United States v. Medina

• Decision Date: 27 August 2013
• Docket Number: No. 12–1930.,12–1930.
• Citation: 728 F.3d 701
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Lazaro MEDINA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

728 F.3d 701

UNITED STATES of America, Plaintiff–Appellee,

v.Lazaro MEDINA, Defendant–Appellant.

No. 12–1930.

United States Court of Appeals,Seventh Circuit.

Argued Dec. 3, 2012.

Decided Aug. 27, 2013.

John F. Kness (submitted), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Andrea Elizabeth Gambino (submitted), Attorney, Gambino & Associates, Chicago, IL, for Defendant–Appellant.

Before WOOD and HAMILTON, Circuit Judges, and DARROW, District Judge. ^*

DARROW, District Judge.

Lazaro Medina appeals the sentence he received after pleading guilty to conspiracy to distribute cocaine and possession of cocaine with intent to distribute. Medina challenges the district court's drug quantity calculation at sentencing, arguing that the court should have required proof of drug quantity beyond a reasonable doubt rather than by a preponderance of the evidence. Medina also maintains that, even if the preponderance-of-the-evidence standard applies, it was not met in his case because the evidence supporting the district court's drug quantity finding was unreliable. We reject both arguments and affirm Medina's sentence.

I. Background

In 2007, law enforcement began investigating brothers Mario Melendez (“Melendez”) and Abel Cadena–Melendez (“Cadena–Melendez”) for their involvement in a drug trafficking organization operating out of the Little Marketa General Store in Plano, Illinois. Government agents obtained a wiretap and conducted surveillance of Melendez's store and home. The trail soon led to Lazaro Medina, who was fronting cocaine to the Melendez brothers. Telephone and physical surveillance confirmed the negotiation and subsequent delivery of one kilogram of cocaine by Medina to Melendez in August of 2008. Medina was charged by criminal complaint with conspiring to distribute cocaine on December 9, 2009, and was arrested at his home the next day. During a subsequent search of Medina's garage, agents discovered 9.5 kilograms of cocaine, packaging materials, $124,124 in cash, and $51,890 worth of jewelry.

On February 3, 2010, a grand jury returned a five-count indictment charging Medina with, among other things, conspiracy to distribute cocaine (Count One) and possession of cocaine with intent to distribute (Count Three) in violation of 21 U.S.C. § 841(a)(1) and § 846. Medina pleaded guilty to Counts One and Three of the indictment on September 28, 2010, without a written plea agreement. At the change of plea hearing, government counsel summarized the evidence to establish a factual basis for Medina's plea. The government stated that between approximately 2001 and December 2009, Medina supplied kilogram quantities of cocaine to Melendez and Cadena–Melendez on a regular basis without receiving immediate payment. The government also detailed Medina's delivery of a kilogram of cocaine to Melendez on August 18, 2008, as well as the 9.5 kilograms of cocaine found in Medina's garage. Following the summary of the evidence, the district judge asked Medina, “Have you heard the statement of the Assistant United States Attorney?” to which Medina responded, “Yes.” When asked by the court whether the government's statement was “true,” Medina said, “Yes.” The court then asked Medina to summarize what he did, to which Medina responded, “I had that substance to sell, yes.... That substance was cocaine.” The court then accepted Medina's plea of guilty.¹ A few months later, on April 4, 2011, Medina provided a safety valve interview to the government under 18 U.S.C. § 3553(f) in an effort to obtain relief from the ten-year mandatory minimum sentence. In that interview, however, Medina claimed that he did not begin supplying Melendez with cocaine until January or February of 2009, and that he never provided Melendez with kilogram quantities.

In Medina's Presentence Investigation Report (“PSR”), the probation officer determined that Medina was responsible for at least 67.5 kilograms of cocaine, a calculation supported by two post-arrest statements made by Melendez that detailed a history of prior dealing with Medina going back to 2001. Medina objected to the PSR, claiming that only the cocaine seized during the course of the investigation should be attributed to him. According to Medina, that cocaine (9.5 kilograms from his garage, two 1–ounce controlled buys, 249 grams seized from a codefendant's vehicle, and 208 grams found in the Little Marketa store) placed him in the 5–15 kilogram range.

In a supplemental sentencing memorandum, the government provided further detail regarding Melendez's statements. In Melendez's first post-arrest statement he admitted that Medina began supplying cocaine to him after they met at a party in 2001. Medina started out fronting Melendez one-quarter kilogram quantities of cocaine, but it soon picked up such that from 2001 to 2006, Medina was supplying Melendez with one kilogram every four to six weeks. Between 2006 and 2009, Melendez stated that the frequency decreased to one kilogram every six to eight weeks, and estimated that he had received ten kilos from Medina since 2006. The government therefore argued that Medina should be held responsible for 70.5 kilograms: 40 kilograms from 2001 to 2006, 21 kilograms from 2006 to 2009, and the 9.5 kilograms seized from Medina's garage.

In Melendez's second statement, given pursuant to a safety valve interview on January 24, 2011, his story changed somewhat. Melendez said that after he met Medina in 2001, Medina began fronting him one-quarter kilograms every month for six months; after six months, Melendez received one-half kilograms every month for another six months. In 2002 or 2003, Medina started fronting Melendez one kilogram of cocaine every six to eight weeks. In 2005, the frequency dropped to one kilogram every two months, and in 2007 Medina went back to fronting one-quarter kilogram quantities. Based on Melendez's second statement, the government's estimate dropped to 52.5 kilograms: 4.5 kilos in the first year of dealing, 32.5 kilos from 2002 to 2007, and the 9.5 kilograms seized. Accordingly, based on Melendez's statements and the cocaine seized from Medina, the government took the position at sentencing that Medina was accountable for more than 50 kilograms of cocaine.

At the sentencing hearing, the government affirmed that its position regarding Medina's drug quantity calculation was based mostly on Melendez's statements. Although Melendez did not testify at the hearing, the government argued that his prior statements were reliable because they were made against interest and were corroborated by evidence gathered during the course of the investigation. Medina argued that the statements were not made against interest. Further, Medina challenged the court's reliance on Melendez's statements because the court did not have the opportunity to judge his credibility firsthand. After hearing argument, the district court placed Medina in the 15–50 kilogram range, stating:

It's going to be 15 to 50. If he's wrong because it's—the difference there admittedly on your conservative estimate is two and a half kilograms, but he's found in his garage with 9.5 kilograms? People don't have 9.5 kilograms of cocaine sitting around who aren't big dealers, let alone the hundred and some thousand dollars in jewelry and whatever else there was. All right. It may be awfully conservative, but he'll get the benefit of the doubt. It's between 15 and 50 kilograms.

I do believe that Mr. Melendez's statements are so against his own interests that they can be believed in terms of general substance. What bothers me in saying it's over 52.5 is we are talking about going back a long time and remembering exactly how much it would be every month or how often. So I am more comfortable in saying that it is someplace 50 or below, but I'm sure it's well over the 15.

Based on this drug quantity finding, Medina's base offense level was 34. After including a two-level enhancement for obstruction of justice, and denying Medina credit for acceptance of responsibility under U.S.S.G. § 3E1.1, the court found that Medina had an advisory Sentencing Guidelines range of 188–235 months. Following additional argument from the parties concerning application of the...