United States v. Romero (469 F.3d 1139, 2006)

KANNE, Circuit Judge.

On October 6, 2004, a grand jury in the Western District of Wisconsin returned an 18-count superseding indictment charging narcotics violations against seven individuals including Raul and Ricardo Romero. The indictment resulted from a two-year joint federal, state and local law enforcement investigation into drug trafficking by the “Romero organization” in Madison, Wisconsin. Several individuals in the Romero organization are brothers including Raul and Ricardo Romero.' The government alleged that Raul Romero was a drug dealer in the organization while Ricardo Romero was a drug courier.

Raul Romero pled guilty to one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 130 months' imprisonment. Ricardo Romero was found guilty by a jury of one count of conspiring to distribute cocaine in violation of 21 U.S.C. § 846, one count of possession of five grams or more of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Ricardo Romero to a term of 151 months’ imprisonment. Ricardo Romero appeals his conviction and both Ricardo and Raul Romero appeal their respective sentences. We affirm both the conviction and sentences.

I. BACKGROUND

A. Raul Romero

At his plea colloquy, Raul Romero admitted to selling cocaine to an undercover police officer on April 7, 2004. The undercover officer had set up a controlled drug buy as part of the then ongoing law enforcement investigation of the Romero organization. Raul Romero sent Joshua Carrasquillo, another member of the Romero organization, to deliver 27.9 grams of cocaine to the undercover officer in exchange for $850. The transaction occurred in the parking lot of the Kennedy Heights apartment complex in Madison. Carras-quillo also discussed the possibility of future drug transactions with the undercover police officer on behalf of Raul Romero.

In the Presentence Investigation Report (“PSR”), the Probation Officer determined that Raul Romero was responsible for selling drugs from at least November 2003 through April 2004. The Probation Officer calculated Raul Romero’s relevant conduct at 2.5 kilograms of cocaine and, applying the November 2004 Sentencing Guidelines, his base offense level was 28. See U.S.S.G. § 2D1.1(c)(6).

Raul Romero objected to the PSR arguing that he was responsible for less than two kilograms of cocaine. The government countered that the 2.5 kilogram amount was a conservative estimate and the reality was that Raul Romero was responsible for significantly more drugs than the 2.5 kilograms of cocaine set forth in the PSR. The government, however, chose not to pursue an amount above and beyond the 2.5 kilograms at sentencing. The government did argue that Raul Romero should not receive a reduction for acceptance of responsibility if he contested the 2.5 kilograms.

Raul Romero continued in his objection to the PSR and the district court conducted a sentencing hearing on July 20, 2005. The government presented in-court testimony from a Drug Enforcement Administration (“DEA”) agent who participated in the Romero investigation. The DEA agent testified as to the government’s investigation of Raul Romero including undercover drug purchases as well as physical and electronic surveillance. The government also provided in-court testimony from cooperating witness Jose David Suarez and the prior grand jury testimony of cooperating witnesses Jacourtney Ticey and Danny Turner. Suarez, Ticey, and Turner testified as to their participation in, and witnessing of, drug transactions and other drug related activities involving Raul Romero.

The district court determined that the government had met its burden and found Raul Romero responsible for 2.5 kilograms of cocaine. The court also held that Raul Romero was not eligible to receive a reduction for acceptance of responsibility. In explaining her decision, the district court commented:

I mean it’s very clear to me that, Mr. [Raul] Romero, you were involved in a lot more than the quantity that the government said it could prove against you and the quantity that was listed in the Presentence [Investigation] Report. And in contesting that, you were really denying responsibility for your involvement in the amount of cocaine for which you’re responsible, and I’m not going to give you an adjustment for acceptance of responsibility. You knew the risk. You went ahead and took it. Well, this is what the consequence is.

Tr. at 99-100, July 20, 2005. The district court then calculated Raul Romero’s advisory Sentencing Guideline range. Raul Romero’s base offense level was 28 for the 2.5 kilograms of cocaine and this was enhanced by two levels for obstruction of justice for a total offense level of 30. With his criminal history category of III, Raul Romero’s resulting advisory Sentencing Guidelines range was 121 to 151 months’ imprisonment. The district court, after considering the sentencing factors set forth in 18 U.S.C. § 3553(a), imposed a sentence of 130 months’ imprisonment.

B. Ricardo Romero

Ricardo Romero’s conviction is based on his April 30, 2004 delivery of a blue cookie tin that contained cocaine and cocaine base. The government’s theory of the case was that Ricardo Romero transported the drugs to his mother’s apartment on Troy Drive in order to facilitate a drug sale between Raul Romero and Danny Turner. As Ricardo Romero’s present appeal attacks the validity of both his conviction and sentence, we recount the evidence presented at trial and sentencing.

On the morning of April 30, 2004, Mary Jane Almeida, Ricardo Romero’s girlfriend at the time, left her home and went to her volunteer job at a local elementary school. Almeida was seventeen and a high school senior. Almeida and Ricardo Romero had known each other for approximately one and one-half months prior to April 30, 2004. Ricardo Romero, who had spent the prior evening at Almeida’s home, remained at Almeida’s home while she was at her job. Almeida drove Ricardo Romero’s blue Oldsmobile Aurora to the volunteer job. She returned to her home at approximately 11:30 a.m. Almeida and Ricardo Romero had no prior joint plans to leave her home after she had returned from her volunteer job. In fact, Almeida had her own possible plans of going back to her volunteer job later in the day without Ricardo Romero.

Ricardo Romero then received a telephone call. Almeida testified, based on her viewing of the caller ID, that the telephone call had come from Ricardo Romero’s mother’s apartment on Troy Drive. The call lasted a few minutes and promptly thereafter Ricardo Romero and Almeida left for the mother’s apartment. Almeida testified that Ricardo Romero was holding the blue cookie tin when they left for the Troy Drive apartment. She drove Ricardo Romero’s Oldsmobile Aurora accompanying him to the apartment.

Ricardo Romero and Almeida arrived outside the Troy Drive apartment at approximately 11:45 a.m. According to Almei-da, upon arriving, but before exiting the Oldsmobile, Almeida gave the car keys back to Ricardo Romero. However, he immediately returned the car keys to her along with the cookie tin and some clothing asking Almeida to hold onto these items for him. Almeida put the cookie tin, keys and clothing into her large size purse and then she and Ricardo Romero walked into the apartment building. Upon entering the apartment building, Ricardo Romero “grabbed” the cookie tin from Almeida’s purse and then they continued to the apartment. Tr. at 114-15, June 20, 2005.

Several people were in the mother’s apartment when Almeida and Ricardo Romero arrived including Raul Romero, Ricardo Romero’s mother, Ricardo Romero’s nephews, and Turner. Turner testified that he had gone with Raul Romero to the Troy Drive apartment with the intent of receiving cocaine from Raul Romero.Turner had already paid Raul Romero for one-eighth of an ounce of cocaine. Raul Romero informed Turner that he did not have any cocaine when he arrived at the apartment and they needed to wait for cocaine to be delivered. Turner and Raul Romero waited for approximately five to ten minutes and then Ricardo Romero and Almeida arrived. Upon arriving, Ricardo Romero gave the cookie tin to Raul Romero and then Raul Romero went to the bathroom with the cookie tin. Raul Romero then gave cocaine to Turner and Turner left the apartment. The cookie tin was returned to Ricardo Romero who gave the cookie tin back to Almeida. Almeida placed the cookie tin back in her purse and she and Ricardo Romero left the apartment. Almeida was sitting on the living room couch reading a magazine during her time in the apartment.

Law enforcement involved in the Romero organization investigation were performing surveillance of the Troy Drive apartment on April 30, 2004. Officers witnessed Turner leave the apartment building. They also witnessed Ricardo Romero and Almeida enter and exit the apartment building. Law enforcement followed Ricardo Romero and Almeida as Almeida drove Ricardo Romero’s car away from the mother’s apartment. The police officers then executed a valid traffic stop and valid search of the Oldsmobile. Almeida’s purse was on the backseat of the Oldsmobile. The police discovered the cookie tin containing the cocaine and cocaine base. Ricardo Romero and Almeida were then arrested. During its subsequent investigation, the government concluded that Al-meida was neither aware of the drugs in the cookie tin nor involved in any drug transactions and therefore she was not charged in this case.

At trial, the government provided testimony from cooperating witness Suarez to prove that Ricardo Romero was actively involved in drug transactions in the Romero organization and thus aware that he was delivering drugs to Raul Romero on April 30, 2004. Suarez was a drug dealer who purchased drugs from various members of the Romero organization including Raul Romero. Suarez testified that he witnessed Ricardo Romero deliver cocaine to Raul Romero in the parking lot of an apartment building on Badger Road in Madison sometime in late Fall 2003. Suarez also testified that he saw Raul Romero give money to Ricardo Romero on several occasions.

Ricardo Romero countered that he had no knowledge that there were drugs in the cookie tin. His strategy at trial was to attack the credibility of the government’s witnesses on cross-examination. With Almeida, he focused on inconsistencies in her story and the fact that her recollection of events had changed during her various interviews with the police. He also attempted to impeach Almeida with her prior statement from a state court proceeding. The district court sustained the government’s objection to this line of questioning concluding that the state case was an unrelated collateral matter that would unduly confuse the jury. Ricardo Romero also suggested at closing argument that Almeida was the actual drug courier for Raul Romero.

With Turner and Suarez, Ricardo Romero attacked their credibility by pointing out they reached agreements with the government that would lower their sentences in exchange for their cooperation. Ricardo Romero also attacked Suarez’s testimony by noting that he had initially failed to make any mention of Ricardo Romero in his prior statements to law enforcement. Ricardo Romero argued that Suarez had provided the story about witnessing the drug delivery in Fall 2003 after law enforcement had pressed him looking for information on the eve of Ricardo Romero’s trial.

Ricardo Romero also introduced evidence that he was incarcerated in the local county jail until December 16, 2003. On cross-examination, Ricardo Romero had been able to pin down Suarez to a November 2003 date for the Badger Road drug delivery that Suarez claimed to have witnessed between Raul and Ricardo Romero. Ricardo Romero argued to the jury that Suarez’s testimony was impossible because he was in jail in November 2003 and therefore could not have participated in any drug transactions at the Badger Road apartment building parking lot. Without Suarez’s testimony, Ricardo Romero postulated there was no evidence demonstrating that he knew what was in the cookie tin, had any intent to distribute drugs or knew about Raul Romero’s drug dealing activities.

The government also introduced evidence to establish that the cookie tin contained both powder cocaine and cocaine base. The officers who arrested Ricardo Romero testified that they reached their conclusions about the drugs they observed in the cookie tin based on their training and experience. A chemist from the Wisconsin Department of Justice Crime Laboratory also testified as to the testing that he performed on the seized drugs. The chemist stated that it was his opinion that the seized drugs were both powder cocaine and cocaine base commonly referred to as crack cocaine.

After the jury verdicts, Ricardo Romero filed a motion for judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. He argued there was no evidence proving his knowledge as to the existence of drugs in the cookie tin. The district court disagreed holding that there was sufficient evidence for the jury to have inferred that he knew that he was transporting drugs in the cookie tin. The district court also noted that the jury could have credited Suarez with being confused about the date that he witnessed the drug delivery between Ricardo and Raul Romero as Suarez was uncertain about the date that it had occurred. In rejecting Ricardo Romero’s motion, the district court commented, “In light of the evidence, what rational jury would believe that [Ricardo Romero] thought that the tin contained chocolate chip cookies?” R. 237 at 3.

At sentencing, the district court determined that the cocaine base in the cookie tin was crack cocaine. Applying the November 2004 Guidelines, the district court calculated Ricardo Romero’s base offense level at 26. U.S.S.G. § 2D1.1. The offense level was enhanced two levels for use of a minor, U.S.S.G. § 3B1.4, and an additional two level enhancement for obstruction of justice, U.S.S.G. § 3C1.1, for a total offense level of 30. Ricardo Romero had a criminal history of V and his corresponding Sentencing Guidelines Range was 151-188 months. The district court, after considering the factors set forth in 18 U.S.C. § 3553(a), imposed a sentence of 151 months’ imprisonment.

II. ANALYSIS

A. Raul Romero

On appeal, Raul Romero argues that the district court erred when it found that he was responsible for 2.5 kilograms of cocaine and ineligible for a three level reduction for acceptance of responsibility. Specifically, he argues that the district court erred by including in the 2.5 kilogram cocaine amount: (1) 1000 grams of cocaine located in Anthony Romero’s Kennedy Heights apartment, and (2) 850.5 grams of cocaine attributed to him from Turner’s testimony. Raul Romero concludes that he is responsible for at least 500 grams but less than 2 kilograms of cocaine. He argues that his total offense level should only be 25, and with his criminal history category of III, his proposed advisory Sentencing Guidelines range is 70-87 months instead of the 121-151 months range calculated by the district court.

1. Relevant Conduct

Although Booker has transformed the Guidelines from binding to advisory, the “district court remains oblig[ated] to consult the Guidelines.” United States v. Garner, 454 F.3d 743, 747 (7th Cir.2006) (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Laufle, 433 F.3d 981, 987 (7th Cir.2006)). This obligation requires the district court to have “a correct understanding of [the Guidelines’] application to the defendant’s conduct.” United States v. Avila, 465 F.3d 796 (7th Cir.2006). Consequently at sentencing, the “district [court] must resolve [factual disputes], determine relevant conduct by a preponderance of the evidence, and apply the appropriate sentencing] enhancements in order to compute the advisory [Guidelines Sentencing] range.” United States v. Robinson, 435 F.3d 699, 701 (7th Cir.2006) (citing Fed.R.Crim.P. 32(i)(3)(B); U.S.S.G. § 6A1.3(b); United States v. Dean, 414 F.3d 725, 727 (7th Cir.2005)).

“The [district] court’s sentencing] determinations [as to factual disputes] must be based on reliable evidence, not speculation or unfounded allegations.” United States v. Noble, 246 F.3d 946, 951 (7th Cir.2001) (citing United States v. Pigee, 197 F.3d 879, 889 (7th Cir.1999); United States v. Howard, 80 F.3d 1194, 1204 (7th Cir.1996)). The defendant’s “due process right to be sentenced on the basis of accurate information ... is generally satisfied when the facts in question are found by a preponderance of the evidence using information that has a sufficient indicia of reliability to support its probable accuracy.” United States v. Lister, 432 F.3d 754, 762 (7th Cir.2005) (quoting United States v. Townsend, 73 F.3d 747, 751-52 (7th Cir.1996); United States v. Salinas, 62 F.3d 855, 859 (7th Cir.1995); United States v. Ewers, 54 F.3d 419, 421 (7th Cir.1995) (internal quotations and citations omitted)).

“The [Guidelines instruct district courts to calculate sentences based on types and quantities of drugs not specified in the counts of conviction but that were ‘part of the same course of conduct or common scheme or plan’ as the convicted offenses.” United States v. Arroyo, 406 F.3d 881, 888-89 (7th Cir.2005) (quoting U.S.S.G. § 1B1.3(a)(2); United States v. Bacallao, 149 F.3d 717, 719 (7th Cir.1998)). “Two or more offenses are part of a common scheme or plan when they are substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” United States v. Sumner, 265 F.3d 532, 540 (7th Cir.2001) (quoting U.S.S.G. § 1B1.3(a)(2), app. n. 9; United States v. Acosta, 85 F.3d 275, 281 (7th Cir.1996)). In determining relevant conduct, “the district court is entitled to estimate drug quantity using testimony about the frequency of dealing and the amount dealt over a specified period of time.” Noble, 246 F.3d at 952 (citing United States v. Durham, 211 F.3d 437, 444 (7th Cir.2000)). The district court is also entitled to credit testimony that it finds reliable even when that testimony is provided by an “admitted liar, convicted felon, or large scale drug-dealing, paid government informant.” United States v. Blalock, 321 F.3d 686, 690 (7th Cir.2003) (quoting United States v. Partee, 301 F.3d 576, 579 (7th Cir.2002)).

“Generally, a court is entitled to rely on the PSR in ruling on factual issues in the sentencing context so long as the PSR is based upon sufficiently reliable information.” United States v. Willis, 300 F.3d 803, 807 (7th Cir.2002) (citing United States v. Taylor, 72 F.3d 533, 547 (7th Cir.1995)).