U.S. v. Panaigua-Verdugo
| Decision Date | 08 August 2008 |
| Docket Number | No. 07-2276.,No. 07-2353.,07-2276.,07-2353. |
| Citation | 537 F.3d 722 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Agustin PANAIGUA-VERDUGO and Jose Chavez, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert A. Anderson (argued), Office of the United States Attorney Madison, WI, for Plaintiff-Appellee.
Reed Cornia (argued), Cornia Law, Madison, WI, for Defendants-Appellants.
Before BAUER, KANNE and WILLIAMS, Circuit Judges.
On November 29, 2006, the grand jury returned an indictment charging Agustin Panaigua-Verdugo and Jose Chavez with seven counts of distributing fifty or more grams of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Each count involved a separate drug transaction carried out by Panaigua-Verdugo and Chavez, or Chavez on his own, over a six month period in 2006. On February 23, 2007, Panaigua-Verdugo and Chavez pleaded guilty to one of the counts of the indictment. After a sentencing hearing, the district court sentenced Panaigua-Verdugo to seventy months' imprisonment and Chavez to 108 months' imprisonment. On appeal, Panaigua-Verdugo challenges the district court's refusal to apply a minor participant adjustment to his sentencing calculation; Chavez challenges the district court's decision to include drug amounts beyond his conviction in calculating his sentence; and both defendants challenge the reasonableness of their sentences. For the following reasons, we affirm.
Panaigua-Verdugo argues that the district court erred when it declined to grant him a downward adjustment for playing a minor role in the offense. According to Panaigua-Verdugo, Chavez arranged the majority of the drug deals in question with an undercover agent without Panaigua-Verdugo's input, and, though Panaigua-Verdugo delivered the drugs on the majority of the occasions, his role was substantively inferior during the course of the conspiracy.
Under U.S.S.G. § 3B1.2(b), a defendant's offense level can be decreased by two levels if he was a minor participant in any criminal activity. We review the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Chamness, 435 F.3d 724, 726 (7th Cir.2006). We review the district court's decision to deny a defendant an adjustment for a minor role in an offense for clear error. United States v. Miller, 405 F.3d 551, 557 (7th Cir.2005).1 Clear error exists when, after reviewing the evidence, we are "left with a definite and firm conviction that a mistake has been committed." United States v. Olivas-Ramirez, 487 F.3d 512, 516 (7th Cir.2007). We rarely reverse a district court's decision on this issue, given that the district court is in the best position to evaluate a particular defendant's role in a criminal scheme. United States v. Sorich, 523 F.3d 702, 717 (7th Cir.2008); United States v. Mendoza, 457 F.3d 726, 729 (7th Cir.2006).
The commentary to § 3B1.2 defines a "minor participant" as a defendant "who plays a part in committing the offense that makes him substantially less culpable than the average participant" and "who is less culpable than most other participants, but whose role could not be described as minimal." U.S.S.G. § 3B1.2 cmt. nn. 3(A) & 5. Panaigua-Verdugo has the burden of showing he is entitled to the adjustment by a preponderance of the evidence. United States v. Sandoval-Vasquez, 435 F.3d 739, 745 (7th Cir.2006) (citing United States v. Rodriguez-Cardenas, 362 F.3d 958, 960 (7th Cir.2004)).
Panaigua-Verdugo argues that he should receive the minor participant adjustment because he: (1) lacked full knowledge of the drug operation; (2) received little compensation for his efforts (approximately $100 for the deals); (3) was manipulated by Chavez; (4) did little to forward the drug conspiracy; and (5) acted only as a "firewall," or a buffer, between Chavez and the purchaser. The government, on the other hand, argues that Panaigua-Verdugo did not bring forth enough evidence to establish that he was entitled to the minor participant adjustment.
Panaigua-Verdugo delivered 523.47 grams of methamphetamine during four of the seven drug transactions arranged by Chavez over a six-month period, which amounts to almost ninety percent of the drugs involved in the deals. He played an integral role in the scheme by linking the seller to the buyer. Panaigua-Verdugo received the drugs from Chavez and followed his instructions on how to deliver the drugs. By directly coordinating with Chavez in dealing the drugs to the undercover agent, Panaigua-Verdugo acted as an "essential component" in the conspiracy, and the fact that Chavez was arguably more involved does not entitle a defendant to a reduction in the offense level. See United States v. McKee, 389 F.3d 697, 700 (7th Cir.2004) (citing United States v. Castillo, 148 F.3d 770, 776 (7th Cir.1998)).
The fact that Panaigua-Verdugo did not reap substantial pecuniary gains does not automatically render his level of participation minor. See United States v. Brick, 905 F.2d 1092, 1095 (7th Cir.1990). Panaigua-Verdugo's suggestion that he was just a "firewall" does not take into account the extent of his role. A more proper characterization would be one of a courier, and we have held that a courier may play an important role in any drug distribution scheme, and therefore is not automatically entitled to a mitigating role reduction. See United States v. Hamzat, 217 F.3d 494, 498 (7th Cir.2000).
We conclude that the district court did not clearly err in denying Panaigua-Verdugo a reduction under § 3B1.2(b), with one reservation. During the sentencing hearing, the district court noted that This was an error. A defendant may receive a reduction under § 3B1.2 even if he is held accountable only for his own conduct. United States v. Rodriguez-Cardenas, 362 F.3d 958, 960 (7th Cir.2004) . However, any error in this regard is harmless, because the evidence presented by Panaigua-Verdugo falls far short of showing that he was entitled to the adjustment. Panaigua-Verdugo delivered the vast majority of drugs charged in the case, acting in concert with Chavez in a repeated set of transactions. We uphold the district court's primary conclusion that Panaigua-Verdugo played an integral part in the transactions and therefore did not deserve a minor participant reduction, noting the deference afforded district courts on this issue. See Sorich, 523 F.3d at 717; Mendoza, 457 F.3d at 729.
Chavez appeals from the district court's calculation of the quantity of drugs involved in the offense, arguing that the district court did not explicitly support its finding that the drug amounts in the six other dismissed counts should be included as "part of the same course of conduct" for sentencing purposes. Because Chavez forfeited this issue by failing to raise it below, we review for plain error. United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005). Under that standard, the defendant has the burden of proving an error that is obvious and that affects substantial rights. Id.
Under § 1B1.3(a)(2) of the Sentencing Guidelines, 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 considered "relevant conduct" for sentencing purposes. Relevant conduct is factored into the Guidelines sentencing calculations as if the defendant had been convicted of that conduct. United States v. White, 519 F.3d 342, 347 (7th Cir.2008).
When the district court aggregates drug quantities from unconvicted relevant conduct for purposes of calculating a defendant's base offense level, we require that the court "explicitly state and support, either at the sentencing hearing or (preferably) in a written statement of reasons, its finding that the unconvicted activities bore the necessary relation to the convicted offense." United States v. Arroyo, 406 F.3d 881, 889 (7th Cir.2005) (citing United States v. Bacallao, 149 F.3d 717, 720 (7th Cir.1998)). That said, if it is clear that the district court took into consideration and adopted the facts contained in the presentence report ("PSR"), as well as the government's reasoning concerning those facts, we have upheld the court's decision to include the unconvicted activities as relevant conduct, even without express findings. Id. (citing Bacallao, 149 F.3d at 720).
Because uncharged drug quantities can add months or years to a defendant's advisory guidelines range, we require that the evidence relied upon by the district court at sentencing must bear "sufficient indicia of reliability." United States v. Wilson, 502 F.3d 718, 721-22 (7th Cir.2007) (citing United States v. Acosta, 85 F.3d 275, 282 (7th Cir.1996)). In Chavez's case, there must be reliable evidence to support the district court's conclusion that the unconvicted transactions were "part of the same course of conduct or common scheme or plan" as the convicted transactions. Two or more offenses are part of a common scheme or plan if they are connected by at least one common factor, such as "common victims, common accomplices, common purpose, or similar modus operandi." Bacallao, 149 F.3d at 719 (quoting U.S.S.G. § 1B1.3(a)(2), cmt. n. 9). However, "section 1B1.3(a)(2) must not be read to encompass any offense that is similar in kind to the offense of conviction but that does not bear the required relationship to that offense." Id. at 719-20. In assessing whether there is a strong relationship between the unconvicted conduct and the convicted offense, courts should consider whether the government has demonstrated a...
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