U.S. v. Romero

• Decision Date: 08 December 2006
• Docket Number: No. 05-3294.,No. 05-3681.,05-3294.,05-3681.
• Citation: 469 F.3d 1139
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul ROMERO and Ricardo Romero, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

469 F.3d 1139

UNITED STATES of America, Plaintiff-Appellee, v. Raul ROMERO and Ricardo Romero, Defendants-Appellants.

No. 05-3294.

No. 05-3681.

United States Court of Appeals, Seventh Circuit.

Argued September 15, 2006.

Decided December 8, 2006.

COPYRIGHT MATERIAL OMITTED

Jeffrey M. Anderson, David Reinhard (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

David A. Geier (argued), Larowe, Gerlach & Roy, Robert T. Ruth, Madison, WI, for Defendants-Appellants.

Before FLAUM, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

On October 6, 2004, a grand jury in the Western District of Wisconsin returned an 18-count superseding indictment charging narcotics violations against seven individuals including Raul and Ricardo Romero. The indictment resulted from a two-year joint federal, state and local law enforcement investigation into drug trafficking by the "Romero organization" in Madison, Wisconsin. Several individuals in the Romero organization are brothers including Raul and Ricardo Romero. The government alleged that Raul Romero was a drug dealer in the organization while Ricardo Romero was a drug courier.

Raul Romero pled guilty to one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 130 months' imprisonment. Ricardo Romero was found guilty by a jury of one count of conspiring to distribute cocaine in violation of 21 U.S.C. § 846, one count of possession of five grams or more of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Ricardo Romero to a term of 151 months' imprisonment. Ricardo Romero appeals his conviction and both Ricardo and Raul Romero appeal their respective sentences. We affirm both the conviction and sentences.

I. BACKGROUND

A. Raul Romero

At his plea colloquy, Raul Romero admitted to selling cocaine to an undercover police officer on April 7, 2004. The undercover officer had set up a controlled drug buy as part of the then ongoing law enforcement investigation of the Romero organization. Raul Romero sent Joshua Carrasquillo, another member of the Romero organization, to deliver 27.9 grams of cocaine to the undercover officer in exchange for $850. The transaction occurred in the parking lot of the Kennedy Heights apartment complex in Madison. Carrasquillo also discussed the possibility of future drug transactions with the undercover police officer on behalf of Raul Romero.

In the Presentence Investigation Report ("PSR"), the Probation Officer determined that Raul Romero was responsible for selling drugs from at least November 2003 through April 2004. The Probation Officer calculated Raul Romero's relevant conduct at 2.5 kilograms of cocaine and, applying the November 2004 Sentencing Guidelines, his base offense level was 28. See U.S.S.G. § 2D1.1(c)(6).

Raul Romero objected to the PSR arguing that he was responsible for less than two kilograms of cocaine. The government countered that the 2.5 kilogram amount was a conservative estimate and the reality was that Raul Romero was responsible for significantly more drugs than the 2.5 kilograms of cocaine set forth in the PSR. The government, however, chose not to pursue an amount above and beyond the 2.5 kilograms at sentencing. The government did argue that Raul Romero should not receive a reduction for acceptance of responsibility if he contested the 2.5 kilograms.

Raul Romero continued in his objection to the PSR and the district court conducted a sentencing hearing on July 20, 2005. The government presented in-court testimony from a Drug Enforcement Administration ("DEA") agent who participated in the Romero investigation. The DEA agent testified as to the government's investigation of Raul Romero including undercover drug purchases as well as physical and electronic surveillance. The government also provided in-court testimony from cooperating witness Jose David Suarez and the prior grand jury testimony of cooperating witnesses Jacourtney Ticey and Danny Turner. Suarez, Ticey, and Turner testified as to their participation in, and witnessing of, drug transactions and other drug related activities involving Raul Romero.

The district court determined that the government had met its burden and found Raul Romero responsible for 2.5 kilograms of cocaine. The court also held that Raul Romero was not eligible to receive a reduction for acceptance of responsibility. In explaining her decision, the district court commented:

I mean it's very clear to me that, Mr. [Raul] Romero, you were involved in a lot more than the quantity that the government said it could prove against you and the quantity that was listed in the Presentence [Investigation] Report. And in contesting that, you were really denying responsibility for your involvement in the amount of cocaine for which you're responsible, and I'm not going to give you an adjustment for acceptance of responsibility. You knew the risk. You went ahead and took it. Well, this is what the consequence is.

Tr. at 99-100, July 20, 2005. The district court then calculated Raul Romero's advisory Sentencing Guideline range. Raul Romero's base offense level was 28 for the 2.5 kilograms of cocaine and this was enhanced by two levels for obstruction of justice¹ for a total offense level of 30. With his criminal history category of III, Raul Romero's resulting advisory Sentencing Guidelines range was 121 to 151 months' imprisonment. The district court, after considering the sentencing factors set forth in 18 U.S.C. § 3553(a), imposed a sentence of 130 months' imprisonment.

B. Ricardo Romero

Ricardo Romero's conviction is based on his April 30, 2004 delivery of a blue cookie tin that contained cocaine and cocaine base. The government's theory of the case was that Ricardo Romero transported the drugs to his mother's apartment on Troy Drive in order to facilitate a drug sale between Raul Romero and Danny Turner. As Ricardo Romero's present appeal attacks the validity of both his conviction and sentence, we recount the evidence presented at trial and sentencing.

On the morning of April 30, 2004, Mary Jane Almeida, Ricardo Romero's girlfriend at the time, left her home and went to her volunteer job at a local elementary school. Almeida was seventeen and a high school senior. Almeida and Ricardo Romero had known each other for approximately one and one-half months prior to April 30, 2004. Ricardo Romero, who had spent the prior evening at Almeida's home, remained at Almeida's home while she was at her job. Almeida drove Ricardo Romero's blue Oldsmobile Aurora to the volunteer job. She returned to her home at approximately 11:30 a.m. Almeida and Ricardo Romero had no prior joint plans to leave her home after she had returned from her volunteer job. In fact, Almeida had her own possible plans of going back to her volunteer job later in the day without Ricardo Romero.

Ricardo Romero then received a telephone call. Almeida testified, based on her viewing of the caller ID, that the telephone call had come from Ricardo Romero's mother's apartment on Troy Drive. The call lasted a few minutes and promptly thereafter Ricardo Romero and Almeida left for the mother's apartment. Almeida testified that Ricardo Romero was holding the blue cookie tin when they left for the Troy Drive apartment. She drove Ricardo Romero's Oldsmobile Aurora accompanying him to the apartment.

Ricardo Romero and Almeida arrived outside the Troy Drive apartment at approximately 11:45 a.m. According to Almeida, upon arriving, but before exiting the Oldsmobile, Almeida gave the car keys back to Ricardo Romero. However, he immediately returned the car keys to her along with the cookie tin and some clothing asking Almeida to hold onto these items for him. Almeida put the cookie tin, keys and clothing into her large size purse and then she and Ricardo Romero walked into the apartment building. Upon entering the apartment building, Ricardo Romero "grabbed" the cookie tin from Almeida's purse and then they continued to the apartment. Tr. at 114-15, June 20, 2005.

Several people were in the mother's apartment when Almeida and Ricardo Romero arrived including Raul Romero, Ricardo Romero's mother, Ricardo Romero's nephews, and Turner. Turner testified that he had gone with Raul Romero to the Troy Drive apartment with the intent of receiving cocaine from Raul Romero. Turner had already paid Raul Romero for one-eighth of an ounce of cocaine. Raul Romero informed Turner that he did not have any cocaine when he arrived at the apartment and they needed to wait for cocaine to be delivered. Turner and Raul Romero waited for approximately five to ten minutes and then Ricardo Romero and Almeida arrived. Upon arriving, Ricardo Romero gave the cookie tin to Raul Romero and then Raul Romero went to the bathroom with the cookie tin. Raul Romero then gave cocaine to Turner and Turner left the apartment. The cookie tin was returned to Ricardo Romero who gave the cookie tin back to Almeida. Almeida placed the cookie tin back in her purse and she and Ricardo Romero left the apartment. Almeida was sitting on the living room couch reading a magazine during her time in the apartment.

Law enforcement involved in the Romero organization investigation were performing surveillance of the Troy Drive apartment on April 30, 2004. Officers witnessed Turner leave the apartment building. They also witnessed Ricardo Romero and Almeida enter and exit the apartment building. Law enforcement followed Ricardo Romero and Almeida as Almeida drove Ricardo Romero's car away from the mother's apartment. The police officers then executed a valid traffic stop and valid search of the Oldsmobile. Almeida's purse was on the backseat of the Oldsmobile. The police discovered the cookie tin containing the cocaine and cocaine base....