U.S. v. Herrera

• Decision Date: 06 July 1989
• Docket Number: No. 88-2935,88-2935
• Citation: 878 F.2d 997
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvaro HERRERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 997

878 F.2d 997

UNITED STATES of America, Plaintiff-Appellee, v. Alvaro HERRERA, Defendant-Appellant.

No. 88-2935.

United States Court of Appeals, Seventh Circuit.

Argued April 21, 1989.

Decided July 6, 1989.

Stephanie Uhlarik, James R. Ferguson, Asst. U.S. Attys., Chicago, Ill., for U.S., plaintiff-appellee.

William P. Murphy, Murphy, Peters, Davis & O'Brien, Chicago, Ill., for Alvaro Herrera.

Before CUDAHY, COFFEY and MANION, Circuit Judges.

MANION, Circuit Judge.

Defendant-appellant Alvaro Herrera pleaded guilty to two counts charging him with violating (1) 21 U.S.C. Sec. 841(a) and 18 U.S.C. Sec. 2 (possession of narcotics with intent to distribute); and (2) 18 U.S.C. Secs. 1952 and 2 (interstate travel in aid of a racketeering enterprise involving narcotics). He was sentenced to 136 months in prison to be followed by a four-year period of supervised release, and fined $17,500. He appeals, contending that the district court imposed an improper sentence. Because the district court correctly applied the sentencing guidelines to its factual findings, and because those findings were not clearly erroneous, we affirm.

I.

On February 11, 1988, Herrera and his wife arrived in Chicago's Union Station aboard Amtrak train number four from Los Angeles. Both originally are from Colombia. Herrera was 40; his wife was 22, and an illegal alien. Because the Herreras fit a "drug courier profile" (for reasons which are irrelevant here), special agents of the Drug Enforcement Administration ("DEA") approached them at the train station and asked to speak with them. The Herreras eventually consented to a search of their bags which revealed approximately $30,000 in cash and 4,988.5 grams of cocaine. Husband and wife were named in a two-count indictment. Count one charged them with knowingly and intentionally possessing with intent to distribute 4,988.5 grams of cocaine, 21 U.S.C. Sec. 841(a) and 18 U.S.C. Sec. 2. Count two charged the pair with interstate travel in aid of a racketeering enterprise involving narcotics, 18 U.S.C. Secs. 1952 and 2.

On May 20, 1988, the district court denied the Herreras' motion to suppress evidence which had been obtained during the train station search. In July 1988, Alvaro Herrera pleaded guilty to both counts contained in the indictment. His wife, however, pleaded guilty to a lesser charge contained in a superseding information, charging her with making a false statement of a material fact, 18 U.S.C. Sec. 1001, when she denied to the DEA agents at the train station that she was carrying narcotics.

Herrera's version of the offense (contained in the pre-sentence report) sought to minimize his involvement, characterizing his role in the offense as nothing more than an unwitting "mule." At the sentencing hearing the district court rejected Herrera's version as contrary to common sense and "inconsistent with ... the hard evidence...." Instead, the district court found that Herrera was "an organizer. He controlled or directed the behavior of his wife and was responsible for the movement of 4,988.5 grams of 96 percent pure cocaine. He was quite aware of the quantity of cocaine being transported." As an "organizer," Guidelines 3B1.1(c), Herrera's offense level was increased two levels (to level 32 from level 30 which was based on the amount of drugs he possessed, see Guidelines 2D1.1 (drug quantity table)). The court next increased his offense level to 34, based on its conclusion that Herrera had obstructed the administration of justice. Guidelines 3C1.1. Herrera's offense level was then decreased 2 levels to reflect his acceptance of responsibility, placing him finally at level 32. With a category "I" criminal history rating, the sentencing range was 121-151 months. Guidelines Ch. 5, Part A (sentencing table). The court sentenced Herrera to 136 months imprisonment, the "exact mid-point" of the guideline range.

Mrs. Herrera's sentence was considerably lighter. The court found that she "was not a prime mover" in transporting the cocaine, and that she had been controlled by her husband. "[G]iven the relationship with her husband and [their] age disparity," the court concluded that Mrs. Herrera was "influenced by [Alvaro's] desires and his requests." She was sentenced to six months imprisonment. (Mrs. Herrera does not appeal her sentence; and Herrera does not complain of the disparity in the two sentences.)

Herrera appeals the district court's determination that he was an "organizer." He contends that the quantity and quality of drugs were wrongly considered in determining his aggravating role in the offense, and that no facts support the district court's conclusion that he controlled or directed his wife's behavior.

II.

A.

Sentencing under the guidelines is based on two factors: the offense level and the defendant's criminal history. United States v. Mejia-Orosco, 867 F.2d 216, 219 (5th Cir.1989), rehearing denied, 868 F.2d 807 (5th Cir.1989) (per curiam). For offenses involving drugs, the guidelines contain a drug quantity table which determines the appropriate offense level based on the quantity of the drugs involved in the particular offense. See Guidelines 2D1.1. (For 3.5-4.9 kilograms of cocaine, the amount possessed by the Herreras, the offense level under the Drug Quantity Table is 30.) The second factor in sentencing is the defendant's criminal history. This is determined separately from the offense level. Mejia-Orosco, 867 F.2d at 219. One of six different "criminal history" categories may be assigned to a defendant based upon a point scale. "Points are assigned to prior convictions depending upon the length of sentence and whether the instant offense was committed within two years of release from prison or while under any criminal sentence." Id. See also Guidelines 4A1.1. After determining the proper offense level and criminal history, a "sentencing range is calculated from a table by cross-referencing the offense level with the defendant's criminal history. The table sets sentencing ranges in which the maximum sentence exceeds the minimum by the greater of 6 months or 25%." Mejia-Orosco, 867 F.2d at 219; see also Guidelines Ch. 5, Part A (sentencing table).

An offense level may be increased under 3B1.1 of the guidelines as it was here, "[w]hen an offense is committed by more than one participant" and if the defendant played an aggravating role in the offense. Guidelines 3B1.1, and Introductory Commentary. The Sentencing Commission explained that 3B1.1 provides "a range of adjustments to increase the offense level based upon the size of the criminal organization (i.e., the number of participants) and the degree to which the defendant was responsible for committing the offense." Guidelines 3B1.1. It was "included primarily because of concerns about relative responsibility." Id. See also W. Wilkins, Jr., Plea Negotiations, Acceptance of Responsibility, Role of the Offender, and Departures: Policy Decisions In The Promulgation of Federal Sentencing Guidelines, 23 Wake Forest L.Rev. 181, 192-93 (1988). For an "organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive," a 4-level increase in the offense level is warranted. Guidelines 3B1.1(a). "If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive," a 3-level increase is warranted. Guidelines 3B1.1(b). Finally, "[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in [3B1.1](a) or [3B1.1](b)," a 2-level increase is warranted. Guidelines 3B1.1(c).

B.

In reviewing sentences imposed under the guidelines, Sec. 3742(d) of the guidelines statute provided (before November 18, 1988) that the "court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witness, and shall accept the findings of fact of the district court unless they are clearly erroneous." Section 3742(d) was amended and renumbered Sec. 3742(e) in November 1988 by the Anti-Drug Abuse Act of 1988, P.L. 100-690, reprinted in 1988 U.S.Code Cong. & Admin.News at 102 stat. 4181, 4417; see also Mejia-Orosco, 868 F.2d at 808, by adding to the just-quoted phrase "and shall give due deference to the district court's application of the guidelines to the facts." Id. The district court's sentence thus will be affirmed if it results from a proper application of the sentencing guidelines to facts not found to be clearly erroneous. Mejia-Orosco, 867 F.2d at 219; United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.1989). A finding of fact is clearly erroneous only if, after reviewing the entire evidence, we are left "with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-42, 92 L.Ed. 746 (1948). A reviewing court's function is "not to decide factual issues de novo." Anderson, 470 U.S. at 573, 105 S.Ct. at 1511. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id. at 574, 105 S.Ct. at 1511 (citation omitted).

Whether Herrera was an "organizer" within the meaning of 3B1.1(c) of the guidelines was a fact question for the district judge to resolve. Mejia-Orosco, 867 F.2d at 220; cf. U.S. v. Sarasti, 869 F.2d at 807 (whether defendant was a "minor" as opposed to "minimal" participant, Guidelines 3B1.2(a) and (b), is a fact question); United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989) (whether defendant was a "minor" or "minimal" participant is a factual finding). Determining whether a defendant played an "organizer" role requires district judges to draw inferences "from a variety of data, including the information in the...