U.S. v. Gallo-Vasquez, 01-2708.

• Decision Date: 27 March 2002
• Docket Number: No. 01-2937.,No. 01-2708.,01-2708.,01-2937.
• Citation: 284 F.3d 780
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Carlos GALLO-VASQUEZ, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

284 F.3d 780

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Carlos GALLO-VASQUEZ, Defendant-Appellant, Cross-Appellee.

No. 01-2708.

No. 01-2937.

United States Court of Appeals, Seventh Circuit.

Argued March 1, 2002.

Decided March 27, 2002.

Barry Rand Elden, Chief of Appeals, Sean M. Berkowitz (argued), Office of the U.S. Attorney, Criminal Division, Chicago, IL, for plaintiff-appellee.

Eric M. Schwing (argued), Office of the Federal Public Defender, Springfield, IL, Richard H. Parsons, Office of the Federal Public Defender, Peoria, IL, for defendant-appellant.

Before FLAUM, Chief Judge, and BAUER and WOOD, Jr., Circuit Judges.

FLAUM, Chief Judge.

The appellant, Carlos Gallo-Vasquez, was convicted of offenses surrounding his participation in drug trafficking. The district court sentenced Gallo-Vasquez to prison for 135 months, with five years of supervised release. The sentence that the district court imposed included an enhancement for the alleged "supervisory role" that Gallo-Vasquez played in the execution of a drug transaction and a downward departure based upon the fact that Gallo-Vasquez was a deportable alien. Gallo-Vasquez has filed the instant appeal contesting the propriety of the district court's enhancement of his sentence and the government has filed a cross-appeal challenging the district court's downward departure. For the reasons stated below we affirm in part and reverse and remand in part the decisions of the district court.

I. BACKGROUND

In early August of 2000, United States customs officials at the border in Texas detected a vehicle attempting to enter the country carrying narcotics. That vehicle, a large truck, contained over four thousand sacks of charcoal. However, the sacks also contained significant amounts of marijuana — the total amount of which exceeded five thousand pounds. After an investigation, customs officials discerned that the truck was headed for Chicago. After learning the truck's destination, law enforcement officials attempted to set up a controlled delivery of the truck for August 8, 2000. On August 9, an undercover Chicago police officer drove the truck to the delivery address that was discovered during the course of the investigation. Upon arrival at this address, the undercover officer found that there was no one present to receive the shipment. Several phone calls were made and eventually the undercover officer was told to bring the truck to a warehouse located on Chicago's south side.

As the undercover officer approached the warehouse where the delivery was to be made, a female approached the truck and told him to park it in the rear. The undercover officer pulled his truck to the rear of the warehouse, where he was directed to pull in front of a loading dock. The officer then watched as six or seven Hispanic men began to unload the truck. The undercover officer was able to identify Gallo-Vasquez as he stood with another man observing the unloading of the sacks of charcoal. After several minutes had elapsed, the officer asked one of the men who had unloaded the truck to sign the bill of lading. Rather than sign the bill of lading himself, this man spoke to Gallo-Vasquez and another man. Gallo-Vasquez then signed the bill of lading with the name "Eduardo Flores." After receiving the signed document, the undercover officer entered his truck and drove from the loading dock.

Shortly after the undercover officer departed, law enforcement agents entered the warehouse and arrested eight individuals, including Gallo-Vasquez. From the eight individuals arrested, the government indicted only two: Gallo-Vasquez and Asael Sanchez. Sanchez ultimately pleaded guilty and agreed to testify at Gallo-Vasquez's trial. At Gallo-Vasquez's trial, Sanchez told the story of his involvement in the August 9 delivery. According to Sanchez, on August 9, he received $500 to help unload the truck driven by the undercover officer. Sanchez further testified that once the charcoal bags were unloaded, Gallo-Vasquez told him (and the others who had removed the cargo from the truck) to open the bags and separate the contents. While separating the smaller bags, Sanchez testified that he and others saw a package which they believed to contain drugs. Sanchez stated that he and the other individuals were then told that they would be given more money if they continued to work. Around this time, law enforcement officials entered the warehouse. When the officers entered the warehouse, the men unloading the truck attempted to flee.

After his trial, the jury convicted Gallo-Vasquez of possession of more than 1,000 kilograms of marijuana with intent to distribute. On June 26, 2001, the district court conducted a sentencing hearing at which it asked Gallo-Vasquez if he had reviewed the pre-sentence report ("PSR") that had been prepared in his case. Through his counsel, Gallo-Vasquez made an objection to certain facts contained in the PSR. Gallo-Vasquez also objected to certain "interpretations" that it contained. Sentencing Tr. at 4. Specifically, Gallo-Vasquez objected to the recommendation that his sentence be adjusted for his supervisory "role in the offense" under section 3B1.1 of the Sentencing Guidelines.¹ Id. In addition, Gallo-Vasquez requested a downward departure in his sentence because of his status as a deportable alien.

In imposing a sentence, the district court enhanced Gallo-Vasquez's sentence by three levels because it concluded that he undertook a supervisory role in the delivery of the drugs in question.² Lastly, the district court granted a four-level downward departure to Gallo-Vasquez because it concluded that, as a deportable alien, "he will have a worse situation than would other people of U.S. citizenship convicted of the exact same thing with the exact same history." Id. at 14. Ultimately, the district court sentenced Gallo-Vasquez to 135 months' imprisonment with a five-year period of supervised release.

Gallo-Vasquez filed the instant appeal claiming that the district court erred in enhancing his sentence because of his alleged supervisory role in the offense. According to Gallo-Vasquez, the district court did not find that there were five or more criminally culpable participants in the underlying criminal activity, as required by the sentencing guidelines. The government also cross-appeals, arguing that the district court committed legal error and abused its discretion in allowing for a downward departure in Gallo-Vasquez's sentence based upon Gallo-Vasquez's alien status.

II. DISCUSSION

We review the district court's findings of fact at sentencing (in this case with regard to whether Gallo-Vasquez acted as a manager or supervisor of others in criminal conduct) for clear error. See United States v. Young, 34 F.3d 500, 504 (7th Cir.1994). This court reviews a district court's downward departures from the Sentencing Guidelines for abuse of discretion. See United States v. Purchess, 107 F.3d 1261, 1270 (7th Cir.1997).

A. Enhancement for Supervisory Role

Gallo-Vasquez contends that the district court erred in enhancing his sentence for acting in a supervisory capacity during the August 9, 2000 drug transaction. In particular, Gallo-Vasquez claims that the district court did not adequately find that there were five other participants involved in the drug transaction. "The government must prove by a preponderance of the evidence that an enhancement is warranted." United States v. Scott, 245 F.3d 890, 912 (7th Cir.2001). Furthermore, for an enhancement made pursuant to the section 3B1.1(b) of the Sentencing Guidelines, the factual basis should be made clear on the record. See, e.g., United States v. Tai, 994 F.2d 1204, 1212 (7th Cir.1993).

While the district court did not furnish an exhaustive explanation of its decision to enhance Gallo-Vasquez's sentence for his supervisory role over five or more participants, we find that its findings are nonetheless adequate and do not amount to clear error. In the instant case, there was ample evidence presented at trial to support the district court's finding that Gallo-Vasquez acted as a supervisor of five people engaged in criminal activity. First, Asael Sanchez testified that when the bags of charcoal were unloaded from the targeted truck, Gallo-Vasquez ordered up to eight individuals to separate the contents of the bags. Asael Sanchez further testified that, upon seeing that the bags contained marijuana, he and several of the men...