirm.
I. BACKGROUND
A. Investigation and Arrest
Beginning in 2011, the FBI and other law enforcement
agencies investigated a large-scale cocaine-trafficking organiza-
tion operated by Jose de Jesus Ramirez-Padilla (known as
“Gallo”), in Chicago, Illinois. Federal agents placed court-
authorized wiretaps on Gallo’s phones, which intercepted
numerous calls. As a result of this investigation, the govern-
ment charged 40 individuals, including Mojica, with various
drug-trafficking crimes.
In May 2012, Gallo was robbed at gunpoint outside of his
residence where he initially kept his drugs and money. Because
he worried that the robbers would return to burglarize his
home, he looked for a new place to store his drugs and money.
Gallo learned from his brothers that Mojica, who was one of
Gallo’s regular customers, had an apartment to rent.1 Mojica
co-owned a two-story residence on 46th Place in Chicago,
where he lived with his family on the first floor and rented out
the second floor.
On May 8, 2012, Gallo called Mojica, telling him that he was
recently robbed at gunpoint and that he was looking for an
apartment. Gallo explained to Mojica that he wanted his
brothers, Luis Ramirez-Padilla (“Luis”) and Horacio Ramirez-
1
In April 2012, Mojica became one of Gallo’s regular customers, purchas-
ing cocaine from him once every one to two weeks.
No. 16-2985 3
Padilla (“Horacio”), to use Mojica’s second-floor apartment as
a stash house. Gallo assured Mojica that his brothers would
not bring customers to Mojica’s apartment. Mojica agreed to
this arrangement and provided a stash house for Gallo’s
cocaine and drug proceeds from May 20, 2012, until
September 27, 2012.
On September 27, 2012, federal agents executed an arrest
warrant for Mojica. After his arrest, he was transported to the
street outside the front of his home. Meanwhile, other agents
executed a search warrant for the first and second floors of
Mojica’s two-story residence. The agents searched the second
floor, which was rented out to Gallo’s brothers, Luis and
Horacio. During the search, agents found $113,991.60, 86 grams
of cocaine, scales, a cutting agent, and cell phones.
The agents also searched the first floor residence where
Mojica lived with his family. There, FBI Agent Gustavo
Martinez interviewed Mojica’s wife, Sonia Mojica; he learned
that Mojica possessed the only keys to their detached garage,
located near the rear of the property. The keys to the garage
were obtained from Mojica, who was outside in an agent’s
vehicle. Sonia gave the agents consent, both orally and in
writing, to search the detached garage where the agents found
cell phones, various papers, several boxes of baggies, and two
baggies containing cocaine. There was a notepad near the bags
of cocaine with Luis’ phone number followed by the words
“Gallo #2.”
4 No. 16-2985
B. Procedural History
On January 8, 2013, a grand jury returned an indictment
charging 23 individuals, including Mojica, with drug-traffick-
ing crimes. Specifically, Mojica was charged with conspiracy
and possession of cocaine with intent to distribute in violation
of 21 U.S.C. § 846 and 18 U.S.C. § 2. Mojica’s trial was severed
from his co-defendants and ended in a mistrial.
On July 8, 2014, a grand jury returned a superseding
indictment, charging Mojica with the same crimes charged in
the original indictment plus two counts of possession with
intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1),
and four counts of using a cell phone in the commission of a
felony in violation of 21 U.S.C. § 843(b).
Mojica filed a motion to suppress, arguing that Sonia lacked
the authority to consent to the search of the garage. The district
court held a hearing on January 14, 2015, where several
witnesses testified, including Sonia and Agent Martinez. The
district court concluded that Sonia had actual authority to
consent to the search of the garage, finding that Mojica’s
possession of the garage keys was not exclusive and that Sonia
had the right to authorize entry to the garage without specific
permission from Mojica. The district court also concluded that
Sonia had apparent authority, finding that she told Agent
Martinez that she was married to Mojica for 21 years and that
she rarely went into the garage. The district court found that,
having no information to the contrary, the agents were allowed
to rely on the presumption that a spouse has authority to
consent to a search of all areas of the homestead.
No. 16-2985 5
At trial, the government introduced wiretapped calls,
expert testimony about drug trafficking methods, and the
evidence found during the search. The government also
introduced testimony from Gallo, who pleaded guilty and
agreed to cooperate.
Gallo testified that he started making multiple-kilogram
purchases of cocaine – up to three kilograms at a time – while
using Mojica’s property as a stash house. Although Gallo did
not testify as to how frequently he purchased two to three
kilograms, he testified that he replenished his supply as he sold
out. Gallo testified that his brothers stored up to three kilo-
grams of cocaine and up to $150,000 while using Mojica’s
second-floor apartment as a stash house.
On February 5, 2015, the jury convicted Mojica on all counts
of the superseding indictment. Mojica moved for a judgment
of acquittal or a new trial; the court denied the motion.
The Probation Office prepared the Presentence Investiga-
tion Report, recommending that Mojica be held jointly respon-
sible for one kilogram of cocaine per week for 18 weeks,
plus 84 grams that Mojica acquired before he rented out
the apartment to further the conspiracy. This totaled 18.084
kilograms of cocaine, resulting in a base offense level of 32. See
U.S.S.G. § 2D1.1(c)(4) (assigning an offense level of 32 for at
least 15 kilograms but less than 50 kilograms of cocaine). With
an offense level of 32 and a criminal history category of I, the
corresponding advisory Sentencing Guidelines range was
121-151 months’ imprisonment. Mojica filed objections to the
PSR, arguing that the record did not support him being held
accountable for 18.084 kilograms of cocaine.
6 No. 16-2985
At sentencing, the district court rejected Mojica’s objections
to the PSR, adopted the PSR’s recommendations, and sen-
tenced Mojica to 121 months’ imprisonment. This appeal
followed.
II. DISCUSSION
Mojica raises two main arguments. First, Mojica contends
that the district court erred in denying his motion to suppress
the evidence obtained in the search of the detached garage
and, second, he argues that the district court clearly erred
when, for purposes of sentencing, it held him jointly account-
able for 18.084 kilograms of cocaine.
A. Motion to Suppress
When reviewing the denial of a motion to suppress, we
review the district court’s factual findings for clear error and
the legal conclusions, including mixed questions of law and
fact, de novo. United States v. Gevedon, 214 F.3d 807, 810 (7th Cir.
2000). Whether Sonia had actual or apparent authority to
consent to the search of the detached garage is a mixed
question of law and fact and is therefore reviewed de novo. See
id.
A warrantless search of property is per se unreasonable and
a violation of the Fourth Amendment unless the government
demonstrates that an established exception applies. United
States v. Henderson, 536 F.3d 776, 779 (7th Cir. 2008) (citation
omitted). One established exception is a search of property
that is conducted pursuant to voluntary consent given by
a person with authority. United States v. Wright, 838 F.3d 880,
884 (7th Cir. 2016). Consent may be obtained from a person
No. 16-2985 7
whose property is searched, a third party who shares common
authority over the property, or a co-occupant who possesses
apparent authority. Georgia v. Randolph, 547 U.S. 103, 109
(2006). Because we agree with the district court’s conclusion
that Sonia had apparent authority, we need not address the
issue of whether she also had actual authority.
Generally, “[a]pparent authority exists if ‘the facts available
to an officer at the time of a search would allow a person of
reasonable caution to believe that the consenting party had
authority’ over the property to be searched.” Wright, 838 F.3d
at 887 (quoting United States v. Ryerson, 545 F.3d 483, 489 (7th
Cir. 2008)). And, in United States v. Duran, we held that “a
spouse presumptively has authority to consent to a search of
all areas of the homestead … .” 957 F.2d 499, 505 (7th Cir.
1992). Here, it is undisputed that Sonia is Mojica’s spouse; thus,
Mojica must rebut the presumption to prevail. See id.
Mojica contends that Sonia lacked apparent authority
because the facts available to the agents at the time of the
search would not have led a reasonable person to believe that
she had authority over the detached garage. Specifically, he
argues that the agents’ belief that Sonia had authority over the
garage was unreasonable because she told agents that she did
not have a key and that she had not been in the garage for a
month and a half. Citing to United States v. Groves, 530 F.3d 506,
509–10 (7th Cir. 2008), the government counters that the lack of
the possession of a key is only one of many variables to be
considered in determining whether a third party had authority
to consent. Indeed, the lack of the possession of a key is the
only Groves factor that weighs in Mojica’s favor. See Groves,
530 F.3d at 509–10. The government’s argument is persuasive,
8 No. 16-2985
especially in light of the presumption that a spouse has the
authority to consent to a search of all areas of the “homestead.”
Duran, 957 F.2d at 505; Gevedon, 214 F.3d at 811.
Here, Sonia told Agent Martinez that she had been married
to Mojica for 21 years and that they had been living at their co-
owned residence for ten years. Even though Agent Martinez
knew that Sonia rarely entered the garage, he could reasonably
believe that she, as a spouse, had access to the garage but
simply chose not to enter regularly. See Duran, 957 F.2d at 505
(“One can have access to a building or a room but choose not
to enter.”). Although Sonia was not in possession of the garage
key when she was interviewed, neither she nor anyone else
told the agents that she was denied access to the detached
garage. Instead, after the agents obtained the garage key from
Mojica, Sonia signed the consent form to permit the agents to
search the detached garage. Without any information to the
contrary, the agents reasonably relied on Sonia’s apparent
authority. We conclude that Sonia’s apparent authority to
consent to the search of the detached garage was sufficient to
permit the agents’ warrantless search. The district court
properly denied Mojica’s motion to suppress.
B. Cocaine Amount Challenge
Mojica challenges the district court’s determination that he
was jointly accountable for 18.084 kilograms of cocaine. He
maintains that reliable evidence does not support the district
court’s drug-quantity finding and amounts to clear error.
We review for clear error a district court’s factual findings
at sentencing, United States v. Melendez, 819 F.3d 1006, 1011 (7th
Cir. 2016), which includes the drug quantity it attributes to the
No. 16-2985 9
defendant for sentencing purposes, United States v. Hernandez,
731 F.3d 666, 671 (7th Cir. 2013) (citing United States v. Con-
treras, 249 F.3d 595, 602 (7th Cir. 2001)). Under clear-error
review, we “will reverse a drug-quantity finding only if a
review of the record leaves us with a ‘firm and definite
conviction that a mistake has been made.’” United States v.
Miller, 834 F.3d 737, 741 (7th Cir. 2016).
A defendant has a “due process right to be sentenced on the
basis of accurate information[,]” however, a preponderance of
the evidence is all that is required for a drug-quantity finding.
United States v. Bozovich, 782 F.3d 814, 817–18 (7th Cir. 2015)
(citations omitted). Determining drug quantities under the
Sentencing Guidelines is often challenging. Melendez, 819 F.3d
at 1012; see also United States v. Rodriguez, 67 F.3d 1312, 1325
(7th Cir. 1995) (noting that drug dealers typically do not use
invoices). While a district court must avoid “nebulous eyeball-
ing” when determining drug quantity, it need not “emulate the
precision of Newtonian Physics.” United States v. Taylor, 72
F.3d 533, 545 (7th Cir. 1995). A district court “may make
reasonable though imprecise estimates based on information
that has indicia of reliability.” Bozovich, 782 F.3d at 818. A
district court “should normally err on the side of caution”
when choosing among plausible estimates, but it “does not
automatically commit clear error when it fails to use the most
conservative calculation possible.” Melendez, 819 F.3d at 1012
(quoting Bozovich, 782 F.3d at 818).
Here, the district court adopted the PSR’s calculation,
which found Mojica responsible for 18.084 kilograms of
cocaine—1 kilogram per week for 18 weeks—plus the 84 grams
he acquired before renting out the apartment to further the
10 No. 16-2985
drug-trafficking organization. The probation officer made this
determination by relying on information provided by Gallo
and other evidence arising out of the investigation into
his drug-trafficking organization. Particularly, the PSR stated
that, “according to Agent [William] Roecker, the substance
of recorded telephone conversations, the seizure of drugs,
recovery of drug distribution proceeds, and the sworn testi-
mony of [Gallo] establish that the [Gallo drug conspiracy]
handled at least 1 to 2 kg of cocaine per week when [Gallo’s]
brothers resided in Mojica’s apartment.” Moreover, the
probation officer used a conservative estimate by calculating
only one kilogram per week, whereas Agent Roecker deter-
mined that the drug-trafficking organization handled at least
one to two kilograms per week.
Not only did the district court adopt the PSR, but it elabo-
rated on how it found Gallo’s testimony credible and sup-
ported by the rest of the evidence. At sentencing, the district
court stated:
I find the testimony given by Mr. Gallo before
this Court on several occasions, he being the
head of the organization and knowing more
about it than anyone else, is both reasonable and
supported by the rest of evidence. Mr. Gallo had
many, many runners working for him. He had
many, many suppliers. There were dozens of
people associated with this conspiracy, and to
take a slice of the transactions that were done
with one or two people is not an accurate pic-
ture of what was going on. He had an accurate
picture. He testified as to the amount of cocaine
No. 16-2985 11
that was being moved. And having heard him,
having heard him cross-examined on that and
everything else, I find his testimony to be credi-
ble and to establish that, more likely than not,
the amount of cocaine being moved through his
organization is as he said.
Mojica claims that the district court based its drug-quantity
finding on Gallo’s testimony regarding how much cocaine the
drug-trafficking organization moved during the conspiracy.
Mojica’s argument is not that Gallo was unreliable. Instead, his
argument is that Gallo’s reliable testimony does not support
the drug-quantity finding. Mojica claims that Gallo’s testimony
supports a much lower quantity of cocaine, such as somewhere
between 4.86 to 14.59 kilograms of cocaine. He also contends
that this estimate does not take into account the evidence from
wiretapped cell phone conversations that show Gallo was
unable to acquire cocaine for about three weeks.
Mojica’s argument is unpersuasive and only further
supports the district court’s drug-quantity finding. Mojica
arrives at the 14.59 kilograms of cocaine estimate based on
Gallo’s plea agreement, which provided that the drug-traffick-
ing organization distributed 50 to 150 kilograms of cocaine
from January 2009 to September 2012. On the high end, this
equates to 0.81 kilograms of cocaine per week over an 18-week
period. But, Gallo’s testimony indicates that attributing only
0.81 kilograms per week during the 18-week period would
be an underestimation. Gallo testified that the quantities he
purchased substantially increased when using Mojica’s
apartment as a stash house—up to three kilograms at a time.
Even though wiretapped cell phone conversations indicate that
12 No. 16-2985
Gallo was unable to obtain cocaine for about three weeks, the
district court could reasonably, though imprecisely, estimate
that the drug-trafficking organization moved multi-kilogram
quantities at other times, based on Gallo’s testimony and other
evidence. We find no error.
III. CONCLUSION
Mojica’s conviction and sentence are AFFIRMED.