United States v. Dietz, Frederick J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1170 & 04-1243
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAUL J. DELATORRE and
FREDERICK J. DIETZ,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 03-CR-088-S-01 & 03-CR-088-S-02—John C. Shabaz, Judge.
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ARGUED APRIL 4, 2005—DECIDED MAY 4, 2005
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Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Paul Delatorre and Frederick Dietz
each pleaded guilty to one count of conspiring to possess and
distribute MDMA, commonly known as ecstasy, see 21 U.S.C.
§§ 846, 841(a)(1), and were sentenced to 180 and 60 months’
imprisonment respectively. Both defendants appeal their
sentences, arguing that the district judge held them account-
able for too much ecstasy. See U.S.S.G. § 1B1.3(a)(2). They
also contend, relying on United States v. Booker, 125 S. Ct.
738 (2005), that the judge violated their constitutional rights
by determining drug quantity himself and then sentencing
2 Nos. 04-1170 & 04-1243
them as if the guidelines were mandatory. Delatorre also
insists the court should have granted his motion for a down-
ward departure under U.S.S.G. § 5K2.0. We remand both
cases under United States v. Paladino, 401 F.3d 471 (7th
Cir. 2005), for the limited purpose of determining whether
the additional latitude Booker’s remedy affords the judge
would have aided the defendants.
I.
The facts are undisputed. In April 2003, Belgian customs
officers intercepted a package destined for Wisconsin that
contained almost 250 grams of ecstasy. Drug Enforcement
Agency agents executed a controlled delivery, leading them
to arrest Dietz. He confessed that Delatorre, a friend in
New York, had arranged for a supplier in Amsterdam to
ship him the drugs.
Dietz recounted his involvement with Delatorre’s distribu-
tion activities. In May 2000, Dietz entered the United States
with roughly 1.3 kilograms of ecstasy procured by Delatorre
in Amsterdam. U.S. customs agents discovered the package
concealed in Dietz’s pants but did not arrest him, and the
U.S. Attorney for the Eastern District of New York declined
to prosecute. Dietz also admitted that around that time he
was shipped one other package by agreement with
Delatorre, though he insisted that he never opened it and
thought it contained marijuana.
With Dietz’s cooperation, agents arrested Delatorre, who
in his own confession corroborated Dietz’s account of their
roles in the conspiracy. Delatorre recounted his distribution
activities spanning five years—providing destinations,
approximate quantities, dollar amounts, and rough dates.
He also said the package Dietz recalled receiving in 2000
contained not marijuana, but 3,000 pills of ecstasy.
Based primarily on Delatorre’s admissions, the probation
officer recommended holding him responsible for an amount
Nos. 04-1170 & 04-1243 3
of ecstasy equivalent to about 2,300 kilograms of marijuana,
leading to a base offense level of 32. See U.S.S.G.
§§ 2D1.1(a)(3), (c)(4), cmt. n.10. The probation officer further
recommended an increase for Delatorre’s managerial role,
see U.S.S.G. § 3B1.1(c), a decrease for acceptance of re-
sponsibility, see U.S.S.G. §§ 3E1.1(a), (b)—yielding a total
offense level of 31—and a criminal history category of V.
Delatorre objected to the proposed drug quantity, contend-
ing that his uncorroborated admissions were too imprecise
to support it. He also moved for a downward departure
under U.S.S.G. § 5K2.0 because his unstinting cooperation
with police provided the sole basis for most of his sentence;
it would be “fundamentally unfair,” he ventured, to hold him
accountable for illegal activities that would have remained
undiscovered absent his confession.
The judge accepted the recommended guideline range,
including the underlying calculation of Delatorre’s relevant
conduct. In light of the three acceptance points awarded
Delatorre, the court denied his motion for a downward de-
parture. The judge reasoned that Delatorre’s candid confes-
sions to police after his arrest were not so unusual as to
take his case outside the heartland of similar guidelines
cases. Delatorre’s sentence of 180 months’ imprisonment
fell at the middle of the 168- to 210-month guideline range.
As to Dietz, the probation officer recommended holding
him responsible for an amount of ecstasy equivalent to just
over 1,100 kilograms of marijuana, leading to a base offense
level of 32. See U.S.S.G. §§ 2D1.1(a)(3), (c)(4), cmt. n.10. The
drugs seized from Dietz in the offense of conviction com-
prised roughly 100 kilograms of marijuana equivalent,
while the airport seizure and the package he received in
2000 comprised the rest. The probation officer further rec-
ommended the “safety valve,” see 18 U.S.C. § 3553(f);
U.S.S.G. §§ 5C1.2, 2D1.1(b)(6), a decrease for acceptance of
responsibility—yielding a total offense level of 27—and a
criminal history category of I.
4 Nos. 04-1170 & 04-1243
Dietz objected, arguing that the two transactions in 2000
were not part of his relevant conduct because they were
separated by three years from the offense of conviction; during
that time he moved out of state and—counsel represented—
left Delatorre and drug dealing behind. The judge overruled
Dietz’s objection, finding that the two transactions in 2000
and the offense of conviction were all part of an ongoing
conspiracy. Even though Dietz moved out of state in 2001,
the judge found, he “maintained contact with Delatorre and
agreed to jointly undertake the same course of conduct and
scheme as he engaged in” before leaving. The judge rea-
soned that the similarity between the offense of conviction
and the previous conduct was so great as to “trump” the
“temporal concern” raised by Dietz. On the government’s
motion, the judge departed downward the equivalent of two
levels based on Dietz’s substantial assistance, see U.S.S.G.
§ 5K1.1, thus imposing a 60-month term that was below the
70- to 87-month guideline range.
II.
Delatorre argues that the district court erred in refusing
to depart downward under § 5K2.0 to recognize that by so
thoroughly incriminating himself he demonstrated accep-
tance of responsibility to an unusual degree. In 2003, the
Sentencing Commission amended § 5K2.0 to prohibit a
departure on this very basis, see U.S.S.G. App. C, amend.
651, but the district court did not think itself bound by this
amendment because it took effect after Delatorre committed
the offense of conviction. Nonetheless, though the court
thought it still had discretion to depart based on extraordi-
nary acceptance of responsibility, it chose not to. That
exercise of discretion is unreviewable. E.g., United States v.
Ferron, 357 F.3d 722, 724 (7th Cir. 2004).
Both defendants contend that the district court erred in
determining the amount of drugs involved in their relevant
Nos. 04-1170 & 04-1243 5
conduct. Drug quantity and whether uncharged offenses are
relevant conduct are questions of fact, which before Booker
we reviewed for clear error, e.g., United States v. White, 360
F.3d 718, 720 (7th Cir. 2004), and still do, see United States
v. Parra, 402 F.3d 752, 762-63 (7th Cir. 2005).
Delatorre argues that his confession was not a proper
basis for establishing drug quantity because it lacked de-
tails—dates, last names, and precise quantities—that were
never established by corroborating evidence. This seems an
odd argument coming from a defendant who insists that the
very same confession was so good that it should merit a
departure for extraordinary acceptance of responsibility.
Regardless, the missing details were irrelevant because
Delatorre’s account of his drug trafficking put him squarely
in the middle of the range of weights that would yield
exactly the same offense level; Delatorre approximated the
amount of ecstasy he distributed at a level equivalent to
2,300 kilograms of marijuana, and the offense level would
have been exactly the same as long as the marijuana equi-
valent was at least 1,000 kilograms. Moreover, we fail to see
why Delatorre’s confession would be unreliable just because
it is incomplete; a defendant’s “admission is even better
than a jury’s finding beyond a reasonable doubt; it removes
all contest from the case.” United States v. Warneke, 310
F.3d 542, 550 (7th Cir. 2002) (citing United States v. Broce,
488 U.S. 563, 570 (1989)).
Dietz argues that the court erred in concluding that the
two drug transactions in 2000 were part of his relevant con-
duct. The earlier transactions, he says, were not part of the
same course of conduct because almost three years passed
before he was caught engaging in the drug deal underlying
his conviction. During the intervening years—we are told by
counsel—Dietz “voluntarily abandoned the course of conduct
in which he had been involved with Delatorre.”
What’s missing, of course, is any evidence to back coun-
sel’s representation; Dietz never testified at sentencing or
6 Nos. 04-1170 & 04-1243
offered evidence of any kind from which the district court
might have concluded that he took a hiatus from drug traf-
ficking after the transactions in 2000. See United States v.
Sykes, 357 F.3d 672, 675 (7th Cir. 2004); Campania Mgmt.
Co., Inc. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir.
2002) (stating that counsel’s representations are not
evidence). What Dietz really means, then, is that the dis-
trict court should have inferred that his drug dealing with
Delatorre was put on hold for almost three years. It makes
no difference.
With respect to drug offenses, U.S.S.G. § 1B1.3(a)(2)
provides that all acts and omissions “that were part of the
same course of conduct or common scheme or plan as the
offense of conviction” should be deemed “relevant conduct”
by the sentencing court. United States v. Sumner, 325 F.3d
884, 889 (7th Cir. 2003). Application Note 9(A) to § 1B1.3
defines “common scheme or plan” as two or more offenses
that are “substantially connected to each other by at least
one common factor, such as common victims, common ac-
complices, common purpose, or similar modus operandi.”
Further, Application Note 9(B) provides that offenses which
are not part of a “common scheme or plan” may still arise
from the “same course of conduct” if they are “connected or
sufficiently related to each other as to warrant the conclu-
sion that they are part of a single episode, spree or ongoing
series of offenses.”
We need not consider whether the district court properly
concluded that Dietz’s 2000 offenses and his offense of con-
viction were part of the same course of conduct even despite
the near three-year gap between them. This conclusion gives
us pause, but ultimately does not matter because the of-
fenses are substantially connected by multiple common
factors; all three transactions involved Dietz, Delatorre, and
a common supplier in Amsterdam working together to
smuggle ecstasy into the United States for distribution.
Under the guidelines any one of these common factors
Nos. 04-1170 & 04-1243 7
would suffice to make the three transactions part of a
common scheme or plan. See U.S.S.G. § 1B1.3, cmt. n.9(A);
United States v. Leonard, 289 F.3d 984, 987-88 (7th Cir.
2002); United States v. Zehm, 217 F.3d 506, 511-12 (7th Cir.
2000). See also United States v. Shonubi, 998 F.2d 84, 89
(2d Cir. 1993); United States v. Lawrence, 915 F.2d 402, 407
(8th Cir. 1990); United States v. Duran, 15 F.3d 131, 134 n.4
(9th Cir. 1994). Thus, even if Dietz were correct in asserting
that his 2000 transactions were not part of the same course
of conduct as the offense of conviction, they are still rele-
vant conduct because they were executed as part of a
common scheme or plan.
Finally, Dietz and Delatorre both argue under Booker that
the judge committed constitutional error when he increased
their offense levels on the basis of his own determination of
drug quantity, and then applied the guidelines as man-
datory. They have forfeited this argument, however, because
neither challenged the constitutionality of his sentence in
the district court. See Paladino, 401 F.3d at 481.
Since nothing in the record suggests whether the district
court would have imposed the same sentences even with the
additional latitude afforded by the remedial holding of
Booker, we agree with the government that a limited remand
under Paladino is appropriate. Accordingly, though we re-
ject all of the guideline arguments raised by Dietz and
Delatorre, we remand both cases for the limited purpose of
soliciting the sentencing court’s view about the probable
result of ordering resentencing. See Paladino, 401 F.3d at
483-84.
8 Nos. 04-1170 & 04-1243
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-4-05