U.S. v. Bacallao, 98-1443

• Decision Date: 24 July 1998
• Docket Number: No. 98-1443,98-1443
• Citation: 149 F.3d 717
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eligio BACALLAO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 717

149 F.3d 717

UNITED STATES of America, Plaintiff-Appellee, v. Eligio BACALLAO, Defendant-Appellant.

No. 98-1443.

United States Court of Appeals, Seventh Circuit.

Argued June 10, 1998.

Decided July 24, 1998.

Daniel P. Bach (argued), Peggy A. Lautenschlager, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

John P. Koberstein (argued), Madison, WI, for Defendant-Appellant.

Before ESCHBACH, EASTERBROOK and MANION, Circuit Judges.

MANION, Circuit Judge.

Eligio Bacallao pleaded guilty to one count of knowingly and intentionally possessing cocaine with the intent to distribute or dispense in violation of 21 U.S.C. § 841(a)(1). At sentencing, the district court found that Bacallao's relevant offense behavior involved 3.3 kilograms of cocaine and sentenced him to 168 months' imprisonment. Bacallao appeals his sentence on the grounds that the district court improperly attributed to him quantities of cocaine not part of the offense of conviction. Because we conclude that insufficient factual findings support the district court's conclusion that Bacallao's relevant conduct includes the respective purchases of one and two kilograms of cocaine, we vacate Bacallao's sentence and remand for resentencing.

I. Background

Beginning in 1996, the Sheriff's Department in Columbia County, Wisconsin and the Federal Bureau of Investigation jointly began investigating the narcotics dealings of Gale Saunders and Eligio Bacallao. Specifically, law enforcement officials believed that Bacallao was storing cocaine at Saunders' paper business in Fall River, Wisconsin. On June 4, 1997, police officers watched Roberto Valdes, with Bacallao as his passenger, drive away from Saunders' business. Police officers stopped the vehicle and asked the two men to exit the car, but Bacallao and Valdes refused and sped away. A high-speed chase ensued, ending when the car went into a ditch. At that point Bacallao was seen throwing white powder out of the window. When the two suspects were apprehended, the police found 75.1 grams of cocaine that remained in the package Bacallao had thrown out the window. A subsequent search of Saunders' business revealed 258.6 grams of cocaine.

The government charged Bacallao with one count of knowing and intentional possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). A superseding indictment against Bacallao added a charge of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The conspiracy was alleged to have occurred from on or about August 1995 to June 4, 1997. Bacallao pleaded guilty to possession with intent to distribute cocaine, and the government dismissed the conspiracy charge without prejudice.

Gale Saunders pleaded guilty to possession of cocaine with the intent to distribute and to the unlawful possession of a firearm and agreed to cooperate with the authorities. In an interview with FBI Special Agent Steven Paulson, Saunders recounted that he routinely allowed Bacallao to store cocaine at his place of business--cocaine that Bacallao would pick up in small quantities, presumably for distribution. Saunders also said that in 1996, Bacallao asked him to arrange the purchase of a kilogram of cocaine through a man named Jim Warren. Saunders successfully arranged the purchase and delivered the kilogram of cocaine to Bacallao.

Also in connection with the Bacallao case, Agent Paulson interviewed Roberto Almaguer, a person believed to be associated with Bacallao in the drug business. Almaguer told Paulson that in late 1996, Bacallao offered him $2000 to go to Chicago and pick up two kilograms of cocaine from a woman named Lydia. Almaguer agreed, retrieved the cocaine, and, as instructed by Bacallao, delivered half of it to a man named Eddie Rodriguez. Almaguer then delivered the remaining kilogram to Bacallao.

The presentence investigation report attributed to Bacallao the following drug amounts: the 75.1 grams found in or near the car; the 258.6 grams found at Saunders' place of business; the kilogram Saunders arranged to purchase for Bacallao; and the two kilograms Almaguer picked up on Bacallao's behalf. These separate amounts total 3,333.7 grams of cocaine. Based on this quantity, the PSI recommended a base offense level of 28, plus a two-point enhancement for obstruction of justice.

At sentencing, the district court found that a preponderance of the evidence supported the government's contention that Bacallao was involved with 3.3 kilograms of cocaine. The district court did not make any explicit findings, however, as to how the cocaine other than the 75.1 grams found in or near Bacallao's car constituted relevant conduct. The district court then sentenced Bacallao to 168 months' imprisonment.

On appeal, Bacallao argues that the cocaine other than the 75.1 grams found in or near his car should not have been used to calculate his sentence because the other quantities of drugs were not "part of the same course of conduct or common scheme or plan," as required by U.S.S.G. § 1B1.3(a)(2). ¹

II. Analysis

"A district court's calculation of the quantity of drugs involved in an offense is a finding of fact to be reversed only for clear error." United States v. McClinton, 135 F.3d 1178, 1192 (7th Cir.1998), petition for cert. filed (May 6, 1998). In calculating a defendant's base offense level under the Sentencing Guidelines, "the sentencing court must consider types and quantities of drugs not specified in the counts of conviction but that were 'part of the same course of conduct or common scheme or plan' as the convicted offenses." United States v. Beler, 20 F.3d 1428, 1431 (7th Cir.1994) (citations omitted) (quoting U.S.S.G. § 1B1.3(a)(2)); United States v. Acosta, 85 F.3d 275, 279 (7th Cir.1996). This "relevant conduct" or "aggregation rule" permits sentencing courts to consider quantities of drugs not specified in the counts of conviction, provided "the unconvicted activities bore the necessary relation to the convicted offense." United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.1991). Two or more offenses are part of a common scheme or plan if they are connected by at least one common factor, such as "common victims, common accomplices, common purpose, or similar modus operandi." U.S.S.G. § 1B1.3(a)(2), Application Note 9. Offenses are part of the same course of conduct if they are "part of a single episode, spree, or ongoing series of offenses." Id. In assessing whether offenses are part of the same course of conduct, courts looked to "a strong relationship between the uncharged conduct and the convicted offense, focusing on whether the government has demonstrated a significant 'similarity, regularity, and temporal proximity.' " Acosta, 85 F.3d at 281 (citations omitted). Moreover, "section 1B1.3(a)(2) must not be read to encompass any offense that is similar in kind to the offense of conviction but that does not bear the required relationship to that offense." United States v. Patel, 131 F.3d 1195, 1204 (7th Cir.1997).

This court has ruled that when a district court, for purposes of calculating a defendant's base offense level, aggregates drug quantities arising from uncharged or unconvicted relevant conduct, the court should "explicitly state and support, either at the sentencing hearing or (preferably) in a written statement of reasons, its finding that the unconvicted activities bore the necessary relation to the convicted offense." Duarte, 950 F.2d at 1263; see also Acosta, 85 F.3d at 280. However, where it is clear that the district court took into consideration and adopted the facts contained in the presentence report, as well as the government's reasoning concerning those facts, we have upheld the court's decision to handle the uncharged conduct as relevant conduct, despite the lack of express findings. Acosta, 85 F.3d at 280. In this case, although the district court judge did not make any express findings of relevant conduct, she stated at the sentencing hearing that she was adopting the guideline calculations contained in the PSI, "taking into account only those acts and omissions [she found] were part of the same course of conduct or common scheme as the offense of conviction." From this statement, we may infer that the district court adopted the facts contained in the PSI and the government's reasoning concerning these facts.

Bacallao first challenges the district court's inclusion of the one kilogram of cocaine Saunders arranged to purchase on Bacallao's behalf. Bacallao contends that there is no similarity, regularity, or temporal proximity between this transaction and the charged offense. ² In fact, the details regarding this transaction are few and come exclusively from Saunders via Agent Paulson. According to Paulson, Saunders told him that on two separate occasions, Bacallao asked him (Saunders) to obtain cocaine from a contact Saunders had in Texas. The first occasion, which took place sometime in 1996, yielded the kilogram of cocaine at issue. The second occasion, in which Bacallao gave Saunders $30,000 for two kilograms of cocaine, was unsuccessful and led to an altercation between Bacallao and the Texas contact,...