U.S. v. Guerrero

• Decision Date: 30 January 1990
• Docket Number: Nos. 89-1359,s. 89-1359
• Citation: 894 F.2d 261
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tom GUERRERO, also known as Tom Pacheco, and Helen Guerrero, also known as Princey, Defendants-Appellants. & 89-1484.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 261

894 F.2d 261

UNITED STATES of America, Plaintiff-Appellee, v. Tom GUERRERO, also known as Tom Pacheco, and Helen Guerrero, also known as Princey, Defendants-Appellants.

Nos. 89-1359 & 89-1484.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 20, 1989.

Decided Jan. 30, 1990.

K. Tate Chambers, Asst. U.S. Atty. (argued), Peoria, Ill., for U.S., plaintiff-appellee.

Susan K. Lucas (argued), Peoria, Ill., for Tom Guerrero, defendant-appellant.

Before WOOD, Jr., POSNER and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Tom Guerrero appeals the sentence imposed after he entered a guilty plea to conspiracy to distribute cocaine, 21 U.S.C. Sec. 846. Helen "Princey" Guerrero appeals the sentence she received after pleading guilty to conspiracy to distribute cocaine, 21 U.S.C. Sec. 846; two counts of distribution of cocaine, 21 U.S.C. Sec. 841(a)(1); and a money-laundering charge, 18 U.S.C. Sec. 1956, contained in a separate indictment. Both sentences were governed by the Sentencing Reform Act of 1984, 18 U.S.C. Sec. 3551 et seq. and 28 U.S.C. Sec. 991 et seq., and the Sentencing Guidelines ("Guidelines") promulgated by the United States Sentencing Commission ("Commission"). Tom Guerrero asserts that he is entitled to a new sentence because the district court improperly calculated the sentences of several of his codefendants by sentencing them on the basis of their personal behavior in the conspiracy rather than their "attributable conduct," which was the basis for his own sentence. Additionally, Tom Guerrero argues that the recantation of a major witness who testified regarding the extent of Guerrero's cocaine deliveries requires a remand for imposition of a lesser sentence. Helen "Princey" Guerrero ("Princey Guerrero") maintains that the district court improperly considered her employment of her family in the cocaine enterprise as a factor in aggravation at her sentencing. We affirm.

I. BACKGROUND

A. Facts

Tom and Princey Guerrero were members of a cocaine distribution conspiracy comprised primarily of Guerrero family members. Princey Guerrero headed the conspiracy, which operated out of her home and distributed cocaine in the Galesburg, Illinois area. Princey Guerrero obtained the cocaine during drug-buying expeditions to Chicago. Tim Brown, the only conspirator who did not enjoy a tie of kinship with his cohorts, sold cocaine from Princey Guerrero's house and accompanied her to Chicago acting as a bodyguard. Brown ultimately pleaded guilty to two distribution counts. Helen R. Guerrero, Princey Guerrero's mother, lived with Princey Guerrero and pleaded guilty to conspiring to distribute cocaine from the Guerrero household. Rosemary Guiterrez, Princey Guerrero's sister, pleaded guilty to one count of distribution of cocaine. This matriarchal conspiracy distributed at least one kilogram of cocaine a year from 1986 to August 25, 1988, when the Guerrero enterprise abruptly ended with the participants' arrests. Neither Tom nor Princey Guerrero dispute the district court's findings that all five defendants conspired to distribute cocaine.

B. Tom Guerrero's Sentencing Hearing

a. Factual Background

The indictment charged Tom Guerrero with conspiracy (Count 2), and the substantive offenses of distribution of cocaine on the dates of March 16, 1988 (Count 6), and April 6, 1988 (Count 7). Under a written plea agreement, Guerrero pleaded guilty to the conspiracy count. Tom Guerrero was the first of the conspirators to be sentenced.

At Tom Guerrero's sentencing hearing on February 3, 1989, the court considered and adopted the presentence report's recommended findings of fact, which were revised in several instances by stipulation of the parties. The court found that Guerrero was involved in the conspiracy from December 1987 to August 25, 1988, and that he made deliveries to only two customers during this time period: Stephen Lakis and a confidential informant. At the sentencing hearing, the court adopted the presentence report's finding that Lakis purchased $25,000.00 worth of cocaine (approximately 354.37 grams) from the Guerrero conspiracy. The parties agreed and the court found that Tom Guerrero delivered cocaine to Lakis on a regular, but not daily, basis during this time period. Guerrero's habitual association with Lakis was attributed to the intensity of their sexual relationship rather than the frequency of their drug dealings. The court also found that Guerrero was not engaged in drug transactions during his intermittent sojourns in Chicago. The sentencing judge stated that if Lakis was receiving cocaine on a daily basis from the Guerrero conspiracy, another conspirator was making deliveries to Lakis in the intervals between Tom Guerrero's deliveries. The judge also determined that Tom Guerrero was unaware of the full extent of Princey Guerrero's profit or the amount of cocaine that was distributed during the entire existence of the conspiracy. Nonetheless, when reciting the presentence report's assertion that the Guerrero organization sold at least one kilogram of cocaine a year, the district court noted that "these figures are relevant to this defendant only to the extent that they involve a period of time from December 1987 on."

As required by section 1B1.3 of the Guidelines, the district court determined the appropriate guideline range based on Tom Guerrero's "relevant conduct." Because of his participation in the conspiracy, the district court found that Guerrero was "involved in the distribution of 500 to 700 grams of cocaine." Section 2D1.1(a)(3) of the Guidelines provides for a base offense level of 26 for offenses involving 0.5 to 1.9 kilograms of cocaine. After receiving a two-level reduction for acceptance of responsibility pursuant to section 3E1.1(a) of the Guidelines and a two-level reduction for being a minor participant under section 3B1.2(b) of the Guidelines, Guerrero had a net offense level of 22. After arriving at the defendant's offense level, the court proceeded to consider the defendant's criminal history, which is the second factor in any sentencing determination. Due to his prior transgressions of the law, Guerrero received three criminal history points, which placed him in Criminal History Category II. Cross-referencing an offense level of 22 with a category II criminal history yields a sentencing range of 46 to 57 months. Guidelines, ch. Five, pt. A. Based upon the identical recommendations of the government and defense counsel, the district court sentenced Tom Guerrero to 46 months imprisonment, which was the lowest sentence that could be imposed within the appropriate guideline range. Neither Guerrero nor his attorney disputed the district court's calculation of his sentence under the Guidelines.

Tom Guerrero alleges, however, that his sentence is excessive by virtue of the disparity between his and his codefendants' sentences. Guerrero asserts that he received a disparate sentence as a result of the district court's maladroit application of the Sentencing Guidelines when determining his co-defendants' sentences. Guerrero also contends that he is entitled to a new sentence due to the government's failure to fulfill its obligation to produce evidence favorable to the accused pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The alleged Brady material concerns the government's revelation at Princey Guerrero's sentencing hearing, which was held two weeks after Tom Guerrero's sentencing hearing, that Stephen Lakis, the recipient of Tom Guerrero's drug deliveries, had clarified his earlier statement regarding the amount of cocaine he purchased from the Guerrero conspiracy. On the morning of Princey Guerrero's sentencing hearing, Lakis downgraded his estimate of the amount of cocaine he purchased from the Guerrero conspiracy from approximately $25,000.00 worth of cocaine (354.37 grams) to approximately $7,500.00 (70.88 grams). Tom Guerrero does not dispute the government's representation of when it first learned of and resolved its misapprehension of the amount of cocaine that Lakis received from the conspiracy.

b. Analysis

The standard of appellate review of a district court's sentencing determination is governed by 18 U.S.C. Sec. 3742(e) and (f). ¹ Subsection 3742(e) essentially provides that appellate courts must review the record to determine if a sentence (1) was imposed in violation of the law; or (2) resulted from an incorrect application of the Guidelines; or (3) was imposed for an offense not contemplated by the Guidelines and is plainly unreasonable; or (4) is outside the applicable guideline range and is unreasonable. Subsection 3742(e) further requires that we give due regard to the district court's credibility determinations and accept the sentencing court's findings of fact unless they are clearly erroneous. We are also obliged to give due deference to the district court's application of the Guidelines to the facts. Subsection 3742(f) informs us that we must remand with instructions for resentencing if our review of the record reveals any of the four exclusive bases for reversing a sentence listed in subsections (e) and (f).

Paradoxically, Guerrero directly invokes this court's jurisdiction under 18 U.S.C. Sec. 3742(a)(2), which allows a defendant to appeal sentences resulting from an incorrect application of the sentencing guidelines, while conceding that he was the only member of the conspiracy whose "relevant conduct" for purposes of determining an offense level was correctly calculated. Guerrero's argument regarding Lakis's recantation, however, implicitly invokes appellate review under section 3742(a)(1), which makes appellate review available for sentences imposed in violation of law. This court has recently noted in dictum that appellate review would be available for sentences imposed in violation of law as a result of the sentencing judge's reliance on inaccurate information. See United...