U.S. v. Ferra, 91-1584

• Decision Date: 19 November 1991
• Docket Number: No. 91-1584,91-1584
• Citation: 948 F.2d 352
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jaime L. FERRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 352

948 F.2d 352

UNITED STATES of America, Plaintiff-Appellee, v. Jaime L. FERRA, Defendant-Appellant.

No. 91-1584.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 17, 1991.

Decided Nov. 19, 1991.

James L. Santelle, Maxine A. White, Chris R. Larsen (argued), Asst. U.S. Attys., Milwaukee, Wis., for plaintiff-appellee.

Julius L. Echeles (argued), Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Jaime Ferra, a fence who paid for his merchandise with cocaine, received 120 months' imprisonment. After remand for exploration of three subjects, 900 F.2d 1057 (1990), the district court reentered the 120-month sentence, although on substantially different reasoning.

1. The record on the first appeal revealed a conflict between Detective Leger's application for a search warrant and Sergeant Flores' testimony at trial. The warrant issued on Leger's representation that his reliable informant thrice bought cocaine from Ferra, who said there was plenty of cocaine left. Flores testified at trial that he visited Ferra once in the company of "Nicky", a person of unknown reliability who asserted that he had obtained cocaine from Ferra on other occasions.

On remand Leger testified that his "confidential informant" was none other than Flores, described thus to protect his identity while the investigation continued. The three-visit business is untrue, but the district court found that it was a confabulation of what Flores told Leger about his own activities with what Flores told Leger he had learned from Nicky. The district court found that Leger's errors were negligent rather than deliberate. More: Even deliberately inaccurate representations do not invalidate a warrant if the truthful statements establish probable cause. United States v. Danovaro, 877 F.2d 583, 587 (7th Cir.1989); cf. Franks v. Delaware, 438 U.S. 154, 171-72 & n. 8, 98 S.Ct. 2674, 2684-85 & n. 8, 57 L.Ed.2d 667 (1978). What Flores learned during his single visit establishes probable cause for a search. Had Leger accurately identified Flores as the "informant" and omitted everything else, a warrant would have been forthcoming. The district court therefore properly denied the motion to suppress.

2. Israel Salva testified as Ferra's co-conspirator, which allowed the use of testimony that otherwise would be hearsay, yet the district judge did not find that Salva was indeed a conspirator. On remand the court made that finding, which is not clearly erroneous. The picture is complicated because Salva began cooperating with the police. The judge ruled that he ceased being a conspirator at that point, see 900 F.2d at 1059 and United States v. Patel, 879 F.2d 292 (7th Cir.1989), but that statements after Salva changed sides could be admitted against Ferra as adoptive admissions. Ferra has not challenged that decision on appeal.

3. Sentencing is the principal issue on this appeal, as it was the first time around. The district court initially computed Ferra's range under the sentencing guidelines at 41-51 months but imposed a sentence of 120 months, reasoning that Ferra's status as a fence paying in cocaine justified an upward departure. We reversed that decision, holding that the district court must justify the extent of any departure using the structure of the guidelines, and that in particular a court may not impose a greater sentence by departing than it could have imposed had all of the additional conduct been charged expressly in the indictment. 900 F.2d at 1061-64. We pointed out, however, that Ferra's guideline range might have been computed improperly, for it was based on the amount of cocaine mentioned in the indictment (5 1/2 ounces) but should have been based on all cocaine sold during the course of Ferra's scheme. Id. at 1063, relying on U.S.S.G. § 1B1.3(a)(2).

On remand the district court determined that Ferra's course of conduct included the sale of more than 500 grams of cocaine. This, coupled with two levels for a managerial role, see U.S.S.G. § 3B1.1(c), increased Ferra's guideline range so that 120 months was no longer a departure. The court re-imposed the 120-month sentence. The managerial enhancement is not clearly erroneous; the court could find that Ferra "managed" a stable of thieves by requesting them to supply him with specific merchandise. Although the court could have found that the burglars were independent entrepreneurs rather than Ferra's minions, we do not disturb decisions that could go either way. (Lest there be doubt, however, we reject the prosecutor's argument that an enhancement under § 3B1.1(c) is proper just because a fence, by offering to buy goods, makes burglary more profitable. The guidelines refer to a managerial role; the buyer in an ordinary market transaction is not a "manag...