112 F.3d 374 (8th Cir. 1997), 96-1292, United States v. Rodriguez

Docket Nº:96-1292, 96-1735.
Citation:112 F.3d 374
Party Name:UNITED STATES of America, Appellee, v. Rodrigo Q. RODRIGUEZ, Also Known as Poncho, Also Known as Jose Luis Camacho Diaz, Appellant. UNITED STATES of America, Appellee, v. Steven A. GLAUS, Appellant.
Case Date:May 05, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 374

112 F.3d 374 (8th Cir. 1997)

UNITED STATES of America, Appellee,


Rodrigo Q. RODRIGUEZ, Also Known as Poncho, Also Known as

Jose Luis Camacho Diaz, Appellant.

UNITED STATES of America, Appellee,


Steven A. GLAUS, Appellant.

Nos. 96-1292, 96-1735.

United States Court of Appeals, Eighth Circuit.

May 5, 1997

Submitted Nov. 21, 1996.

Page 375

John D. Stobbs, II, East Alton, IL, argued, for appellant Rodriguez.

Robert J. Thomas, Jr., St. Louis, MO, argued, for appellant Glaus.

John James Ware, Assistant United States Attorney, St. Louis, MO, for appellee U.S.

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE, 1 District Judge.


Rodrigo Rodriguez and Steven Glaus were indicted, along with eight others, for conspiracy to distribute, and to possess with the intent to distribute, more than one kilogram

Page 376

each of heroin and methamphetamine. See 21 U.S.C. § 841(a)(1), § 846. The conspiracy was alleged to have existed between December, 1992, and June, 1995. After a seven-day trial, a jury convicted both defendants and three co-defendants whose cases we do not address in this opinion (a fourth co-defendant whose case we do not address here was convicted after a separate two-day trial). See also United States v. Bryson, 110 F.3d 575 (8th Cir.1997).

The trial court sentenced Mr. Rodriguez to 292 months in prison, Mr. Glaus to 300 months in prison and a $2,700 fine. Both defendants appeal their sentences. We remand both cases for resentencing by the trial court.


At sentencing, the trial court attributed from three to ten kilograms of heroin and/or methamphetamine to Mr. Rodriguez, which meant that his base offense was set at level 34 under the federal sentencing guidelines. See U.S.S.G. § 2D1.1(a)(3), § 2D1.1(c)(3). The trial court also found that Mr. Rodriguez was an organizer or leader in a crime that involved five or more participants or was otherwise extensive; that finding added four levels to Mr. Rodriguez's offense level. See U.S.S.G. § 3B1.1(a). Finally, the trial court refused to allow a two-level decrease for acceptance of responsibility, see U.S.S.G. § 3E1.1, and instead imposed a two-level increase for obstruction of justice, see U.S.S.G. § 3C1.1.

Mr. Rodriguez challenges all of those decisions by the trial court and argues in addition that the trial court should have applied to him a provision in the drug laws that requires a trial court to impose a sentence below a statutory minimum if the defendant meets certain criteria. See 18 U.S.C. § 3553(f). We consider Mr. Rodriguez's arguments in turn and look first to the amount of drugs appropriately attributed to him. (Mr. Rodriguez's given name is actually Jose Luis Camacho Diaz, but since he was indicted, tried, convicted, and sentenced under the name "Rodrigo Rodriguez," we use it in this opinion for the sake of simplicity.)

Robert Avila (a co-defendant who pleaded guilty and testified for the government) testified that Mr. Rodriguez was his sole source for heroin and his primary source for methamphetamine. Mr. Avila also testified that when he personally did not send to others the heroin and methamphetamine that he got from Mr. Rodriguez, he gave Mr. Rodriguez the addresses where the drugs should go and that Mr. Rodriguez then packed the drugs and sent them to those addresses through a private shipping service. The owner of the private shipping service testified that in the relevant 22-month period, Mr. Avila or someone who was sent by Mr. Avila (whom for the purposes of this opinion we will presume to be Mr. Rodriguez or one of his workers) used the service approximately six times per month (which would total 132 packages).

Even assuming, however, that most of those packages contained heroin or methamphetamine from Mr. Rodriguez, we have no evidence of how much of either drug was in any individual package, despite Mr. Avila's testimony that he bought from fifteen to eighteen grams of heroin from Mr. Rodriguez in the last six months of 1993, that he sent from four to six ounces of heroin and approximately four ounces of methamphetamine to St. Louis in the first six months of 1994, that he sent from eight to twelve ounces of heroin and from four to eight ounces of methamphetamine to St. Louis in the last six months of 1994, and that he sent from four to five ounces of heroin and from eighteen to twenty ounces of methamphetamine to St. Louis in the first three months of 1995 (for a maximum total of almost twenty-four ounces of heroin and...

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