U.S. v. Perez

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Kendall
• Citation: U.S. v. Perez, 581 F.3d 539 (7th Cir. 2009)
• Decision Date: 09 September 2009
• Docket Number: No. 07-2375.,07-2375.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramon PEREZ, Defendant-Appellant.

581 F.3d 539

UNITED STATES of America, Plaintiff-Appellee, v. Ramon PEREZ, Defendant-Appellant.

No. 07-2375.

United States Court of Appeals, Seventh Circuit.

Argued January 20, 2009.

Decided September 9, 2009.

Dean R. Lanter, Attorney (argued), Thomas S. Ratcliffe, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Joseph R. Lopez, Attorney (argued), Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, SYKES, Circuit Judge, and KENDALL, District Judge.^*

KENDALL, District Judge.

Ramon Perez was indicted for knowingly possessing with intent to distribute in excess of 500 grams of cocaine based on a traffic stop during which the officers recovered a single brick of cocaine weighing 993.9 grams. Perez pleaded guilty to the charged offense and the district court judge sentenced him to 135 months' incarceration based on the cocaine found during the traffic stop and other drugs located at his home that were recovered later that day. Perez claims that the district court judge erred when he increased his sentence for the drugs retrieved from the residence. Because we find that the district court judge correctly included the other drugs as relevant conduct, we affirm.

I. Background¹

On November 7, 2005, a Lake County, Indiana police officer stopped Perez for speeding on Interstate 65 ("I-65"). When the officer approached the vehicle he observed Perez in the driver's seat seated next to two small children. The officer gave Perez a warning ticket and told him that he was free to leave. As Perez began walking to his car, the officer asked him if he had any illegal weapons or drugs in the vehicle. Perez denied having any drugs or weapons and agreed to let the officer search the car. A second officer found a brick of cocaine hidden inside the front passenger's airbag compartment with a net weight of 993.9 grams. The brick of cocaine had been pressed with a device that left a silhouette of a lizard on it. After finding the brick of cocaine, the officers arrested Perez.

The Lake County officers then notified the Illinois State Police Narcotics Unit of the arrest. The ISP officers subsequently went to Perez's home in Cicero, Illinois and received consent to search the home from Perez's wife, Ana Perez. Once inside, the officers retrieved a variety of narcotics including 425.1 net grams of heroin, 985.9 net grams of powder cocaine, 930.0 net grams of marijuana, and 227.7 net grams of methamphetamine. The drugs were mostly found in an east storage room but some were found in the garage. Also in the garage, the officers retrieved two large hydraulic presses suitable for packaging kilograms of cocaine. One of the presses was equipped with a wooden plate with the silhouette of a lizard on it—the exact lizard design pressed onto the brick of cocaine retrieved from Perez's vehicle earlier that day.

In Perez's bedroom, the officers recovered a Smith and Wesson .38 caliber revolver hidden between two mattresses. In the same bedroom, they also found a box of .38 caliber ammunition, three boxes of 9mm ammunition, a box of .25 caliber ammunition and documents indicating that Perez and his wife owned the home.

Ana Perez was subsequently charged in Illinois state court with possession of the narcotics found in the Perez home. At some point during the prosecution, the state court judge suppressed the drugs seized from the residence finding that the drugs were seized in violation of the Fourth Amendment. The record, however, does not reflect why the judge found the violation.

On November 16, 2005, a grand jury returned a one-count indictment against Perez charging him with possession with intent to distribute in excess of 500 grams of cocaine in violation of 21 U.S.C. § 841(a). The quantity of drugs charged in the indictment reflected the drugs that were seized from Perez's vehicle during the traffic stop and did not include the drugs that were seized at Perez's home in Cicero, Illinois. Perez filed a motion to suppress the cocaine found in his car and after conducting an evidentiary hearing, the district court denied Perez's motion. On December 11, 2006, Perez pleaded guilty to the one-count indictment. The Probation Department prepared a presentence investigation report ("PSR") and calculated Perez's base offense level as 34, based on the quantity of drugs seized from Perez's car and his home. The probation officer also added two levels pursuant to § 2D1.1(b)(1) because a firearm was located where a large amount of drugs were recovered.

Perez filed objections to the PSR and a motion for downward departure. Perez objected to the quantity of drugs attributed to him arguing that the drugs seized from his home should not be counted as relevant conduct because they were not charged in the indictment, that he did not admit to possessing them during his plea colloquy, and that they were seized illegally. Perez also objected to the two-level firearm enhancement arguing that the gun was not connected to the drug offense.

After receiving exhibits and hearing argument, the district court applied the two-level firearm enhancement and calculated the amount of drugs for the charged and relevant conduct to be 5,857.59 kilograms of marijuana (converted) based on both the brick of cocaine recovered during the traffic stop and all of the drugs retrieved from the residence. Based on these findings, the district court calculated Perez's total offense level at 33, resulting in a guideline range of 135 to 168 months imprisonment. Perez also made a request for a sentence below the applicable guideline range based on his lack of criminal history, his work history, and the allegedly uncomfortable conditions of confinement in the county jail where he was held. The district court addressed and rejected each of the grounds stated in support of Perez's request for a non-guideline sentence and sentenced him to 135 months' imprisonment.

II. Discussion

A. Relevant Conduct

Perez argues on appeal that he did not admit to the drugs quantities found in his home during his plea colloquy. At the hearing, however, the government stated:

And with respect to 404-B evidence, the Government would then establish that later in the day, officers from the Illinois State Police did a knock and talk at the defendant's home in Cicero, and received consent to search the home from the defendant's wife where they found approximately 550 thousand dollars worth of six different illegal narcotics, and two large hydraulic presses, one of which had a wooden press in the shape of the same lizard that was found on the brick of powder cocaine in the defendant's vehicle.

The district court judge then asked Perez if he had heard what the government said and if he agreed with the government's version of the events. Perez responded: "Yes." Perez was informed that the government would seek to hold him responsible for the entire amount of drugs and he did not challenge the relevant conduct at the time of his change of plea.

In spite of the position he took at his plea hearing, Perez challenges the district court's inclusion of the drugs from the residence as relevant conduct. We review the district court's determination of drug quantities attributable to a defendant at sentencing for clear error. See United States v. Jones, 209 F.3d 991, 994-95 (7th Cir.2000). The district judge's finding that a defendant's relevant conduct includes uncharged drug quantities is a factual determination entitled to our deference and will not be reversed unless we have a "definite and firm conviction that a mistake has been committed." United States v. Olivas-Ramirez, 487 F.3d 512, 516 (7th Cir. 2007) (internal citation omitted).

As an initial matter, Perez argues that the drugs seized from his home should not have been included to increase his sentence because they were seized illegally. Generally, the exclusionary rule is inapplicable at the criminal sentencing phase. See United States v. Brimah, 214 F.3d 854, 858-59 (7th Cir.2000) (joining nine other circuits in holding that "in most circumstances, the exclusionary rule does not bar the introduction of the fruits of illegal searches and seizures during sentencing proceedings."). There is a possibility that the exclusionary rule might apply at sentencing where the police deliberately violated the defendant's constitutional rights for the purpose of acquiring evidence to increase a defendant's prospective sentence. See Brimah, 214 F.3d at 858 n. 4; but see United States v. Jewel, 947 F.2d 224, 238 (7th Cir.1991) (Easterbrook, J., concurring) (commenting on the near impossibility of demonstrating that officers illegally obtained evidence specifically for use in sentencing, and going on to observe that "[i]t is awfully hard to see why motive should matter on either prudential or doctrinal grounds").

The record is devoid of any evidence that the police deliberately violated Perez's Fourth Amendment rights in seizing the drugs from his home with the intent to gather evidence to increase his sentence. Perez has made no attempt to make such a showing either before the district court or on appeal. The district court's refusal to apply the exclusionary rule to evidence that was suppressed in another court against a different defendant was not clear error based on the lack of any evidence to support Perez' bare assertion of misconduct.

Perez next alleges that the drugs seized from his home should not be included as relevant conduct because they were not charged in the indictment and he did not admit to them during his plea hearing. Under § 1B1.3(a)(2) of the Sentencing Guidelines, all acts and omissions that were "part of the same course of conduct or common scheme or plan as the offense of conviction" are be considered "relevant conduct" for sentencing purposes and such conduct is factored into the Guideline sentencing calculations as if the defendant had been convicted of that conduct. See United States...