U.S. v. Cantero, s. 92-1277

• Decision Date: 14 June 1993
• Docket Number: Nos. 92-1277,s. 92-1277
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alejandro CANTERO, also known as Alex Cantero and Salvador Arteaga-Bernal, Defendants-Appellants. & 92-1278.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1407

995 F.2d 1407

UNITED STATES of America, Plaintiff-Appellee, v. Alejandro CANTERO, also known as Alex Cantero and Salvador Arteaga-Bernal, Defendants-Appellants.

Nos. 92-1277 & 92-1278.

United States Court of Appeals Seventh Circuit.

Argued Jan. 27, 1993.

Decided June 14, 1993.

Robert Michaels (argued), Office of the U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Attys., Criminal Receiving, Appellate Div., Chicago, IL, for U.S.

Stephen K. Larmore (argued), Skokie, IL, for Alejandro Cantero.

H. Elizabeth Kelley (argued), Oak Forest, IL, for Salvador Arteaga-Bernal.

Before COFFEY and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

COFFEY, Circuit Judge.

On July 30, 1991, Salvador Arteaga-Bernal and Alejandro Cantero pled guilty to violating 21 U.S.C. § 846 for conspiring to knowingly and intentionally possess with intent to distribute approximately 1,595 pounds of marijuana. The district court sentenced Bernal to ninety-five months of confinement with five years supervised release to follow. Alejandro Cantero was sentenced to seventy-eight months and five years supervised release. Cantero and Bernal then filed separate notices of appeal with this court on January 21, 1992 and January 22, 1992, respectively. ¹

I. BACKGROUND

Beginning in January 1989, Salvador Arteaga-Bernal ("Bernal") and Adam Cantero ("Adam") agreed that Bernal would deliver shipments of marijuana from his home in California to Adam in Chicago, Illinois. To accomplish their plan, Bernal purchased a delivery car that contained several hidden compartments in which the marijuana was kept during shipment and hired Harold Raab ("Raab") to drive the car.

The procedure for a typical delivery from California to Illinois was as follows: Bernal would load the marijuana into the secret compartments of the car at his home in California and then drive it across town to Raab who was to drive the car to Illinois. Before Raab would depart for Illinois, Bernal would direct him to telephone Adam in Chicago for instructions regarding what to do when he arrived with the shipment in Illinois. Raab would then drive the car to Adam's home in Chicago where Adam would unload, weigh and repackage the marijuana. Adam would in turn repack the hidden compartments in the delivery vehicle with cash as a payment for Bernal and Raab would return to California. ² Upon returning to California, Raab would transport the car and the money to Bernal who would pay Raab $1,000 in cash for his services.

After the initial delivery in January 1989, the operation underwent a few procedural changes. First, Adam, rather than Bernal, took responsibility for paying Raab. However, it was understood that Adam was compensating Raab on Bernal's behalf. Second, during 1989, Bernal transferred title of the delivery car to Raab. And finally, in late 1990, Adam informed Raab that he would also be making deliveries to his brother's home, Alejandro Cantero ("Alejandro"), in Chicago, Illinois.

Between 1989 and 1991, ten deliveries of marijuana were made: five in 1989, two in 1990, and three within the first three months of 1991. Overall, about 1,500 pounds of marijuana were delivered: 600 pounds in 1989, 300 pounds in 1990, and 600 pounds in 1991. In each instance, Bernal loaded the delivery car and initiated contact with Raab, the courier, who in turn transported the shipment to Illinois and returned to California with Adam's payment.

In March, 1991, Bernal purchased a second delivery car in order to increase the quantity of his shipments. Bernal hired Daniel Ochs ("Ochs") as the driver of the second car. On March 18, 1991, Raab and Ochs were transporting a shipment of marijuana in the two delivery cars (traveling in tandem) when they were stopped by the Missouri Highway Patrol. They consented to the officers' search of their vehicles, who in turn discovered a total of 300 pounds of marijuana. After questioning by agents from the Drug Enforcement Agency and Missouri law enforcement officers, both Raab and Ochs agreed to cooperate with the DEA. Under the DEA's direction and supervision, Raab made two monitored phone calls to Adam in Chicago, Illinois. During the first call, Raab explained to Adam that he and Ochs were having car problems, at which time Adam told him to do his best and to stay in touch. During the second phone call, Raab informed Adam that Ochs' car would be unable to proceed and that he was going to put all the marijuana into his car. Adam agreed but instructed Raab to deliver the shipment to his home rather than the original destination, Alejandro's home. Adam notified Bernal of the problems and thereafter Bernal decided to fly to Chicago from California. After taking one of the packages of marijuana as evidence, DEA agents instructed Raab to complete the delivery.

While still being monitored by federal agents, Raab arrived at Adam's home on March 20, 1991. Raab met with Adam and Bernal who then proceeded to unload the marijuana shipment. After counting the packages, Bernal noticed that one package was missing. During unloading Raab complained about the poor condition of his delivery car and, in response, Bernal promised to buy him a new truck for future deliveries. In addition, Adam told Raab that he would give him an extra $1,000 for his trouble. Shortly thereafter, DEA agents arrested Adam and Bernal at Adam's home.

Later that same day, Alejandro was arrested outside his house and consented to a search of his car. A bag containing two handguns and $17,000 in cash was found in the trunk of Alejandro's car. ³ The $17,000 was packaged in the same manner as the money Adam had sent back with Raab on prior occasions, i.e., in bundles of 100 twenty dollar bills that were folded over and secured with rubberbands. In addition, the $17,000 was close to the $20,000 amount Raab was to receive as payment for the March shipment. Alejandro and Adam offered conflicting explanations for the large sum of money. After Alejandro's arrest, he told the agents that the $17,000 was to be used to purchase a vehicle for his brother's awning business. Adam, on the other hand, never mentioned the purchase of a new vehicle for his business. Rather, he said he was hiding the money from his wife for emergency purposes. Later, Alejandro changed his story and stated that $12,000 of the $17,000 was money Adam had given to him to keep from Adam's wife and that the remaining $5,000 was money he had saved to buy a pickup truck.

II. ISSUES

Alejandro Cantero raises but one issue, whether the district court committed clear error in finding that he was subject to a two-level increase in his offense level under § 2D1.1(b)(1) of the Sentencing Guidelines for possessing a firearm during the commission of the offense. Bernal raises two issues: (1) whether the district court abused its discretion in declining to grant his request for an evidentiary hearing at sentencing; and (2) whether the district court committed clear error in applying the Sentencing Guidelines and finding that Bernal was a manager or supervisor of a criminal activity involving five or more participants.

III. DISCUSSION

A. Alejandro Cantero's Appeal

Alejandro appeals the district court's decision to enhance his base level offense two levels pursuant to U.S.S.G. § 2D1.1(b)(1) (enhancement for possession of a weapon) because the firearm was not in proximity to the drug offense. The district court's determination to enhance a sentence is a finding of fact which we will affirm unless it is clearly erroneous. United States v. Ewing, 979 F.2d 1234, 1238 (7th Cir.1992). For offenses involving drugs, section 2D1.1(b)(1) requires the sentencing court to increase the defendant's base offense level by two levels "[i]f a dangerous weapon (including a firearm) was possessed." With the two-level enhancement, Alejandro Cantero's applicable Guidelines range was 78-97 months, without the enhancement, the range would have been 63-78 months.

The commentary to § 2D1.1 notes:

"The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet."

U.S.S.G. § 2D1.1, comment. (n.3) (emphasis added). ⁴

This court has previously held that § 2D1.1(b)(1) does not require the defendant to actually possess the firearm. See, e.g., United States v. Rush, 890 F.2d 45, 52 (7th Cir.1989). Nor is the government required to show a connection between the weapon and the offense. United States v. Durrive, 902 F.2d 1221, 1232 (7th Cir.1990). All the government is required to show is that the weapon was possessed during the offense. Id.

Alejandro Cantero relies on Application Note 3, arguing it was "clearly improbable" that the firearm was connected to his drug offense. "Courts addressing the proper application of [Note 3] have generally limited its use to cases involving facts nearly identical to the hypothetical [unloaded rifle in closet]." United States v. Garcia, 925 F.2d 170, 173 (7th Cir.1991). For example, the Eighth Circuit applied the Note 3 "clearly improbable" exception in United States v. North, 900 F.2d 131 (8th Cir.1990). In North, the defendant operated a conspiracy to distribute drugs out of his home. When he was arrested, the officers seized an unloaded shotgun, an antique cap and ball pistol as well as an inoperable .22 rifle from his son's bedroom. The court denied the two-level firearm enhancement because (1) the cap and ball pistol was a nineteenth century model that required gun powder and lead balls making it quite cumbersome to fire; (2) the shotgun was an unloaded hunting gun belonging to the defendant's son; and (3) the .22 rifle was inoperable. Id. at 134-35. The court concluded that "it...