930 F.2d 567 (7th Cir. 1991), 90-1208, United States v. Macias

Docket Nº:90-1208.
Citation:930 F.2d 567
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ignacio MACIAS, Defendant-Appellant.
Case Date:April 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 567

930 F.2d 567 (7th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ignacio MACIAS, Defendant-Appellant.

No. 90-1208.

United States Court of Appeals, Seventh Circuit

April 18, 1991

Argued Nov. 2, 1990.

Rehearing Denied May 28, 1991.

Page 568

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.

MANION, Circuit Judge.

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.

I.

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

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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.

II.

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...

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