U.S. v. Corral, 02-1493.

• Citation: 324 F.3d 866
• Decision Date: 01 April 2003
• Docket Number: No. 02-1493.,No. 02-1734.,02-1493.,02-1734.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernando CORRAL and Fernando Lopez, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

324 F.3d 866

UNITED STATES of America, Plaintiff-Appellee, v. Fernando CORRAL and Fernando Lopez, Defendants-Appellants.

No. 02-1493.

No. 02-1734.

United States Court of Appeals, Seventh Circuit.

Argued February 12, 2003.

Decided April 1, 2003.

COPYRIGHT MATERIAL OMITTED

Andrew B. Baker, Jr. (argued), Office of U.S. Attorney, Hammond, IN, for Plaintiff-Appellee, U.S.

Pablo DeCastro (argued), Serpico, Novelle & Navigato, Chicago, IL, Joseph R. Lopez, Chicago, IL, for Defendant-Appellant, Fernando Corral.

Robert L. Rascia, Serpico, Novelle & Navigato, Chicago, IL, Gerardo S. Gutierrez (argued), Chicago, IL, for Defendant-Appellant, Fernando Lopez.

Before BAUER, POSNER, and RIPPLE, Circuit Judges.

BAUER, Circuit Judge.

Defendants Fernando Corral and Fernando Lopez pleaded guilty to possession with intent to distribute a quantity of powder cocaine. The district court found Corral responsible for more than six, but less than seven, kilograms of cocaine and sentenced him to eighty months' imprisonment. Lopez was sentenced to sixty months in prison followed by three years of supervised release. Corral appeals the district court's sentence to the extent the court held him responsible for five kilograms of cocaine, which he admitted to possessing during negotiations with a government informant. Lopez, however, appeals the district court's imposition of a sentence enhancement under § 2D1.1 (b)(1) of the United States Sentencing Guidelines Manual ("USSG") for possession of a handgun. He also appeals the district court's decision not to impose a sentence reduction under USSG § 3B1.2(b) because he was not a "minor participant" in the offense. For the reasons set forth below, we affirm as to both Defendants.

BACKGROUND

Throughout 1999 and 2000, East Chicago, Indiana, police officer David Zamora worked with a task force from the Drug Enforcement Administration (DEA) on an investigation into drug trafficking by Corral. Officers utilized a confidential informant to conduct several low-quantity purchases of cocaine from Corral, usually in the two to four ounce range. As a result of these transactions, officers directed the source to negotiate a two-kilogram purchase with Corral in March 2000. During those negotiations, which were taped and monitored by police, Corral stated that he had recently purchased five kilograms of cocaine but returned the drugs because they were of poor quality. Corral added that he was expecting a replacement shipment.

Corral arranged to make delivery of one kilogram of cocaine to the informant in December 2000, and police established surveillance of Corral on the day of delivery. During that surveillance, officers witnessed Lopez, whom Zamora recognized as a dealer from nearby Hammond, Indiana, meet with Corral in front of a bar in East Chicago. Officers then followed Lopez to an apartment at 4817 Baring Street, while continuing separate surveillance of Corral.

Some time later, Corral arrived at 4817 Baring Street, entered the residence, and remained inside the home for a short time before leaving. Zamora then directed the informant to call Corral and ask if Corral had the kilogram of cocaine. Corral responded affirmatively, and officers arrested him shortly thereafter while he was driving in a car with his girlfriend and her young son. The kilogram of cocaine was seized from Corral's girlfriend, who stated that Corral had handed it to her when police approached the car.

After being Mirandized, Corral told officers that he had purchased the drugs from a person named "Jose" at the address on Baring Street. Corral pointed out the exact apartment to officers and claimed that "Jose" lived there with Lopez. Officers transported Corral to jail and continued surveillance of the home. Not long after Corral's arrest, two men left the apartment, and police stopped the men, who identified themselves as Mizell Quinones and Jose Herredia. Herredia told police that he lived at 4817 Baring Street with Lopez and gave consent to search the apartment.

When they arrived at the apartment, Herredia revoked his consent to search the home, stating that Lopez was the actual resident of the apartment and would be the one needed to give consent. The agents knocked on the door for five minutes but received no answer. Zamora then obtained a search warrant and entered the apartment. There, they discovered Lopez hiding under clothing in a closet.

Police also found over five pounds of marijuana hidden in a bean bag chair, pieces of plastic pipe consistent with the type used to package the kilogram of cocaine recovered from Corral, approximately $14,000 taped to the bottom of a chair, a small quantity of cocaine hidden in the bathroom, and a gun hidden in the tank of the toilet. The entire apartment was sparsely furnished and appeared to police to be a drug stash house, rather than a normal residence.

Corral and Lopez were charged and indicted with conspiracy to possess with intent to distribute (Count 1) and possession with intent to distribute (Count 2) a quantity of powder cocaine. Both men subsequently pleaded guilty to the second count, a violation of 21 U.S.C. § 841(a)(1), without a plea agreement. The district court sentenced Corral to eighty months' imprisonment, finding him responsible for more than six, but less than seven, kilograms of cocaine.¹ The court arrived at this range by adding three quantities: 1) the various ounce quantities Corral sold to the informant; 2) the negotiated-for two kilograms; and 3) the additional five kilograms Corral admitted to receiving during negotiations with the informant. Corral appeals only the third quantity for which the district court found him responsible, arguing that his statement about the five kilograms amounted to mere puffing and that he never possessed that amount.

The district court sentenced Lopez to sixty months' imprisonment, increased his sentence for possession of the firearm found in the bathroom pursuant to USSG § 2D1.1(b)(1), but refused to apply a sentence reduction under USSG § 3B1.2(b) for being a "minor participant." Lopez bases his appeal on a claim that he did not live at the Baring Street apartment and was only involved in this transaction to serve as a one-time messenger and to allow Corral entry to the apartment to pick up the drugs.

In support of his argument, Lopez presented testimony at his sentencing hearing from his former landlord and girlfriend, both of whom claimed Lopez lived at an address on 150th Street in Hammond, Indiana, in December 2000. The landlord, however, could not produce a receipt for rent received from Lopez for that month, though he had receipts for previous months. He also stated that Lopez's girlfriend had told him that Lopez no longer lived there and that she had removed his personal belongings. Agent Zamora, Corral, and Herredia each testified that Lopez lived in the apartment on Baring Street. The district court found that Lopez either lived in the apartment or worked out of it for some time prior to his arrest.

ANALYSIS

A. Standard of Review

Because Corral and Lopez present only factual challenges, our review of the district court's factual determinations at sentencing is limited to a clearly erroneous standard. United States v. Buggs, 904 F.2d 1070, 1078 (7th Cir.1990). We will not overturn those findings unless we are left with the definite and firm conviction that a mistake has been made. United States v. Bonilla-Comacho, 121 F.3d 287, 292 (7th Cir.1997).

B. Corral's Relevant Drug Quantity

Corral's only argument is that the district court committed clear error when it determined that he was responsible for an additional five kilograms of cocaine, beyond the negotiated two kilograms. The court's determination was based on a statement made by Corral and recorded by police, while Corral was negotiating a multi-kilogram purchase with the government's informant. During those negotiations, Corral told the informant that he recently returned five kilograms of cocaine because the quality was poor and that he was expecting a replacement shipment soon. Corral now claims that this statement was merely puffing to bolster his bargaining position by showing his interest in quality control.

By arguing that his statement constituted puffing, however, Corral has conceded that the statement was made as a part of his negotiations for a multi-kilogram purchase of cocaine with the government informant. Application Note 12 to USSG § 2D1.1 allows the sentencing court to consider "[t]ypes and quantities of drugs not specified in the count of conviction" and to approximate those quantities, when appropriate, in order to determine the proper offense level. USSG § 2D1.1, cmt. n. 12 (2002). More specifically, Application Note 12 directs the court to consider negotiated quantities from an uncompleted drug transaction, unless "the defendant establishes that he or she did not intend to provide, or was not reasonably capable of providing," the negotiated quantity. Id.

We have interpreted this note to mean that negotiated quantities of undelivered drugs can be included so long as there was true negotiation and not idle talk. Bonilla-Comacho, 121 F.3d at 291-92; United States v. Garcia, 69 F.3d 810, 820 (7th Cir.1995). If a defendant exhibits the intent and ability to provide multi-kilogram quantities of narcotics, his statements constitute true negotiation and not idle talk. Bonilla-Comacho, 121 F.3d at 292.

In Corral's case, nothing in his statement indicates that he was merely bragging to increase his bargaining position. See id. ("Nothing in Bonilla's statement indicates that he was bragging about something he could not accomplish or that he was trying to seem like a bigger drug operator than he really was."). Prior to negotiating a multi-kilogram purchase, the informant had purchased several ounces of cocaine from Corral on multiple occasions over several months. The two had established an ongoing, business relationship and...