U.S. v. Ortiz

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Williams
• Citation: U.S. v. Ortiz, 431 F.3d 1035, 2005 WL 3358920 (7th Cir. 2005)
• Decision Date: 12 December 2005
• Docket Number: No. 03-1471.,03-1471.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose ORTIZ, Defendant-Appellant.

431 F.3d 1035

UNITED STATES of America, Plaintiff-Appellee, v. Jose ORTIZ, Defendant-Appellant.

No. 03-1471.

United States Court of Appeals, Seventh Circuit.

Argued February 23, 2005.

Decided December 12, 2005.

COPYRIGHT MATERIAL OMITTED

Sharon Johnson (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Laura D. Cullison (argued), E. King Poor, Winston & Strawn, Chicago, IL, for Defendant-Appellant.

Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Jose Ortiz pled guilty to one count of distributing marijuana and two counts of distributing cocaine. At sentencing, the district court found that Ortiz's relevant conduct involved 100 kilograms of cocaine and sentenced him to 240 months imprisonment. Ortiz argues that the government witness's testimony was inconsistent and therefore unreliable. Although we find aspects of that testimony troubling, we decline to find it incredible as a matter of law. Ortiz also appeals his sentence on the grounds that the district court improperly attributed to him quantities of cocaine not part of the offense of conviction. We agree and find that the additional cocaine that the district court attributed to Ortiz was not part of the same common scheme or plan as the crime to which Ortiz pled guilty, and is thus not relevant conduct. As such, we vacate Ortiz's sentence and remand for resentencing. In light of this remand, we need not address Ortiz's arguments under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I. BACKGROUND

Ortiz pled guilty to one count of distributing marijuana and two counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). Ortiz sold drugs from the car repair shop he ran in Lake Station, Indiana. Unfortunately for Ortiz, the Drug Enforcement Administration (DEA) launched an investigation into the northern Indiana drug trade, and had an informant buy drugs from Ortiz. In his plea, Ortiz admitted selling drugs to the informant on three occasions: eight pounds of marijuana in September 2000; five ounces of cocaine in January 2001; and another five ounces of cocaine in March 2001.

Around the same time that Ortiz was selling drugs to the DEA's informant, the DEA began investigating Jay Zambrana, another drug dealer. During the course of that investigation, the DEA spoke with Carlos Ripoll, who told them that he sold drugs for Zambrana, and that one of his customers was Ortiz. According to Ortiz's presentencing report, Ripoll told the investigators that he and Zambrana sold at least 15 kilograms of cocaine to Ortiz during the years 1997 to 1999.

In Ortiz's presentence report, his probation officer recommended that the district court include as the drug quantity for which Ortiz was responsible not only the drugs that Ortiz sold to the DEA's informant, but also the 15 kilograms of cocaine that he allegedly bought from Ripoll and Zambrana. In support of that recommendation, the government called Ripoll as a witness at Ortiz's sentencing hearing. Ripoll testified that he and Zambrana delivered even larger quantities of cocaine to Ortiz than what he previously told the DEA. Specifically, Ripoll testified that he sold Ortiz more than 100 kilograms of cocaine.

In sentencing Ortiz, the district court concluded that Ripoll's testimony regarding the additional 100 kilograms was credible, and concluded that Ortiz should be held responsible for 100 kilograms of cocaine. The district court also denied Ortiz a downward adjustment for acceptance of responsibility, and added two sentencing points for activity occurring during supervised release. Accordingly, the district court sentenced Ortiz to 240 months imprisonment. From this sentence, Ortiz appeals.

II. ANALYSIS

A. Waiver of District Court's Relevant Conduct Determination

We find that Ortiz neither waived nor forfeited the issue of relevant conduct and this issue was properly preserved. Waiver is the intentional relinquishment and abandonment of a known right. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Waiver differs from forfeiture, which is simply the failure to make a timely assertion of a right. Id. Waiver extinguishes any error that the district court may have made and precludes appellate review. United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). Forfeiture permits plain error review. Id. A common distinction we draw between waiver and forfeiture is that waiver comes about intentionally whereas forfeiture occurs through neglect. Id.

The government argues that Ortiz waived any right to appeal the district court's relevant conduct determination because he failed to object after the district court specifically solicited objections to its findings. We find this argument unconvincing. We have held that we construe waiver principles liberally in favor of the defendant. United States v. Sumner, 265 F.3d 532, 538 (7th Cir.2001). The record reflects that Ortiz's counsel objected to the additional drug quantities asserted in the presentence report. Ortiz's counsel filed written objections to the alleged additional relevant conduct. Ortiz's counsel also stated at the sentencing hearing, "Mr. Ortiz argues that his drug quantity should be calculated only on the counts he has pled to . . . Mr. Ortiz would argue to the Court that that's the full extent of his involvement in drugs as it relates to both the indictment and his relevant conduct." Sentencing Hr'g Tr., Vol. II at 10-11. The fact that Ortiz's counsel did not continue to object regarding the additional relevant conduct, after the judge ruled on Ripoll's testimony, does not constitute waiver. In addition, after finding that Ripoll was credible and that the alleged additional transactions should be considered relevant conduct, the district court specifically limited objections to those "other than what you have already argued." Sentencing Hr'g Tr., Vol. II at 30. We have held that when a defendant consistently disputes an issue, and the district court does not specifically elicit objections to the adequacy of the findings, the defendant is not required to interpose a further objection to the adequacy of the district court's findings after the district court has ruled. United States v. Freitag, 230 F.3d 1019, 1025 n. 7 (7th Cir.2000). Ortiz objected to the presentencing report, and he argued at sentencing that the district court should only attribute to him the drug quantity to which he pled. The government is arguing, in essence, that defendants must take exception to district judges' rulings, and the clear language of Fed. R. Crim P. 51(a) states that there is no need to do so. The actions of Ortiz, through his counsel, are sufficient to have preserved this issue.

B. Ripoll's Credibility

Ortiz argues that we should find Ripoll's testimony incredible as a matter of law. Although we conclude in this opinion that the district court clearly erred by its relevant conduct finding, we decline to take the additional leap of finding Ripoll incredible as a matter of law. We review a district court's witness credibility determinations for clear error. United States v. Noble, 246 F.3d 946, 953 (7th Cir.2001). We have held that determinations of witness credibility are entitled to great deference and "can virtually never be clear error." United States v. Blalock, 321 F.3d 686, 690 (7th Cir.2003) (internal quotation marks and citation omitted). See also United States v. Ferguson, 35 F.3d 327, 333 (7th Cir.1994) ("The district court's evaluation of witness credibility will not be disturbed unless it is completely without foundation."); United States v. Porter, 23 F.3d 1274, 1278 (7th Cir.1994) ("Any argument that the trial judge should have disbelieved a certain witness is doomed at the outset.") We give such a high-level of deference to such findings of credibility because "[t]he trial judge has the best opportunity to observe the verbal and nonverbal behavior of the witnesses focusing on the subject's reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and body movements, as well as confused or nervous speech patterns in contrast with merely looking at the cold pages of an appellate record." United States v. Eddy, 8 F.3d 577, 582-83 (7th Cir.1993) (internal quotation marks and citations omitted). A credibility determination by a district court using the preponderance standard cannot be challenged on appeal "unless the court credited testimony that was essentially unbelievable as a matter of law." United States v. Smith, 308 F.3d 726, 746 (7th Cir.2002). In order for testimony to be found incredible as a matter of law, "`it must have been either physically impossible for the witness to observe that which he or she claims occurred, or impossible under the laws of nature for the occurrence to have taken place at all.'" United States v. McEntire, 153 F.3d 424, 435 (7th Cir.1998) (quoting United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir.1989)).

Ortiz argues that Ripoll's testimony is incredible because of some inconsistencies of Ripoll's testimony. Ripoll testified initially that he saw Ortiz make one purchase of cocaine from Zambrana in 1997. The next purchase Ripoll observed was over a year later in the summer of 1998. Then, after a gap of a couple of months, Ripoll saw Ortiz thereafter purchase from Zambrana weekly, or every two or three weeks. However, later in Ortiz's testimony he said that he saw Ortiz purchase cocaine from Zambrana weekly. Ortiz also argues that, according to the presentence report, Ortiz initially told the DEA that Ortiz had purchased 15 kilograms of cocaine; however, while testifying, this number mushroomed to 100 kilograms. Although this testimony is troubling, it does not meet the standard mandating that we deem it incredible as a matter of law, and we decline to second-guess the credibility findings of the trial...