65 F.3d 1362 (7th Cir. 1995), 95-1362, United States v. Covarrubias

Docket Nº:95-1362, 95-1363.
Citation:65 F.3d 1362
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jesus S. COVARRUBIAS and Graciela Covarrubias, Defendants-Appellants.
Case Date:September 12, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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65 F.3d 1362 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Jesus S. COVARRUBIAS and Graciela Covarrubias, Defendants-Appellants.

Nos. 95-1362, 95-1363.

United States Court of Appeals, Seventh Circuit

September 12, 1995

Argued June 7, 1995.

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James Porter, Asst. U.S. Atty., Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for U.S.

John Dale Stobbs, II, East Alton, IL, for Jesus S. Covarrubias.

Phillip J. Kavanaugh, Andrea Smith, Office of the Federal Public Defender, East St. Louis, IL, for Graciela Covarrubias.

Before BAUER, COFFEY, and MANION, Circuit Judges.

BAUER, Circuit Judge.

Jesus S. Covarrubias pleaded guilty to possessing marijuana with intent to distribute and possessing a firearm during and in relation to a drug trafficking offense. Graciela Covarrubias, Jesus' wife, was convicted by a jury of possession of marijuana with intent to distribute. The district court sentenced Jesus to seventy-five months imprisonment and Graciela to thirty-three months imprisonment. Jesus challenges his sentence, and Graciela challenges her conviction and her sentence. We affirm.


On July 15, 1994, at approximately 2:15 p.m., Officer Richard W. Pyles of the Collinsville, Illinois, Police Department was on duty patrolling Interstate 55/70 in a marked police car. Officer Pyles noticed an eastbound black 1987 Mercury Sable following too closely behind a flat-bed semi truck and weaving back and forth in the lane. Officer Pyles activated his emergency lights and pulled the car over to the shoulder. The driver of the car, Jesus, exited the car and met Officer Pyles between the two vehicles. Jesus identified himself as Jorge Sanchez. Jesus at first stated that he did not have a driver's license but later said that he had a driver's license from Florida and had lost his wallet several weeks ago. Officer Pyles then radioed his backup officer, Sergeant Ed Delmore.

Officer Pyles went to the front of the car and spoke with the front-seat passenger, Graciela, after Sergeant Delmore arrived. Graciela identified herself as Graciela Sanchez. Graciela said that she owned the vehicle but did not have a driver's license. Officer Pyles asked Graciela to check the glove compartment for any papers showing ownership of the vehicle. Graciela opened the glove compartment, pulled out some papers, and closed the glove compartment very quickly. Graciela told Officer Pyles that Jesus was just a friend, they lived in Texas and were on their way to Ohio to pick tomatoes, and the three minor girls in the back seat of the car were her daughters and were unrelated to Jesus. Officer Pyles called his dispatcher to run a record check on the names Jorge and Graciela Sanchez. Jorge Sanchez had no recorded driver's license, and Graciela Sanchez had a driver's license from Texas which was suspended. A license plate check revealed that the car had a junk salvage title issued in January 1994.

Because neither Jesus nor Graciela had a valid driver's license, Officer Pyles, pursuant to his department's policy, decided to tow the car and took Jesus into custody. Officer Pyles ordered Graciela and the three girls to exit the car and began an inventory search of the vehicle. As Officer Pyles approached the car, he noticed the fresh scent of air freshener, which he had not smelled before. Officer Pyles saw a can of air freshener lying on the floor-board in the back seat and two screwdrivers on the front seat floor-board. The trunk of the car had new carpeting which

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was glued to the floor, the sides, and beneath the back window. Officer Pyles could not see the back seat or any stereo speakers through the trunk when the trunk was open. A square piece of wood behind the back wall of the trunk moved as Officer Pyles pushed it. The back wall also had a slit in the carpeting through which Officer Pyles could see several packages wrapped in cellophane and duct tape, which Officer Pyles believed to be contraband. Officer Pyles then arrested Graciela.

The car was towed to a local gas station and further searched by Officer Pyles and Sergeant Delmore. The officers found a hidden compartment between the back seat and the trunk in which the packages were located. The packages were tested and determined to contain approximately seventeen kilograms, or thirty-seven pounds, of marijuana. The officers also found a Smith & Wesson .45 caliber semiautomatic pistol and a box of .45 caliber ammunition on top of the air conditioning ducts behind the glove compartment. The pistol was loaded with eight rounds of jacketed hollow-point bullets. At the police station the officers found a piece of paper and an address book in Graciela's purse which contained several names and phone numbers with Ohio area codes. Graciela claimed to have no knowledge of the paper or address book.

Jesus was questioned at the police station by an agent of the Bureau of Alcohol, Tobacco and Firearms ("ATF") who was fluent in Spanish. Jesus was read his Miranda rights in Spanish and signed an ATF form waiving those rights. Jesus then gave the agent an oral statement in Spanish, which was audiotaped, in which he stated that he was delivering marijuana to certain individuals in Ohio near Interstate 70. Jesus further stated that he had been given the marijuana and pistol by a man whose name he did not know, he would be paid $1,000 for his efforts, and he had constructed the hidden compartment in the car himself. Graciela was questioned separately by the ATF agent and Sergeant Delmore at the police station. Graciela was read her Miranda rights in English and in Spanish and signed an ATF waiver form. Graciela stated that Jesus was a friend and that she and Jesus were travelling to an amusement park in Texas but decided en route to drive to Ohio to earn money by picking fruit. Graciela said that she was on probation for theft. Graciela also stated that she had permission from her probation officer to leave Texas but later admitted that she did not have such permission.

A grand jury returned a three-count indictment against Jesus and Graciela on July 21, 1994. Count One charged Jesus and Graciela with possession of marijuana with intent to distribute. 21 U.S.C. Sec. 841(a)(1). Count Two charged Jesus and Graciela with possession of a firearm during and in relation to a drug trafficking crime. 18 U.S.C. Sec. 924(c)(1). Count Three charged Graciela with possession of a firearm by a convicted felon. 18 U.S.C. Sec. 922(g)(1). Jesus and Graciela pleaded not guilty.

Jesus and Graciela filed a joint pretrial motion to suppress the evidence seized from the car, Jesus' recorded statement, and Graciela's statements at the police station. The defendants asserted that the officers did not have probable cause to arrest either of them, the warrantless search of the car at the gas station violated the Fourth Amendment, and the statements were given in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court held a hearing on the motion on November 7, 1994, the morning of trial. The district court denied the motion following the hearing. Jesus then pleaded guilty to Counts One and Two.

The district court granted Jesus a two-level reduction in his offense level for acceptance of responsibility under Guideline Sec. 3E1.1(a). The district court, however, refused to give Jesus an additional one-level reduction for acceptance of responsibility under Guideline Sec. 3E1.1(b)(2) because Jesus' guilty plea was untimely. The district court sentenced Jesus to fifteen months imprisonment on Count One and a consecutive term of sixty months imprisonment on Count Two followed by two years of supervised release.

Graciela testified in her own defense at trial and denied any knowledge of the marijuana and pistol in the car. Jesus also testified in Graciela's defense at trial. Jesus

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testified that he placed the marijuana, pistol, and ammunition in the car without Graciela being present and never told Graciela about these items or his $1,000 fee for delivering the marijuana. The jury found Graciela guilty on Count One of the indictment and not guilty on Counts Two and Three.

The district court imposed a two-level enhancement in Graciela's offense level for possession of a firearm pursuant to Guideline Sec. 2D1.1(b)(1). The district court refused Graciela's request for a two-level reduction in her offense level for being a "minor participant" pursuant to Guideline Sec. 3B1.2(b). The district court determined that Graciela had a criminal history category of III based in part on two 1985 convictions in Ohio state court for domestic violence and disorderly conduct for which Graciela received a ten-day suspended sentence and was fined $75. The district court sentenced Graciela to thirty-three months imprisonment followed by three years of supervised release.


Jesus challenges his sentence, and Graciela raises several challenges to her conviction and her sentence. We will address their arguments in turn.


Jesus' sole argument on appeal is that the district court erroneously denied an additional one-level reduction in his offense level for acceptance of responsibility under Guideline Sec. 3E1.1(b)(2). The district court's acceptance of responsibility determination is a factual determination which we review for clear error. United States v. Francis, 39 F.3d 803, 807 (7th Cir.1994). Jesus bears the burden of proving his entitlement to the reduction by a preponderance of the evidence. Id.

Guideline Sec. 3E1.1(a) provides for a two-level reduction in a defendant's offense level "[i]f the defendant clearly demonstrates...

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