U.S. v. Castillo, 02-3584.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation406 F.3d 806
Docket NumberNo. 02-4344.,No. 02-3584.,02-3584.,02-4344.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Pedro L. CASTILLO and Frank Rodriguez, Defendants-Appellants.
Decision Date03 May 2005
406 F.3d 806
UNITED STATES of America, Plaintiff-Appellee,
Pedro L. CASTILLO and Frank Rodriguez, Defendants-Appellants.
No. 02-3584.
No. 02-4344.
United States Court of Appeals, Seventh Circuit.
Argued March 30, 2004.
Decided May 3, 2005.

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Lisa M. Noller (Argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Hope Lefeber (Argued), Philadelphia, PA, Richard H. Parsons, Andrew J. McGowan, Office of the Federal Public Defender, Peoria, IL, for Defendants-Appellants.

Before POSNER, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

In October of 2001, a federal grand jury returned an indictment charging Pedro Castillo, Frank Rodriguez and Alfredo Barrera1 with violations of various federal narcotics and firearms statutes. Mr. Rodriguez pleaded guilty to one count of conspiring to distribute more than 50 grams of crack cocaine from May of 2001 to June 20, 2001. See 21 U.S.C. § 846; 18 U.S.C. § 2. Mr. Castillo was tried by jury and found guilty of the same count as Mr. Rodriguez plus four additional counts, including one count of possessing a firearm in furtherance of a drug trafficking offense. See 18 U.S.C. § 924(c)(1)(A). On appeal, Mr. Castillo challenges his conviction. Mr. Castillo and Mr. Rodriguez challenge the portion of their respective written judgments ordering them to repay $3,000 in "buy money" as restitution. They also challenge their respective sentences. We held this case in abeyance pending the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons set forth in this opinion, we now affirm Mr. Castillo's conviction. We reverse and remand the orders regarding repayment. In light of Booker, 125 S.Ct. 738, while retaining jurisdiction, we remand this case to the district court in accordance with our court's decision in United States v. Paladino, 401 F.3d 471 (7th Cir.2005).

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A. Facts

1. June 4, 2001 Transaction

In March or April of 2001, a confidential informant ("Cl") contacted Mr. Rodriguez, who had been introduced to the Cl as a drug supplier. The two met, and Mr. Rodriguez agreed to supply the Cl with samples of illegal drugs. On June 4, 2001, the Cl ran into Mr. Rodriguez at a restaurant; Mr. Rodriguez agreed to give the Cl samples of powder cocaine and marijuana that night. The two met later, and their meeting was recorded by the Federal Bureau of Investigation ("FBI"). At this meeting, Mr. Rodriguez gave the Cl two small bags containing samples of cocaine and marijuana.

2. June 7, 2001 Transaction

Subsequently, Mr. Rodriguez agreed to provide the Cl with three ounces of crack cocaine in exchange for a payment of $3,000. Mr. Rodriguez arranged to obtain the three ounces of crack cocaine requested by the Cl from Mr. Castillo. On June 7, 2001, the Cl met Mr. Rodriguez, and the two drove to a basement apartment to obtain the crack. This transaction also was monitored and recorded by the FBI.

When they arrived and pulled into the garage adjacent to the basement apartment, Mr. Castillo was there. After introductions and small talk, Mr. Castillo told Mr. Rodriguez to search the Cl. Mr. Castillo then "stood right by the workbench[,] opened up a drawer" and pulled out three baggies containing "three ounces of powder form cocaine." Tr. at 131. Mr. Castillo informed the Cl that he had been preoccupied and unable to cook the cocaine to make crack ahead of time, but he invited the Cl to stay while he cooked it. Mr. Castillo, Mr. Rodriguez and the Cl walked from the garage to the kitchen of the basement apartment. Over the next several hours, Mr. Castillo cooked the cocaine into crack, explaining the cooking process to the Cl. Except for using the bathroom, which was a "short way down the hallway," Tr. at 251, and maybe "going out to receive a phone call," Tr. at 149, the Cl remained in the kitchen with Mr. Castillo. Mr. Rodriguez and Barrera were in and out of the kitchen during this time.

During the cooking, which was done in different batches, Mr. Castillo and the Cl discussed the Cl's buying more crack cocaine from Mr. Castillo in the near future. Also during this time period, an unknown individual came to the door. The Cl observed Mr. Castillo walk down the hallway, return with "[d]ime bags of cocaine" and hand them to the individual at the door. Tr. at 155. When Mr. Castillo returned to the kitchen to continue cooking, he told the Cl: "Yeah, but you easy, you got three. The man that's coming though, he just bought six," apparently referring to ounces. Tr. at 165. Mr. Castillo also told the Cl about other customers: "I got, I got four people waiting next to you. You know what I'm saying? So once I'm done with you, I gotta make a phone call. They'll come through...." Tr. at 164-65. After Mr. Castillo was finished cooking, he gave the Cl a total of approximately 72.3 grams of crack cocaine; the Cl, in return, gave Castillo $3,000 in government funds, which Castillo put in the freezer.

3. June 20, 2001 Transaction and Arrest

On June 18, 2001, the Cl spoke to Mr. Castillo by phone. In this recorded conversation, Mr. Castillo agreed to provide the Cl with seven ounces of crack cocaine in exchange for $7,000. The Cl received $7,000 in government funds and a recording device. Then, on or about June 20, 2001, Mr. Castillo, Barrera and the Cl met

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at a local restaurant. They discussed "the deal and future deals as well." Tr. at 184. Mr. Castillo then told the Cl to come to his (Castillo's) car; Castillo got in the driver's seat, the Cl got in the front passenger's seat and Barrera got in the back seat. Mr. Castillo pointed to a McDonald's bag, which the Cl opened. The bag contained approximately 162.3 grams of crack cocaine. The Cl told Mr. Castillo that the money for the crack was in his car, and, while the Cl was getting out to go to his car, Castillo instructed the Cl to follow him. After the Cl, in his car, followed Mr. Castillo for some time, Castillo waved for the Cl to pull over, and they had a discussion regarding counting the money. At that point, the government agents converged, and Mr. Castillo and Barrera were arrested. The 162.3 grams of crack were recovered, and, as Barrera exited the car, agents observed and recovered a handgun near Barrera's feet.

4. June 20, 2001 Search of the Basement Apartment

Later that day, agents searched the basement apartment where the June 7, 2001 transaction had taken place. In the ceiling area of a rear storage closet off a bedroom down the hallway, agents recovered "3.8 grams of a mixture containing cocaine base, commonly known as crack," and "18.7 grams of mixtures containing cocaine" on a ceiling joist. Tr. at 315-16. The Government's drug trafficking expert testified that "3.8 grams would border either user or distribution quantity," Tr. at 417, and 18.7 grams of cocaine "would be in the neighborhood of a distribution quantity of cocaine," Tr. at 401. In that same storage area, approximately four to five feet from the drugs, the agents recovered a Mossburg shotgun with a sawed-off barrel. The shotgun had been modified to accommodate a pistol grip, and a pistol grip was recovered next to the shotgun. Agent Walker explained: "The pistol grip has been made to fit onto that gun. The bolt that you see coming out of the end of the shotgun does not appear to be adequate to secure that pistol grip on the shotgun." Tr. at 358. He further testified that he and some other agents "briefly looked at it, and it seemed like ... you would need maybe a different type of bolt." Tr. at 359.

Also recovered near the shotgun was a white sock that contained four shotgun shells. Mr. Castillo's fingerprints were not recovered on the shotgun shells or the shotgun, but the Government's fingerprint expert testified that guns and ammunition are not very receptive surfaces for leaving fingerprints. Tr. at 368. A drug trafficking expert explained that it was not unusual for somebody involved in drug trafficking to have an unloaded or loaded weapon "because drug traffickers commonly utilize firearms or weapons to protect their drugs and protect their drug proceeds, the amount of money that they have at their location where they're selling drugs from, from other drug traffickers or gang members who may want to rob them or break in and steal their drugs or drug money. So it's basically used as protection." Tr. at 415-16.

"Up towards the door area of this back closet area," the agents also recovered a box. Tr. at 291-92. This box contained a variety of drug paraphernalia, including weights and scales, razors, plastic baggies, a "type of cutting agent that would be used to put into drugs to make it greater in quantity," Tr. at 292, and a "drug ledger," Tr. at 412. The drug trafficking expert testified that these are tools of the drug trade. The agents also recovered from the apartment a number of pieces of mail, documents and photographs indicating that the apartment was in fact Mr. Castillo's home. For example, the address label on one piece of mail read: "Pedro Castillo,

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3328 West 65th Place, house basement, Chicago, Illinois 60629." Tr. at 324.

B. District Court Proceedings

In October of 2001, a grand jury charged Mr. Castillo and Mr. Rodriguez (and Barrera) with a number of violations of federal narcotics and firearms statutes. Specifically, Mr. Castillo and Mr. Rodriguez both were charged with conspiring to distribute more than 50 grams of crack cocaine from May 2001 to June 20, 2001 (Count I), see 21 U.S.C. § 846; 18 U.S.C. § 2, and distributing more than 50 grams of crack cocaine on June 7, 2001 (Count II), see 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2.

Mr. Castillo also was charged individually with four more counts. Counts III and IV were based on the crack cocaine and the handgun recovered in Mr. Castillo's car during the June 20, 2001 transaction and arrest. These counts...

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