U.S. v. Rosalez-Cortez
| Citation | 19 F.3d 1210 |
| Decision Date | 24 March 1994 |
| Docket Number | No. 93-1239,ROSALEZ-CORTE,D,93-1239 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jesusefendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Eddie A. Stephens (argued), Office of the U.S. Atty., Chicago, IL, for plaintiff-appellee.
Robert L. Edwards, Phillip J. Zisook (argued), Deutsch, Levy & Engel, Chicago, IL, for defendant-appellant.
Before BAUER and RIPPLE, Circuit Judges, and REYNOLDS, District Judge. *
Jesus Rosalez-Cortez ("Rosalez") and Augustin Ortega-Vargas ("Ortega") were charged in a two-count indictment with conspiracy to possess with intent to distribute approximately two kilograms of mixtures containing cocaine in violation of 21 U.S.C. Sec. 846(a)(1), and attempt to possess with intent
to distribute that amount in violation of 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 2. Following a two-day bench trial, Mr. Rosalez was found guilty of both counts of the indictment. On the day judgment was entered against Mr. Rosalez, Ortega entered a change of plea to guilty on both counts. Both defendants were sentenced on January 15, 1993. Mr. Rosalez' sentence was a concurrent term of 63 months of imprisonment and four years of supervised release on each count. Ortega received the same sentence. Mr. Rosalez appeals his conviction and sentence. For the reasons that follow, we affirm the judgment of the district court.
The Loma Linda Bar in Chicago was the meeting place for Mr. Rosalez, Ortega and Jose Varela, a confidential informant. When they first met on March 23, 1992, their conversation soon turned to selling cocaine to Varela. Mr. Rosalez was present as Ortega explained to Varela that he was expecting 25 kilos from Mexico. When Mr. Rosalez and Ortega met with Varela at the bar on three later occasions during the next week or so, Ortega told Varela that he had not yet received the cocaine from Mexico.
On June 5, 1992, Mr. Rosalez came to Varela's house on his own and asked Varela if he had any "paloma." 1 When Varela said he did have cocaine to sell, Mr. Rosalez responded, "right now, we need some." He also told Varela that Ortega was on his way over to talk about it. When Ortega arrived, he discussed buying cocaine from Varela while Mr. Rosalez listened. Ortega offered to buy one kilogram immediately. However, when Varela informed them that one kilogram would cost $30,000 but two would cost $27,000 each, Ortega told Mr. Rosalez, "Look, it's better for us to buy two, because then we will get a better price." Ortega also commented to Mr. Rosalez that there was enough money in a safety deposit box to purchase two kilograms. After Ortega and Varela exchanged pager numbers, Ortega and Mr. Rosalez left together.
Later that evening Ortega called Varela from Mr. Rosalez' house; he agreed to meet Varela the next morning at the Omni Store in Melrose Park to buy two kilos, or "two spares," as he called them. Tr. I at 37. Early on the morning of June 6, 1992, Ortega again called Varela; he confirmed his agreement to bring $54,000 for two "deuces," but changed the time from 10 to 11 a.m.
Varela and DEA Agent Tovar, who was posing as Varela's cousin and drug partner, drove to the Omni Store shortly before 11 a.m. When Ortega and Mr. Rosalez came out of Omni, Varela walked over to their car with them. Ortega got into the driver's seat; Mr. Rosalez entered the passenger side; Varela stood by the driver's window. Both Ortega and Rosalez acknowledged that they had the money with them. However, when Ortega removed a white plastic bag of money from a hiding place in the back door of the car to show to Varela, Mr. Rosalez advised him to put another bag around it because the money was visible through the bag. Mr. Rosalez then picked up a brown plastic bag and held it open while Ortega placed the white plastic bag of money inside it. Once he saw the money, Varela told his "cousin/partner" Tovar; then Ortega, carrying the money bag, and Mr. Rosalez accompanied Varela to Agent Tovar's car. Mr. Rosalez never questioned what was happening. He and Ortega got into the back seat of the car, and Varela sat in the front. "Cousin" Tovar asked to see the money and counted it in the presence of both men. When Ortega explained that the money was packaged "in fives," i.e., $5,000 bundles, Mr. Rosalez nodded in agreement. Mr. Rosalez also nodded when Ortega suggested that they drive to his car to transfer the cocaine into it.
As they drove across the parking lot to Ortega's car, Tovar asked the men about the After being advised in Spanish of his constitutional rights, Mr. Rosalez voluntarily stated that he knew his friend Ortega sold cocaine "here and there." Mr. Rosalez explained to the authorities that, on June 6, Ortega had simply asked him to go to a store; in the Omni Store Ortega had said he was waiting to conduct a deal, but had not indicated that it was going to be a drug deal. He said that he did not know Ortega had a large sum of money, and did not see any money until Ortega opened the money bag inside Agent Tovar's car. Mr. Rosalez also stated that he had been unemployed for a year. However, when he was arrested, Mr. Rosalez was wearing a pager which, according to the records of the Starr Beeper Company (the company that had leased a pager to Ortega as well), had been leased by Mr. Rosalez for six months with advance payment.
possibility of future cocaine deals on a regular basis. Ortega said that things were presently "out of control," but that he would call later. Mr. Rosalez also said he would talk to him later. When Ortega and Mr. Rosalez got out of Tovar's car they were arrested.
The evidence at trial included telephone records confirming calls from Mr. Rosalez' residence to both Varela's and Ortega's residences on the evening of June 5, 1992. In addition, a phone call was made at 7:48 a.m. on June 6, 1992 from Mr. Rosalez' home to Varela's residence.
Following the conclusion of evidence and of closing arguments, the court found Mr. Rosalez guilty of both counts. In an oral ruling from the bench, tr. IV at 208-09, and later in its denial of Mr. Rosalez' subsequent motion for judgment of acquittal or new trial, R. 42, the court explained that an important fact in its consideration was Mr. Rosalez' decision to leave Ortega's car and go to another automobile to exchange the money for cocaine. The uncontroverted evidence of Mr. Rosalez' many conversations with Varela about the sale of drugs and his appearance and participation at the scene of the proposed drug transaction were also substantial factors in its decision.
At the sentencing hearing on January 15, 1993, while awaiting the interpreter, the district court discussed with the attorneys the possible sentence ranges of Ortega, who by pleading guilty might qualify for a two-point reduction for acceptance of responsibility, and of Mr. Rosalez, who by pleading not guilty might not get the same reduction. The court further commented that, if Mr. Rosalez were to stand before the court and to admit criminal responsibility for what he had done, "perhaps the findings would be there for [the court] to give a two-point reduction."
When the interpreter arrived and the sentencing hearing commenced, Mr. Rosalez did in fact express some remorse: He admitted making a phone call, 2 but stated that he did not know it was a crime, and would not do it again. After the court asked him to admit that he should have left the scene of the crime when he knew what was happening, he responded that it was too late to leave because he was already there. The court also asked him directly whether he regretted that he participated, and he answered "yes," but had nothing more to add.
The district court then sentenced both defendants. Based upon the presentence investigation report, the court initially determined that the base offense level for both Rosalez and Ortega was level 28. Persuaded by defense counsel that "approximately two kilograms" of cocaine could be less than two, the court reduced the base level to 26. The court then granted Ortega a two-point reduction for acceptance of responsibility under the United States Sentencing Guideline Sec. 3E1.1(a) ("U.S.S.G. Sec. 3E1.1(a)"), and determined that Ortega's total offense level was 24 and his criminal history category was I. The court sentenced Ortega to concurrent Considering next Mr. Rosalez' sentence, the court heard additional arguments from both counsel on a possible adjustment for acceptance of responsibility. It also engaged in a colloquy with Mr. Rosalez concerning his participation in the attempted drug transaction. Mr. Rosalez again denied knowing it was a crime to participate, and did not accept Varela's account of what transpired. He admitted only to making the phone call and to being on the scene when "it started happening."
sentences of 63 months of imprisonment and four years of supervised release.
The court then explained that the commentary note 2 to Sec. 3E1.1 instructs a court not to grant an acceptance of responsibility reduction to a defendant who went to trial denying his guilt. After expressing regret that it had attempted to elicit statements of remorse from Mr. Rosalez, the court then noted that Mr. Rosalez was neither remorseful nor honest:
[H]ad he just made that phone call, I will bet he would have never made it into this court. But he went beyond that. He went to the scene. He saw a transaction. He went from one car to another.
And I have probably gone too far in eliciting from him his ability to show remorse for these things. And frankly I just don't see it.... So I am not going to give him a two point acceptance of responsibility.
The court then determined that Mr. Rosalez'...
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