U.S. v. Acosta

• Decision Date: 29 May 1996
• Docket Number: No. 95-2517,95-2517
• Citation: 85 F.3d 275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvador ACOSTA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 275

85 F.3d 275

UNITED STATES of America, Plaintiff-Appellee, v. Salvador ACOSTA, Defendant-Appellant.

No. 95-2517.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 15, 1996.

Decided May 29, 1996.

Rodney Cubbie, Steven Ingraham, argued, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Frank M. Tuerkheimer, argued, University of Wisconsin Law School, Madison, WI, for Defendant-Appellant.

Before KANNE, ROVNER, and DIANE P. WOOD, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Following a bench trial, Salvador Acosta ¹ was convicted of one count of possessing heroin with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Acosta was sentenced to 151 months in prison followed by three years of supervised release, and was fined $2,500. In calculating Acosta's base offense level, the district judge determined that, in addition to the 31.826 grams of heroin confiscated from Acosta's car and residence on the day of his arrest, Acosta was also responsible for participating in a series of transactions during which he delivered a total of approximately 7.5 kilograms of cocaine to a government informant. Acosta challenges his sentence on the grounds that the district court did not make an express finding that the cocaine transactions were relevant conduct under U.S.S.G. § 1B1.3(a)(2), that the court failed to explain why it rejected a lower estimate of the amount of cocaine Acosta had allegedly delivered to the informant, and that in any event the informant's testimony concerning the amounts of cocaine involved was internally inconsistent and therefore unreliable. Although we find no error in the district court's decision to treat the cocaine transactions as relevant conduct for purposes of sentencing, we nevertheless vacate Acosta's sentence and remand for reconsideration of the amount of cocaine to be attributed to him.

I. BACKGROUND

On the evening of December 17, 1994, members of the Milwaukee County Sheriff's Department stopped Acosta's car pursuant to a tip by government informant Carlos Johnson, who was Acosta's passenger at the time. A search of the car uncovered 1,449 packets of heroin containing a total of 29.586 grams of the drug. Each of the heroin packets was labeled "New York Express." On January 4, 1995, a federal grand jury returned a one-count indictment charging Acosta with possessing with intent to distribute heroin. Acosta waived his right to a jury trial, and a two-day bench trial resulted in his conviction. The district court then ordered the preparation of a presentence report and scheduled a sentencing hearing. The presentence report initially recommended that Acosta be held responsible for a total of 31.826 grams of heroin and 20 kilograms of cocaine, resulting in a base offense level of 34. Prior to the sentencing hearing, Acosta filed several objections to the presentence report, disputing both the inclusion of his alleged cocaine trafficking activities as relevant conduct under U.S.S.G. § 1B1.3(a)(2), and the amounts of cocaine attributed to him in those transactions. The government replied to Acosta's objections in a letter to the court, suggesting that only 7.5 kilograms of cocaine be attributed to Acosta, as this amount was a conservative estimate of the total quantity of cocaine Acosta had delivered to Johnson. The government's position as to the amount of cocaine attributable to Acosta was noted in a June 14, 1995 addendum to the presentence report. The addendum also contained the response of U.S. Probation Officer Bernadette M. Chesak, in which Chesak stated that she had no additional information to offer the court concerning the cocaine, and that the court would therefore need to resolve the issue of relevant conduct at sentencing.

A sentencing hearing was held on June 15, 1995. Turning to the question of relevant conduct, the district court considered Acosta's contention that the trial testimony of Johnson was "very ambiguous, very vague," that it failed to specify dates of transactions or total quantity of cocaine, and that the evidence as a whole failed to provide a sufficient basis for holding Acosta responsible for any amount of cocaine. (Sentencing Tr. at 6-7.) The government submitted that the fact of Acosta's cocaine dealing was amply corroborated by the statements of Carmen Andujar, Acosta's wife, who was questioned by police in conjunction with the search of Acosta's Milwaukee residence on the day of his arrest. (Sentencing Tr. at 8.) In those statements, Andujar admitted that she disposed of a quantity of cocaine when she heard that police were at her door, that she had seen Acosta with cocaine on a number of occasions, and that Acosta had told her that he was selling both heroin and cocaine. (Presentence Report at pp 21-23.) Andujar also stated that Acosta obtained both drugs from a source in New York City, that she went to New York several times with Acosta to pick up heroin and cocaine, and that she wired money at Acosta's behest to his drug source in New York on at least two occasions. (Presentence Report at pp 22-24.) In their search of Acosta's residence, police confiscated six Western Union money transfer receipts showing that Acosta had sent substantial sums of money from Milwaukee to New York. Police also seized a notebook that appeared to be a drug ledger, which Johnson subsequently identified as reflecting the money he owed Acosta for a number of packages of cocaine Acosta had provided to him for resale. (Presentence Report at pp 17-18.) A dust mask with cocaine residue, a digital scale, and 9.106 grams of cocaine, as well as a total of fifty-two packets of heroin, each bearing the stamp "New York Express," were also recovered from the residence. (Presentence Report at pp 14 & 16.)

In support of its position that a total quantity of 7.5 kilograms of cocaine should be attributed to Acosta for sentencing purposes, the government relied on the trial testimony of Johnson. Johnson testified that he began purchasing cocaine from Acosta in the early summer of 1994 and continued to do so until his arrest in November 1994, when he began cooperating with law enforcement authorities. Johnson stated that he had obtained cocaine from Acosta at least once per week during that period, and at times as frequently as every other day. He further testified that he had made between thirty and fifty purchases of cocaine from Acosta in 1994. To determine the total quantity involved, the district judge considered the following portion of the trial transcript of Johnson's testimony on direct examination, which the judge read into the record at the sentencing hearing:

Question: Okay. What is the greatest amount of cocaine that you obtained from Salvator Acosta?

Answer: Anywhere from I would say the max would be two and a half kilos.

The court: Are you talking about at one time?

Mr. Cubbie: I will clarify that, Judge.

Question: My question is at one time. I should have asked that way. What's the most you ever picked up from Salvator Acosta?

Answer: About two and a half kilos at the very most, max.

Question: What's the smallest amount of cocaine that you obtained from Salvator Acosta at one time?

Answer: Anywhere from a half ounce all the way up to a kilo of cocaine.

Question: Let me ask you a different way. What is the smallest amount--the smallest amount that you got from him at one time?

Answer: I would say nine ounces.

(Sentencing Tr. at 16.)

The district judge then determined that Johnson's testimony was generally credible, if lacking in precision, and that it constituted sufficient evidence to hold Acosta responsible for thirty deliveries of at least nine ounces of cocaine to Johnson, totaling approximately 7.5 kilograms of the drug. (Sentencing Tr. at 18-20.) With respect to whether Acosta's cocaine sales to Johnson were "relevant conduct" for purposes of applying U.S.S.G. § 1B1.3(a)(2), the judge noted that Johnson's testimony concerning the transactions was sufficiently corroborated by other evidence in the record to ensure its probable accuracy. He then adopted the factual findings in the presentence report pertaining to that evidence. (Sentencing Tr. at 18-20.) The judge did not, however, expressly state that Acosta's cocaine sales to Johnson were part of "the same course of conduct or common scheme or plan" (see U.S.S.G. § 1B1.3(a)(2)) as Acosta's heroin trafficking offense. Aggregating the amounts of drugs involved in Acosta's offense of conviction and the uncharged cocaine sales, the judge determined that a total drug quantity of 31.826 grams of heroin and 7.5 kilograms of cocaine was attributable to Acosta, corresponding to a base offense level of 32 under the Guidelines. The judge then added a two-level enhancement for obstruction of justice on the ground that Acosta had been untruthful with the court concerning his ability to speak and understand English. ² Acosta's total offense level was thus set at 34, with a criminal history category of I, yielding a sentencing range of 151 to 188 months. The judge imposed a sentence of 151 months in prison followed by three years of supervised release, and a fine of $2,500.

II. DISCUSSION

In calculating a defendant's base offense level under the Sentencing Guidelines, a district court is required to take into consideration not only the types and quantities of drugs specified in the offense of conviction, but also any drugs that were "part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2); see United States v. Howard, 80 F.3d 1194, 1202 (7th Cir.1996); United States v. Beler, 20 F.3d 1428, 1431 (7th Cir.1994); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.1991), cert. denied, 506 U.S. 859, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992). When a defendant in a drug distribution case is sentenced on the basis of uncharged conduct pursuant to section 1B1.3(a)(2), the government's...