USA v. Pineda-buenaventura

Decision Date15 September 2010
Docket NumberNos. 09-1500, 09-1525, 09-1875, 09-2431.,s. 09-1500, 09-1525, 09-1875, 09-2431.
Citation622 F.3d 761
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Teodulo PINEDA-BUENAVENTURA, Otoniel Mendoza, Gerardo Pineda-Soria, and Arturo Pineda-Lopez, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit



Paul W. Connell, Attorney (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Robert A. Handelsman, Attorney (argued), Chicago, IL, for Teodulo Pineda-Buenaventura Defendant-Appellant.

Mark P. Maciolek, Attorney, MNM Law Office, Madison, WI, for Arturo Pineda-Lopez Defendant-Appellant

Susan Kister, Attorney (argued), St. Louis, MO, for Otoniel Mendoza Defendant-Appellant.

Megan M. Keleher, Attorney (argued), Wildman, Harrold, Allen & Dixon, Chicago, IL, for Gerardo Pineda-Soria Defendant-Appellant.

Before MANION and WILLIAMS, Circuit Judges, and DARRAH, District Judge. *

WILLIAMS, Circuit Judge.

This is a consolidated appeal of four defendants involved in a large cocaine distribution conspiracy that operated in Jefferson County, Wisconsin. Following an investigation involving wiretap surveillance, controlled purchases, and confidential informants, sixteen individuals were charged in two separate indictments for conduct related to the conspiracy. The four defendants involved here-Teodulo Pineda-Buenaventura, Otoniel Mendoza, Gerardo Pineda-Soria, and Arturo Pineda-Lopez-each pled guilty to possessing or conspiring to possess with intent to distribute cocaine. Each now appeals. Teodulo Pineda-Buenaventura challenges his sentence, arguing that the drug amount calculation in his presentence investigation report was insufficient to support the statutory mandatory minimum sentence he received. Otoniel Mendoza challenges the validity of his guilty plea, arguing that his plea colloquy did not satisfy the requirements of Federal Rule of Criminal Procedure 11. Gerardo Pineda-Soria appeals the denial of his motion to suppress drugs found in his apartment and statements he made thereafter, arguing that the search violated the Fourth Amendment. And Arturo Pineda-Lopez's attorney has filed an Anders brief, seeking to withdraw on the basis that there are no non-frivolous arguments to be made by Pineda-Lopez on appeal.

For the reasons explained below, we vacate Pineda-Buenaventura's sentence and remand for resentencing because the district court's drug quantity findings did not support the sentence he received. We also vacate Mendoza's conviction because his plea colloquy did not satisfy the requirements of Rule 11, and so we remand for further proceedings. Furthermore, we affirm the district court's denial of Pineda-Soria's motion to suppress because he and his co-tenants gave valid consent to search his apartment. Finally, we grant Pineda-Lopez's counsel permission to withdraw because a challenge to the reasonableness of his sentence would be frivolous.


Teodulo Pineda-Buenaventura was a “runner” in the drug conspiracy who delivered cocaine at the direction of his cousin, Efrain Pineda-Buenaventura, one of the co-leaders of the conspiracy. 1 On June 19, 2008, after wiretap surveillance, police executed a search warrant at his home and recovered cocaine, a digital scale, a firearm, and $16,000 in cash. He was arrested, admitted to his involvement in the conspiracy, and on December 10, 2008, pled guilty pursuant to a written plea agreement to a single count of conspiracy to possess with intent to distribute at least 500 grams of cocaine. The plea agreement provided that he was subject to a 60-month mandatory minimum term of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B), but offered no details as to the specific amount of drugs to which he was admitting responsibility. At the plea hearing, the government acknowledged that while the count to which Pineda-Buenaventura was pleading was based on an amount of at least 500 grams, if the presentence investigation resulted in a finding that he was responsible for less, he would only be held accountable for that lower amount.

Pineda-Buenaventura's presentence investigation report (“PSR”) stated that 105 grams of cocaine were recovered from his home during the execution of the search warrant and that wiretap surveillance showed he had made deliveries totaling approximately 300 grams of cocaine. The PSR also found that Pineda-Buenaventura made 22 additional deliveries in which the drug quantities “could not be determined.” Based on these findings, the PSR stated that [t]he probation office believes that Teodulo's relevant conduct involves at least 400 grams to 500 grams of cocaine, resulting in a base offense level of 24. This is a conservative estimate.”

At Pineda-Buenaventura's sentencing hearing, the district judge imposed the statutory minimum sentence of 60 months based on responsibility for 500 or more grams of cocaine. The district court appeared to agree with the findings in the PSR-including, presumably, its estimate that Pineda-Buenaventura was responsible for “at least” 400 to 500 grams of cocaine-but then stated [y]our relevant conduct involves at least 400 grams but less than 500 grams of cocaine.” (emphasis added). Apparently, the district judge believed that Pineda-Buenaventura was responsible for at least 500 grams (given that she sentenced him to a mandatory minimum based on that amount), but then made an express finding that he was responsible for less than that amount.

Pineda-Buenaventura contends that his PSR does not establish that he was responsible for at least 500 grams of cocaine in the conspiracy, the amount necessary for the charge to which he pled. Because he forfeited this argument by failing to challenge the PSR's amount determinations below (he admits this), the sentence is reviewed for plain error. 2 United States v. Jacques, 345 F.3d 960, 962 (7th Cir.2003). We find that while the PSR may support a finding that Pineda-Buenaventura was responsible for at least 500 grams under the evidentiary standards applicable at sentencing, remand is necessary because the sentencing judge made a finding on the record that Pineda-Buenaventura was responsible for less than that amount. This constitutes plain error that affected Pineda-Buenaventura's substantial rights and seriously affected the fairness of the proceedings. See United States v. Garrett, 528 F.3d 525, 527 (7th Cir.2008).

Evidentiary standards at sentencing are not as stringent as those at trial. United States v. Taylor, 72 F.3d 533, 543 (7th Cir.1995). A district court can determine drug quantities attributable to a defendant based only on a preponderance of the evidence, United States v. Salinas, 62 F.3d 855, 859 (7th Cir.1995), and can rely on the findings set forth in a PSR so long as the information has “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). That said, we have encouraged courts to “make conservative estimates [of drug amounts], especially when presented with generalized testimony, as a way to ... approximate drug quantities.” United States v. Henderson, 58 F.3d 1145, 1152 (7th Cir.1995). Here, while the facts set forth in Pineda-Buenaventura's PSR would arguably support a finding that he was responsible for over 500 grams of cocaine under the standard we just described, the sentencing judge's express statement that his relevant conduct involved “less than 500 grams” forecloses any such interpretation and compels remand.

“A sentencing based on an incorrect Guidelines range constitutes plain error and warrants a remand for resentencing, unless we have reason to believe that the error in no way affected the district court's selection of a particular sentence.” United States v. Farmer, 543 F.3d 363, 375 (7th Cir.2008). Here, relevant conduct involving an amount between 400 and 499 grams-the amount expressly referenced by the district judge-would have generated an advisory Guideline range of 46-57 months, not the 60-month minimum set forth in § 841(b)(1). This was plain error that seriously affected the integrity of the proceedings, because Pineda-Buenaventura was sentenced based on an incorrect Guideline range. See Farmer, 543 F.3d at 375; see also United States v. Avila, 557 F.3d 809, 822 (7th Cir.2009)(“It appears that the district court simply applied the wrong range, which constitutes plain error.”).

Remand will provide the district court with an opportunity to clarify its findings regarding the drug amount attributable to Pineda-Buenaventura and to impose an appropriate sentence for that amount. See, e.g., Garrett, 528 F.3d at 530 (finding plain error and remanding to district court when we have no reason to believe its error in the application of the Guideline range did not affect its selection of the particular sentence.”). It is possible that the sentencing judge merely misspoke when making the finding that Pineda-Buenaventura's relevant conduct involved “less than 500 grams,” but there is no way to be sure of this, especially when the PSR on its own terms does not unequivocally establish that Pineda-Buenaventura was responsible for at least 500 grams of drugs. See United States v. Salem, 597 F.3d 877, 888 (7th Cir.2010)(if court relies on PSR to make a finding as to certain conduct, the PSR must actually define that conduct); see also Farmer, 543 F.3d at 375 (We have no reason to believe that the district court would not have selected an even lower sentence if given the opportunity to do so, thus, we must remand.”).


Otoniel Mendoza was another “runner” that delivered cocaine in the conspiracy. A search warrant executed at Mendoza's home yielded 339 grams of cocaine and 9 grams of methamphetamine. Wiretap surveillance revealed that he had delivered an additional 283 grams of cocaine, and made 21 additional...

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