U.S. v. Soto, 93-4036

• Decision Date: 06 February 1995
• Docket Number: No. 93-4036,93-4036
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose SOTO, also known as Lazaro Sanchez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1415

48 F.3d 1415

UNITED STATES of America, Plaintiff-Appellee, v. Jose SOTO, also known as Lazaro Sanchez, Defendant-Appellant.

No. 93-4036.

United States Court of Appeals Seventh Circuit.

Argued Sept. 23, 1994.

Decided Feb. 6, 1995.

David A. Glockner, Asst. U.S. Atty. (argued), Office of the U.S. Atty. Crim. Div., and Barry Rand Elden, Asst. U.S. Atty., Office of the U.S. Atty. Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Adam Bourgeois (argued), Chicago, IL, for defendant-appellant.

Before POSNER, COFFEY, and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

On April 25, 1991, a jury convicted Jose Soto (a.k.a. "Lazaro Sanchez") of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846, possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), as well as using and carrying a firearm during and in relation to the commission of a drug offense in violation of 18 U.S.C. Sec. 924(c). ¹ Judge Bua, the original trial judge, sentenced Soto to 138 months in prison, pursuant to the United States Sentencing Guidelines. ² On Soto's original appeal we affirmed his convictions but remanded for resentencing to determine whether he was eligible for a two level reduction in his offense level as a minor participant. U.S.S.G. Sec. 3B1.2(b). United States v. Gutierrez 78 F.2d 1463 (7th Cir.1992). ³ On remand before Judge Lindberg, the district court conducted a second sentencing hearing and found that the evidence at trial and sentencing established that the defendant was not entitled to a two point reduction in the offense level for minor participation. The district court resentenced Soto to 138 months. The defendant appeals the resentencing. We affirm.

I. BACKGROUND

We recite only those facts necessary for this appeal but point out that a more complete recitation of the facts may be found in Gutierrez. 978 F.2d at 1465-66. In July of 1990, as part of a Drug Enforcement Administration ("DEA") undercover operation, private investigator Domingo Alvarez, at the direction of the DEA, negotiated a purchase of two kilograms of cocaine from Jesus Padilla for $60,000. After the deal had been arranged, Alvarez and Padilla, his supplier, drove to a bar to meet Padilla's supplier, Felipe Martin. While driving to the bar, Alvarez advised Padilla that another man, Rafael Tovar, had the money for the cocaine. ⁴

When the men arrived at the tavern, Padilla went inside to meet Martin. Padilla returned to Alvarez's car with Martin to inform Alvarez that the cocaine was ready and that he should get his friend, Tovar, and bring the money. After Alvarez returned with Tovar, Jose Medina arrived. All five men exited the bar and travelled to Medina's apartment, where the deal was to occur.

Agent Tovar accompanied Padilla, Martin, and Medina into the apartment while Alvarez remained outside with the money. Two men, later identified as Soto and Candelario Gutierrez, were in the apartment, seated on a couch in the living room immediately in front of a coffee table. Tovar asked Medina about these men and Medina replied, "They're nobody." At this time, Medina asked, "Where's the package?" Gutierrez replied, "In there" and pointed downward towards a compartment in the coffee table. Soto uncrossed his legs and pointed toward the compartment with his foot and also stated, "Alli" or "In there." Medina opened the designated compartment, retrieved an opaque package, and removed two bricks of cocaine each weighing approximately two and one-half ounces. Tovar asked Gutierrez whether the cocaine was "rerock," a diluted form of cocaine, and Gutierrez replied that it was not. Agent Tovar asked Gutierrez how much cocaine they could provide him on a weekly basis for he wanted a steady source of cocaine. In reply, Gutierrez stated that they could provide ten to twelve kilograms per week.

After Agent Tovar had an opportunity to examine the cocaine, Medina directed him to get the money from Alvarez. Agent Tovar told Padilla to get Alvarez and the money, but Soto countermanded the order and stated, "No, just you go," directing Agent Tovar to get the money himself, whereupon the undercover agent explained that he would have to use the telephone to call Alvarez on his pager "and have him get up close to where I could go get the money." Soto responded that there was no telephone. At this time, Agent Tovar, with the assistance of an electronic device, signaled for other DEA agents to move in and make the arrest. DEA surveillance agents entered and placed Soto, Gutierrez, Martin, Medina and Padilla under arrest. A search revealed that Gutierrez was carrying a fully-loaded semi-automatic .45 pistol in the waistband of his pants, with the hammer pulled back and the safety lever on. The two bricks of cocaine withdrawn from the coffee table were recovered from Medina, each weighing approximately two and a half ounces.

Gutierrez and others were charged with a number of crimes in relation to this drug conspiracy. Soto was charged in a two-count indictment with possession of cocaine with intent to distribute and with conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Subsequently, a superseding indictment was filed adding a third count against Soto, charging him with using and carrying a firearm during and in relation to the commission of a drug offense in violation of 18 U.S.C. Sec. 924(c). Soto elected to go to trial, and was convicted by a jury of each of the three counts.

Judge Bua of the United States District Court for the Northern District of Illinois presided over Soto's trial and the sentencing. ⁵ At sentencing, Soto requested a two to four level reduction in his offense level under Guideline Sec. 3B1.2 ⁶ for his allegedly minimal or minor participation in the drug transaction. Judge Bua denied Soto's request for a four level reduction and found that "Soto's words and actions during the transaction indicated he had a knowledge of the participants and understood their activities, and therefore he was not a minimal participant." Gutierrez, 978 F.2d at 1470-71. ⁷

Soto appealed his conviction and sentence. This court upheld his conviction but we held that it was "unclear from the record of the sentencing proceedings whether the district court credited that evidence with regard to Soto's eligibility as a minor participant." Id. at 1471. The court went on to state that we will not substitute our judgment for that of the district court and, therefore, vacated Soto's sentence and remanded it to the district court for the sole purpose of determining whether Soto was entitled to a two-level reduction. Id.

Subsequent to Soto's sentencing by Judge Bua, but before the appellate decision was rendered, Judge Bua retired from active status. Judge Lindberg was assigned to handle Soto's sentencing on remand from this court in Gutierrez. On the resentencing date, March 23, 1993, Judge Lindberg issued a specific and detailed minute order in which he denied Soto's request for a two-level reduction for minor participation in the offense and reimposed the same sentence as Judge Bua.

Soto appealed his resentencing before Judge Lindberg on the grounds that his presence was required. ⁸ Fed.R.Crim.P. 43. At the time of the resentencing, however, the defendant made no objection to the reassignment of the proceedings to Judge Lindberg. The government agreed with the defendant's motion to remand the case for resentencing before Judge Lindberg, for the limited purpose of allowing the judge to conduct a sentencing hearing in the presence of the defendant.

On December 9, 1993, Judge Lindberg conducted a resentencing hearing and after reviewing the presentence report, the sentencing memoranda filed by the parties, the arguments of counsel, and Soto's statement at the hearing, calculated Soto's sentence. ⁹ He found that Soto's offense level on Counts 1 and 2 was 28, the same offense level computed by Judge Bua at the time of his first sentencing. Although Soto sought a two to three level reduction in his offense level pursuant to Guideline Sec. 3B1.2, ¹⁰ Judge Lindberg refused to decrease the offense level. He concluded that Soto had a "sufficiently significant role in the offense to deny either minor or minimal" participant status. In reaching this conclusion, Judge Lindberg observed on the record that:

[W]ith regard to the Court's evaluation of the evidence that's been presented essentially by agreement, you are--it is the view of this Court that your presence in the room while the drug transaction was going down was enough to discredit your protest that you were only there to repair a car. That is not to say that you may not have had car repair as part of your business, but the evidence would appear to this Court to suggest that by your agreement and the agreement of Mr. Gutierrez, you were to be present and, as it turned out, participate. And even if that was not enough, the evidence further disclosed that you participated in directing the purchasers to the drawer in the coffee table where the two kilos were stored.

Now there is some suggestion that the mere flip of a foot is hardly a significant--sufficiently significant role in the offense to deny either minor or minimal. However, the Court views a flip of the foot under those circumstances where the foot was essentially addressing the location of two kilos of cocaine speaks volumes. Very importantly to the Court, you countermanded the intention of one of the undercover agents who was going to use his pager to summon, I believe, it was Agent Alvarez outside, another agent in any event, I think he is a contract agent, I am not sure, who possessed the money, directing the undercover agent instead to go outside to find the person with the money. Now that alone is more than sufficient indication to this Court that you had a management role in the transaction as it was you and not Gutierrez who countermanded the undercover...