U.S. v. Macias, 90-1208
| Citation | 930 F.2d 567 |
| Decision Date | 28 May 1991 |
| Docket Number | No. 90-1208,90-1208 |
| Parties | 32 Fed. R. Evid. Serv. 954 UNITED STATES of America, Plaintiff-Appellee, v. Ignacio MACIAS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Bradley E. Lerman, Asst. U.S. Atty., Morris Pasqual, Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Jeffrey B. Steinback, Geena D. Cohen, Genson, Steinback & Gillespie, Chicago, Ill., for defendant-appellant.
Before EASTERBROOK, MANION and KANNE, Circuit Judges.
The defendant, Ignacio Macias, appeals his sentence following a jury verdict which found Macias guilty on three counts of possession with intent to distribute cocaine. Macias raises several objections to the district court's calculation of his sentence under the U.S. Sentencing Commission Guidelines ("Guidelines"). He also objects to an evidentiary ruling at trial and claims the evidence was insufficient for conviction.
Based on our review of the evidence and the sentencing hearing, we affirm the conviction and the sentence applied by the district court.
In early 1989 agents of an Undercover Task Force of the Drug Enforcement Administration ("DEA") were told by an informant that Enriquez Perez was a dealer in cocaine. The DEA agents had the informant contact Perez to discuss setting up a cocaine purchase. After several conversations, Perez and the informant (who told Perez he simply represented the actual purchaser) agreed that Perez would sell eight kilograms of cocaine to the informant's purchaser at a purchase price of $144,000 ($18,000 per kilogram). They agreed to complete the deal the next morning and the informant agreed to bring his "principal" in the deal. After making the deal with the informant, Perez spoke with Ignacio Macias on the phone. Perez reached Macias by paging him on a beeper that Macias carried. At trial, Perez revealed that he had sold cocaine to the informant about four or five times in the past, and each time his source of supply was Macias. Perez told Macias that he needed eight kilograms of cocaine for the next morning. Macias told Perez that the cocaine would be available.
The next morning Macias met with Perez and explained that he could only deliver five kilograms of cocaine at that time, but that he could deliver the rest later that evening. Perez told Macias that would have to do and left to break the news to his "clients": the informant and an undercover agent posing as the ultimate purchaser of the cocaine. Perez explained to his "clients" that while he and Macias could deliver only five kilograms at present, he would deliver the remaining three kilograms by about 5:00 p.m. that evening. The "clients" found this agreeable, but first insisted on receiving a sample of the cocaine.
Perez then paged Macias, who drove to meet Perez. Undercover agents later saw him drive Perez to a parked car where the five kilograms of cocaine was secretly stored. Perez entered the parked car alone and, as per Macias' instructions, located the drugs in a secret compartment. He removed one kilogram to use as the sample.
Macias drove Perez back to his apartment where the "clients" received their sample and told Perez that the deal was on. Perez paged Macias who, in response, went up to Perez's apartment, gave Perez the keys to the parked car in which the drugs were hidden, and made arrangements for him and Perez to meet after the deal was completed.
Perez and the undercover agent, followed by the informant, drove to the location of the parked car with the secreted stash. Perez went to the car and retrieved the remaining four kilograms of cocaine from the hidden compartment. Perez then got in the undercover agent's car and gave the agent the cocaine. The agent gave Perez the purchase money. While Perez was counting the money, agents from the Task Force arrested him, seizing a total of 4.8 kilograms of cocaine.
Macias was later arrested at his home. Searches of his house and car uncovered incriminating material including the pagers whose number Perez had called several times to summon Macias during the transaction.
Macias was tried on three counts of conspiracy and possession with intent to sell cocaine. Enriquez Perez and the narcotics officer testified against Macias at trial. The jury found Macias guilty on all three counts of the indictment.
The sentencing hearing for Macias was held on January 17, 1990. Applying the Guidelines, Judge Nordberg found that the base offense level for the conviction under the indictment was 32, based upon the conspiracy to distribute eight kilograms of cocaine. The judge also determined that Macias committed perjury at trial. 1 Accordingly, Judge Nordberg adjusted the base offense level upwards two levels pursuant to Sec. 3C1.1 of the Guidelines. An adjusted offense level of 34 placed Macias in a sentencing guideline range of 151 to 188 months of incarceration. Judge Nordberg sentenced Macias to a term of imprisonment of 151 months, the most lenient sentence in that range, to be followed by five years supervised release, and ordered him to pay a special assessment of $150. Macias now appeals his conviction and his sentence.
Macias argues that the district court misapplied the Sentencing Guidelines when it established a base offense level built on an amount of cocaine greater than that which Macias was proven to have distributed. Macias contends that he should not have been sentenced based on eight kilograms of cocaine since the amount of cocaine delivered to the undercover agent was only 4.8 kilograms. There is no indication in the record of the sentencing hearing that Macias made any objection to the inclusion of the eight kilograms in the determination of his sentence. Because he failed to raise an argument before the sentencing court he has waived the issue on appeal. United States v. Mealy, 851 F.2d 890, 907 (7th Cir.1988); United States v. Plisek, 657 F.2d 920, 924-25 (7th Cir.1981). Even had he not waived the issue, however, the evidence clearly supports the district court's inclusion of the eight kilograms for sentencing purposes. "[P]roof of sentencing factors under the Guidelines by a preponderance of the evidence satisfies due process." United States v. Ross, 905 F.2d 1050, 1054 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 172, 112 L.Ed.2d 136 (1990).
Count I of the indictment charged Macias with conspiracy to distribute and to possess with the intent to distribute eight kilograms of cocaine. Macias was convicted on Count I by a jury. Macias' conviction rested on overwhelming evidence presented at trial, including testimony by his partner Enriquez Perez, the narcotics agent who participated in the transaction, and five surveillance agents, as well as telephone records confirming numerous contacts between Macias and Perez at critical points in the transaction.
The evidence showed that Perez arranged to sell eight kilograms of cocaine to a buyer whom the informant claimed to represent, that Perez thereafter telephoned his regular supplier of cocaine, the defendant Macias, who agreed to supply the cocaine on this occasion, and that Perez then telephoned the informant to confirm that the deal was on. The next afternoon, Macias brought Perez to the parked car containing five kilograms of cocaine. Perez removed one kilogram and delivered it to the narcotics agent, telling him that he had four other kilograms to sell. Perez also told the narcotics agent that he could supply three additional kilograms by 5:00 that evening. Macias then delivered the keys to the car to Perez, and Perez and the agent went to pick up four kilograms of cocaine hidden in the car. Based on this evidence, Judge Nordberg was fully justified in concluding that Macias and Perez conspired to supply a total of eight kilograms of cocaine to the undercover narcotics agent.
Contrary to Macias' assertion, the fact that fewer than eight kilograms were ultimately delivered to the undercover buyer does not undermine Macias' sentence. Judge Nordberg correctly calculated Macias' sentence based on the quantity of cocaine that Macias and Perez negotiated to sell--not the quantity of cocaine actually delivered. United States v. Buggs, 904 F.2d 1070, 1078 (7th Cir.1990). Citing Sec. 2D1.4 of the Guidelines and Application Note 1 to that section, this court held that where the defendant "negotiated to sell more than he actually sold, the district court was correct in basing its calculation on the amount negotiated." Id. at 1078. 2
As a result of Macias' conspiracy conviction, Judge Nordberg properly looked to Sec. 2D1.4(a) of the Guidelines (Attempt and Conspiracies) in determining the amount of cocaine includable in a sentencing determination for such a conviction. Section 2D1.4(a) states: "If a defendant is convicted of a conspiracy or an attempt to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy or attempt had been completed." 3
The evidence, recited above, clearly supports the precondition that Macias have the wherewithal to supply the remaining amount of cocaine in satisfaction of the conspiracy's objective. The judge had sufficient evidence to believe that Macias had every intention and the means of following through with the conspiracy.
Macias also asserts that the district court failed to take proper account of mitigating factors which he believes would have justified a downward departure from the Guideline's recommended sentence. Macias believes, in light of these mitigating circumstances, that the district court should have applied the minimum sentence provided in 21 U.S.C. Sec. 841(b)(1)(A)(ii)(II) (), instead of the Guidelines minimum of 151 months.
The transcript of Macias' sentencing hearing reveals that the district court made...
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