U.S. v. Mendoza

• Decision Date: 12 August 2009
• Docket Number: No. 08-2403.,08-2403.
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Medina MENDOZA, Defendant-Appellant.

576 F.3d 711

UNITED STATES of America, Plaintiff-Appellee, v. Jose Medina MENDOZA, Defendant-Appellant.

No. 08-2403.

United States Court of Appeals, Seventh Circuit.

Argued May 8, 2009.

Decided August 12, 2009.

Brendan A. Maher (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Catherine Kuo Dick (argued), Latham & Watkins LLP, Chicago, IL, for Defendant-Appellant.

Jose Medina-Mendoza, Youngstown, OH, pro se.

Before CUDAHY, MANION, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Jose Medina Mendoza was charged along with Jose Luis Rodriguez and Samuel Perez with a cocaine conspiracy. Perez and Rodriguez also were charged with related drug offenses. They pled guilty to the conspiracy charge, but Mendoza took his chances with a jury and was convicted. The district court imposed a sentence of 120 months, near the upper end of the advisory Guidelines range of 97 to 121 months. Mendoza challenges only his sentence on appeal, and we affirm.

I. Background

In 2006, Drug Enforcement Agency Special Agent Robert Lukens was assigned to the Metropolitan Enforcement Team and deployed to Rockford, Illinois. Lukens was working in an undercover capacity and, in that capacity, he made three controlled purchases of cocaine from Samuel Perez on September 19 and 28 and October 11. Lukens bought approximately one ounce of cocaine in the first two transactions. On the 11th, Lukens bought four ounces. At the end of that transaction, Lukens inquired about purchasing a larger amount of cocaine — a quarter or a half kilogram. Perez responded, "Let me find out, and I'll let you know." Lukens understood Perez to mean that Perez needed to check with his source of supply.

On November 2, 2006, Lukens called Perez around 12:23 p.m. and asked if he could buy a half kilogram of cocaine for $9,000. Perez said that he would have to "talk to his guy" or "his friend," which Lukens understood meant that Perez had to talk to his source. Lukens and Perez agreed to talk again later that day after Perez had talked to his friend.

Lukens and Perez had telephone conversations at 1:35 p.m. and 2:18 p.m. that afternoon. During the first of these conversations, Perez told Lukens that he needed a bit of time to obtain the half kilogram of cocaine and that he would call Lukens back. Lukens understood Perez to mean that he would have to talk to his source. Lukens and Perez discussed $9,000 for cheaper cocaine — cocaine that was diluted and cut — and $10,500 for "the good stuff" — higher quality cocaine. Perez said he could give Lukens the "same kind" (quality) of cocaine he sold him the last time, but it would take time for Perez to get the "good stuff." During the second call, Perez reported that he couldn't get the $9,000 half kilogram that day because "[t]he other guy, he's not ready," but Perez could get the $10,500 half kilogram right away — in about one hour. Lukens agreed to buy the cocaine that was available that day. He told Perez that "[n]ext time I need a money break," to which Perez responded, "Alright ... we can talk in person later." Lukens and Perez arranged for the transaction to take place later that day. During the 2:18 p.m. call, Perez also was talking to another man who said he had to go and if he didn't bring "the caddie" that day, he'd bring it tomorrow.

Lukens and Perez met later that afternoon. Perez delivered the cocaine to Lukens and was promptly arrested. Lukens interviewed Perez after his arrest. During the interview, the cell phone that had been taken from Perez repeatedly rang and the display on the phone said "Chico Che." Lukens testified that this happened approximately half a dozen times.

Perez consented to a search of his apartment, so Lukens and other officers went to Perez's apartment. Mendoza opened the door and said that he was "Chico Che." Inside Perez's apartment, the officers found two presses used to "re-press" cocaine into kilogram bricks after the cocaine had been mixed with cutting agents. Both presses had powder residue on them which later tested positive for the probable presence of cocaine. The officers also found Mendoza's cell phone. Its call log showed several outgoing calls to Perez. Mendoza was arrested.

Mendoza, Perez, and Rodriguez were later charged with conspiracy to possess with intent to distribute and to distribute more than 500 grams of mixtures containing cocaine. Perez and Rodriguez also were charged with related drug offenses. Perez and Rodriguez pled guilty to the conspiracy charge. Perez was sentenced in September 2007 to 72 months' imprisonment. Rodriguez failed to surrender as required and a warrant was issued for his arrest. Rodriguez was sentenced in absentia in December 2007 to 66 months' imprisonment. Mendoza was tried by a jury in February 2008.

Perez testified at Mendoza's trial. Perez stated that on November 2, 2006, when he told Lukens that he needed to "ask somebody" for the half kilogram of cocaine, he didn't have the cocaine himself and he intended to ask Mendoza. Perez testified that after he talked with Lukens, he and Mendoza went to Rodriguez's house to get the half kilogram of cocaine. Mendoza, Perez, and Rodriguez cut the half kilogram off a kilogram piece of cocaine. Perez was given the half kilogram. He didn't pay for the cocaine at that point. According to Perez, he was supposed to sell the half kilogram to the "white guy" — Lukens — and then return to Rodriguez's house and give the money to Mendoza and Rodriguez.

Perez's trial testimony is supported by factual statements in his written plea agreement and his statements under oath at his change of plea hearing. Perez admitted in his plea agreement that he conspired with Mendoza and Rodriguez to possess with intent to distribute and to distribute more than 500 grams of cocaine. He also admitted that Mendoza — whom he knew by his nickname "Chico Che" — was his source of supply for the cocaine for the November 2 delivery. And Perez admitted that he intended to sell the cocaine he received from Mendoza "on credit" to Lukens and provide Mendoza with the money for the cocaine, less Perez's profit. At his change of plea hearing, Perez testified that the facts set forth in his plea agreement were true, thus identifying Mendoza as the source of supply for the November 2 transaction.

Jaime Rodriguez, Rodriguez's wife, testified at Mendoza's trial. She stated that in November 2006, she lived with her husband and children at 510 Gregory Street. She knew Mendoza and knew that he used the name "Chico Che." Jaime saw Mendoza at her house once, on November 2, the same day law enforcement officers searched her house and found one and a half kilograms of cocaine. When she arrived home from work at 5:15 p.m. that day, Chico Che and her husband were at the house. She saw Mendoza on his phone and heard him tell Rodriguez that he was trying to call "Charchai" — Perez. Jaime heard Mendoza tell Rodriguez that Perez robbed him of his dope. Mendoza asked Rodriguez for a ride, and the two left the house together.

Sara Hernandez, who had dated Perez, testified at Mendoza's trial as well. According to Hernandez, on November 2, she tried to call Perez on his cell phone several times, but was unable to reach him. Around 11:00 p.m., Sara went to Perez's apartment where she talked to Mendoza. She told Mendoza that she'd been trying to call Perez, but he never answered the phone. Sara asked Mendoza if he knew what was going on, and Mendoza responded that he didn't know where Perez was. Mendoza added that he was scared that Perez had been pulled over because he hadn't answered his phone or returned Mendoza's calls. Mendoza also stated that he was scared that Perez was playing games with him. Sara asked him, "What kind of games?" and Mendoza answered, "To run away with my money."

According to the Presentence Investigation Report (PSR), in a post-arrest interview given on November 2, 2006, Perez told police officers that he knew Mendoza and knew that he sold "a lot" of cocaine that he brought from Mexico. The PSR indicated that Perez said in the interview that he ran into "Chico Che" at a gas station earlier that morning and asked Mendoza if he would get Perez a half kilogram of cocaine. Mendoza initially declined, but then agreed. According to Perez, Mendoza directed him to go to 510 Gregory Street in Rockford, where Mendoza would wait with Rodriguez for Perez. Perez did as he was instructed. When Perez arrived at Rodriguez's house, Mendoza, Rodriguez and Perez went into the basement. They cut and weighed a half kilogram of cocaine and agreed that Perez would contact Mendoza when he had the money. Perez told the detectives that he agreed to give Mendoza $9,000 for the half kilogram of cocaine.

In later pre-trial interviews Perez's story changed. On January 24, 2008, he first claimed that Mendoza was the source for the cocaine for all four transactions with Lukens. Perez later contradicted himself and claimed that "Pelon" was his source for the first three transactions, but still maintained that Mendoza was the source for the half kilogram he sold Lukens on November 2 and the one and one-half kilograms found at Rodriguez's house. At a previous time, Perez had claimed Pelon delivered the cocaine to him on Mendoza's behalf. However, in a January 30, 2008 pre-trial interview, Perez stated that the half kilogram as well as the cocaine found in Rodriguez's house belonged to Rodriguez, not Mendoza. Perez claimed he had said Mendoza was his source because a detective had told him that was what the detective wanted him to say and if Perez did so, the detective would release him from custody.

The PSR indicates that Rodriguez was interviewed on November 3, 2006. In his post-arrest statement, Rodriguez said that Mendoza arrived from Mexico around October 31, 2006, and asked Rodriguez to keep two kilograms of cocaine for him in exchange for $100. Rodriguez stated that he was "really short on money" and agreed....