Opinion
CASE NO. 1:11-CR-21-TLS
05-14-2014
UNITED STATES OF AMERICA v. JOSE SOTO
SENTENCING OPINION
The Defendant, Jose Soto, has pled guilty to conspiring with others to distribute crack cocaine in the Northern District of Indiana from February 10, 2010, through January 29, 2011, in violation of 21 U.S.C. § 846. An officer with the United States Probation Office prepared a Presentence Investigation Report (PSR) in anticipation of the Defendant's sentencing. The Defendant objected to the probation officer's assessment of a two point enhancement for maintaining a drug premises. An evidentiary hearing was held to address the factual disputes raised by the Defendant's objection. In addition to the drug premises enhancement, the Government also believes that the Defendant should be assessed two points for possessing a firearm in connection with a drug trafficking offense. This Opinion addresses the application of these two enhancements.
BACKGROUND
The Defendant was charged with drug trafficking offenses arising from an investigation involving numerous individuals and multiple drug distribution conspiracies. In the conspiracy case involving the Defendant, Jarvis Buchanan was identified as the primary cocaine and crack cocaine distributor. In the course of intercepting Buchanan's telephone calls and monitoring his movements, investigators learned that the Defendant was one of the individuals who further distributed Buchanan's cocaine and crack cocaine. The Defendant would buy distribution quantities of drugs from Buchanan, and sell it in smaller quantities. In one intercepted conversation in October 2010, Buchanan asked the Defendant to bring him something that Soto had been holding for him, and told Soto that he would pay him for bringing it. Officers believed that the bag contained drugs. For a time, the Defendant also stored at his residence some of the drugs Buchanan normally kept because Buchanan feared he was under police surveillance. Detective Chad Wagner testified that Buchanan became concerned that police were conducting surveillance on activities at his home, and that the intercepted conversations from November 2010 suggested that Buchanan wanted to get the drugs out of his house and split them up between Soto and another codefendant, Damone Porter, for storage. Detective Wagner testified that Buchanan confirmed this during a proffer. Buchanan was heard complaining to another coconspirator that "I ain't make no money off of this. It seems like I've been losing ever since I ain't been having it with me. It don't seem like been making no money." (Tr. 43.) Wagner testified that Buchanan was upset that after he gave his cocaine to the Defendant and Porter, he was not making the profit he should have been and thought there were problems with weighing the drugs correctly. (Id.)
The Defendant lived on Paulding Road with his mother at the start of the time he was under investigation. Later in the conspiracy, he moved to a trailer on Old Decatur Road, where he was arrested in mid April 2011. Due to the large number of people involved in the drug trafficking investigation, police could not execute search warrants in connection with every person they arrested. The police limited their search warrants to the people they believed would have the largest quantities of drugs and contraband. By the time of the Defendant's arrest, the wire taps were gathering information on higher level suppliers who were dealing in much larger quantities of drugs than the Defendant.
ANALYSIS
"When calculating a sentence, a district court first calculates the proper range under the sentencing guidelines. It then considers that guideline range in addition to any of the other relevant sentencing factors under 18 U.S.C. § 3553(a) before arriving at the appropriate sentence." United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008).
Facts relevant to sentencing should be proved by a preponderance of the evidence. United States v. England, 555 F.3d 616, 622 (7th Cir. 2009); see also United States v. Krieger, 628 F.3d 857, 862 (7th Cir. 2010) (advising that sentencing factors that do not increase the defendant's sentence beyond the statutory range may be found by the court at sentencing by a preponderance of the evidence). "A proposition proved by a preponderance of the evidence is one that has been shown to be more likely than not." United States v. Davis, 682 F.3d 596, 612 (7th Cir. 2012). With respect to sentencing,
a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come. A corollary to this general principle is the rule that a sentencing judge may consider relevant information without regard to the rules of evidence provided that the information has a sufficient indicia of reliability to support its probable accuracy.United States v. Hankton, 432 F.3d 779, 789 (7th Cir. 2005) (quotation marks, ellipses, and brackets omitted). Reliability is determined based on the totality of evidence before the court, and a sentencing determination may be premised on any basis that is supported by the record. Id. at 790.
A. Drug Premises Enhancement-§ 2D1.1(b)(12)
In Peugh v. United States, ---U.S. ----, 133 S.Ct. 2072, 2088, (2013), the Supreme Court held that "a court's use of the Guidelines in effect at the time of sentencing was an ex post facto violation, as the Guidelines had changed to the detriment of the defendant after he committed his offenses." The sentencing enhancement under U.S.S.G. § 2D1.1(b)(12) became effective on November 1, 2010. The Court keeps this date in mind as it considers application of the enhancement.
Pursuant to Guideline § 2D1.1(b)(12), the offense level is increased by two levels if "the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance." The application notes to this section provide that Subsection (b)(12) "applies to a defendant who knowingly maintains a premises . . . for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution." U.S.S.G. § 2D1.1, cmt. n.17. The application notes explain that "[m]anufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant's primary or principal uses for the premises, rather than one of the defendant's incidental or collateral uses for the premises." Id.
The Defendant asserts:
It was incumbent upon the Government to make a showing of how frequently the premises were used by Defendant for manufacturing or distributing a controlled substance, as well as how frequently those premises were used by Defendant for lawful purposes. A review of the transcript of the hearing shows that the Government failed to make an explicit showing on these issues. It is only by implication . . . that it becomes clear that the only reasonable conclusion to reach is that for the vast majority of the time, Defendant used the residential premises for lawful purposes, that is, for the purpose of living there with his family and relatives.(Def. Br. 4, ECF No. 357.) This argument focuses on one factor, the frequency of the Defendant's use of the premises for drug-related purposes. But the "frequency-of-use factor" is to be considered in tandem with the significance of the illicit activities conducted on the premises when the premises can, by definition, be used for lawful purposes 100% of the time. United States v. Flores-Olague, 717 F.3d 526, 534 (7th Cir. 2013). For example, when the premises is also a primary residence, the factors to consider include not only the frequency of use, but a variety of other factors germane to the scope of illicit activities, such as the quantities dealt, customer interactions, storage of tools of the trade, maintenance of business records, and acceptance of payment. Flores-Olague, 717 F.3d at 534 (applying enhancement where defendant's drug trafficking was an everyday occurrence and livelihood, he sold drugs from and stored drugs in the home on a daily basis, he kept various tools of the drug trade inside the home, and he exercised authority over others living in the home); see also United States v. Sanchez, 710 F.3d 724, 731 (7th Cir. 2013), vacated on other grounds, 134 S. Ct. 146 (2013) (noting that a sentencing court considering the enhancement should look to both the frequency in which prohibited uses occurred on the premises and whether those uses were significant in scope to determine whether the prohibited purpose can be fairly described as a "primary or principal" use of the premises); United States v. Miller, 698 F.3d 699, 707 (8th Cir. 2012) (holding that enhancement applies when a defendant uses the premises for the purpose of substantial drug trafficking activities even if the premises is also the family home).
Considering the frequency and significance factors in tandem, the Court concludes that the drug premises enhancement should not apply. There is evidence to support the conclusion that the Defendant was holding drugs for the Defendant in October 2010. But this was before the effective date of the enhancement. The Defendant stored drugs for Buchanan after he became concerned that he was under police surveillance, but this was not a long term arrangement. Based on the intercepted calls, it is more likely than not that the Defendant kept drugs inside his house as he dealt it out in smaller quantities, and perhaps held the cash proceeds in the house as well. However, the Defendant was not storing large quantities, interacting with customers at the house, receiving payments, or manufacturing drugs. In fact, the Defendant readily changed his place of residence during the conspiracy, suggesting that the house itself was not a significant factor in carrying out his drug trafficking. There is no evidence in the record regarding the location of any tools of the drug trade or business records. Any such items could have just as likely been kept in the Defendant's vehicle. Nor was the Defendant's drug dealing his primary source of livelihood. The Defendant's use of the home to facilitate his drug trafficking was limited in scope and cannot be described as the primary or principal use of the premises. Rather, the use of his mother's home to keep his drugs and any proceeds was merely incidental and collateral to its lawful purpose. The Court sustains the Defendant's objection to the drug premises enhancement.
B. Gun Enhancement-§ 2D1.1(b)(1)
Under the Guidelines, the base offense level for drug trafficking offenses is increased by two levels "if a dangerous weapon (including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1). The enhancement is intended to account for the "increased danger of violence when drug traffickers possess weapons." U.S.S.G. § 2D1.1, Application Note 3. The government bears the burden of proving by a preponderance of the evidence that the Defendant possessed the firearm. The government need not prove "a connection between the firearm and the offense, only that the weapon was possessed during the offense." United States v. Rollins, 544 F.3d 820, 837 (7th Cir. 2008) (citing United States v. Yanez , 985 F.2d 371, 378 (7th Cir. 1993)). If the government satisfies this standard, the burden shifts to the defendant to show that it was "clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1, Application Note 3. The enhancement would not apply, for example, if a defendant was arrested at his residence and had an unloaded hunting rifle in the closet.
Here, the police did not search the Defendant's residence when they arrested him, and there was no gun found on his person. Thus, the Government relies on statements the Defendant made to Codefendant Buchanan during the course of the drug conspiracy to establish the Defendant's possession of a firearm. On November 11, 2010, Porter informed Buchanan that cocaine was missing from the box in Porter's basement. The Defendant told Buchanan that he could get him a firearm when Buchanan began talking about retribution for the person responsible for stealing the cocaine. During his proffer, Buchanan confirmed that the Defendant provided him with a gun, which he later returned to the Defendant. Still later, the Defendant complained to Buchanan that he was in debt to a supplier after fronting marijuana for which he did not get paid. He discussed his need for firearms as protection in connection with the debt.
To challenge the application of the enhancement, the Defendant characterizes his intercepted statements to Buchanan as mere puffery and bravado, and relies heavily on the fact that the police did not recover a firearm. The Defendant asserts that his words were merely an attempt to ingratiate himself with Buchanan. The Court has reviewed the transcripts of the intercepted calls, and finds that it is more likely than not that the Defendant actually possessed a gun when he offered to get one for Buchanan on November 11, 2010. Buchanan asked, "[y]ou still got that uh glock." (Gov't Ex. 1, p. 556 of 14970.) The Defendant responds, "[s]omewhere around here packed up somewhere." (Id.) Buchanan states that he needs it, and explains that his "stuff" got stolen from Porter's house. The Defendant tells Buchanan that he should have trusted him with everything instead of Porter. (Gov't Ex. 1, P. 557 of 14970.) When the Defendant found out how much was stolen, he acknowledges that it is a "tremendous loss" and tells Buchanan he will "see if I can't get a couple burners lined up though." (Gov't Ex. 1, p. 559 of 14970; Tr. at 46.) Buchanan responds, "[h]ell yeah. I'm talking about like tomorrow or Saturday." (Id.) The Defendant says he will make a few phone calls that night. They continue to talk about who was potentially involved in the theft, including Porter. The Defendant tries to convince Buchanan that it had to be an inside job, that Buchanan had "no other options" and it was "goon time." (Gov't Ex. 1, p. 560 of 14970.) After further conversation, they wrap up with the following exchange, as transcribed by Detective Adalberto Martinez:
[Jarvis Buchanan]: What they do with that one your one heater?(Gov't Ex. 1, p. 563 of 14970.) Detective Wagner testified the "yoppers" was not a recognized term, but that choppers refers to firearms. (Tr. at 47 (testifying that "this would be maybe one of those instances where our person that was taking the call kind of maybe misheard and there was a typo. My opinion he's probably saying choppers; refers to gun.") Based on the intercepted conversations, investigators arranged for Porter to receive a warning about the potential threat to his life.
[Jose Soto]: Shit. Sold the bitch.
JB: (UI) Huh?
JS: Sold that mother fucker.
JB: Sold it.
JS: Yeah.
JB: Ohh. Man.
JS: Let me see. Let me see if I can't grab no other ones though. You need them yoppers though nigger.
JB: Yeah. Just let me know.
JS. Alright.
On November 23, 2010, the Defendant is recorded in a conversation telling Buchanan that he went to get a "burner" the previous day. (Gov't Ex. 1, p. 2627 of 14970.) The conversation leading up to November 23 revealed that the Defendant owed a supplier money for marijuana that he fronted to associates of Buchanan. The Defendant declares that he is "bout to go get me a burner cause these niggers talkin reckless over their people." (Id., p. 2628 of 14970.) He explains that, because he is not staying with his mom anymore, but "they" know where his mom lives, he has to "drop this pistol off to my brother, and I gotta get me one for myself. Cause they know what car I be drivin." (Id.) The Defendant said that he told the marijuana supplier he could work off the debt, but that the supplier was not open to that, so the Defendant told him to do whatever he had to do. (Id., p. 2629 of 14970 (stating that he basically told the supplier "you wanna do somethin let's do it. I like pistol playin").) The Defendant continued to urge Buchanan to get his associate to pay the Defendant so he could, in turn, pay his supplier.
The Court finds that this evidence is sufficient to establish, by a preponderance of the evidence, that the Defendant possessed a gun. The Defendant argues that his use of racial slang with Buchanan shows that his talk about a gun was an "attempt by a Hispanic Defendant to try to show solidarity with others of a different cultural background." (Def. Br. 3.) The Court is not convinced that the Defendant's chosen manner to address Buchanan makes it any more or less likely that his talk of getting a gun was an expression of his true intentions. When talking to Buchanan, the Defendant repeatedly and consistently referred to Buchanan as "nigger" or "nigga." Nearly every recorded conversation between Buchanan and the Defendant that this Court reviewed contains the Defendant's use of these words.
The Defendant argues that the record is devoid of any person who stated that they saw the Defendant with a gun. However, this is not entirely accurate. During his cooperation with the Government, Buchanan confirmed that the Defendant supplied him with a firearm for a period of time. Even if the Defendant merely possessed the firearm for a brief time and for the purpose of handing it over to Buchanan, the enhancement could apply. "Possession" includes "firearms possessed by coconspirators in furtherance of the conspiracy that the defendant could have reasonably foreseen." United States v. Strode, 552 F.3d 630, 635 (7th Cir. 2009) (citing United States v. Acosta, 534 F.3d 574, 588 (7th Cir. 2008)).
The Defendant asks the Court to discredit the statements of Buchanan because he made them in an attempt to receive a benefit from the Government, but does not suggest how these statements regarding a lower level dealer helped Buchanan, or provide any instances where Buchanan's statements did not corroborate information from the intercepted conversations. There is nothing inherently unbelievable about Buchanan's admission. Moreover, the discussion concerning the gun was very specific and discrete. Buchanan asked about a particular gun that he knew the Defendant at least previously possessed, a Glock, which the Defendant acknowledged having. When the Defendant realized that Buchanan actually desired to obtain a gun for a specific purpose—to do "something" about the theft of his cocaine—the Defendant advised that he sold the gun, but could make some phone calls to find another one. It is unlikely that such specific talk would occur for a nonexistent item, or that Buchanan would admit that he received a gun for this purpose if there was, in fact, no exchange.
Even without considering the gun the Defendant obtained for Buchanan, the Court is satisfied that the Defendant possessed a firearm during the offense. The plain interpretation of the Defendant's own words is that he actually obtained a gun. He referred to "this pistol" when he told Buchanan that he was giving it to his brother to protect himself and his mother from potential retribution from the unhappy supplier, with the Defendant then seeking another firearm for his own protection. The Defendant had reason to discuss the matter with Buchanan because he thought Buchanan could convince the person in debt to the Defendant to pay, thereby allowing the Defendant to pay his own supplier. The Defendant's statements provide adequate grounds to conclude that he possessed a weapon during the conspiracy. See United States v. Whittler, 528 Fed. Appx. 623, 626 (7th Cir. 2013) (stating that an intercepted telephone call where defendant admitted to having a "banger" gave the court an independent ground to conclude that the defendant possessed a weapon during the conspiracy); Cf. United States v. Johnson, 643 F.3d 545, 551-52 (7th Cir. 2011) (finding that intercepted calls discussing crack cocaine provided reliable information to make drug quantity finding). Implicit in the Defendant's objection is the argument that physical recovery of a firearm was necessary. In Whittler, the defendant argued that physical recovery of guns, drugs, or both was necessary to apply the § 2D1.1(b)(1) enhancement. The Seventh Circuit stated, "[N]othing in the language of the guideline, the relevant commentary, or the decisions of this court supports his position." 528 Fed. Appx. at 627; see also United States v. Smith, 280 F.3d 807 (7th Cir. 2002) (stating that defendant's argument that gun enhancement was based on unreliable evidence because police did not find any weapons on his person or at the house on day of his arrest was "a red herring"). As the Whittler court noted, precedent exists to conclude that statements or testimony about gun possession are adequate to support the Guideline increase. See United States v. Moreland, 703 F.3d 976, 990 (7th Cir. 2012) (upholding an enhancement based on statements that the defendant's sister followed his instructions to hide gun and drugs before police arrived); United States v. Strode, 552 F.3d 630, 632, 636 (7th Cir. 2009) (concluding that testimony from coconspirators who saw defendant with gun was sufficient to support upward adjustment even though no gun or drugs were seized directly from defendant). The court explained that, to the extent that the Defendant was asking the court to impose a higher evidentiary standard for applying § 2D1.1(b)(1), it was rejected. Whittler, 528 F. App'x at 627. Here, the fact that no firearm was recovered by police is adequately explained by law enforcement's decision not obtain a search warrant for the Defendant's residence. Nor is there any evidence that police searched the Defendant's vehicle. The fact that the firearm is not in police custody is thus not countervailing evidence that calls the reliability of the recorded conversations into dispute.
Based on the specific references to a Glock, burners, yoppers/choppers, discussed within the context of needing to respond to the theft of a substantial quantity of cocaine, and Buchanan's confirmation that he indeed obtained a firearm from the Defendant, it is more likely than not that the Defendant possessed a firearm in the course of the drug conspiracy. Later, the Defendant explained that his own predicament required that he obtain another "burner" because he was giving one "pistol" to his brother to help protect his mother in the house where he used to reside with her. He said that he still needed another pistol because the people he believed would be "pistol playing" knew what car he drove. Again, these conversations establish that it is more likely than not the Defendant possessed a firearm in the course of the drug conspiracy. The burden has thus shifted to the Defendant to show that it was clearly improbable that the weapon was connected to the offense. The Defendant cannot hope to establish that this was clearly improbable, as the purposes for possessing the guns was directly linked to drug trafficking. The very purpose for the enhancement is to account for the increased danger of violence when drug traffickers possess weapons, and the potential for such violence existed here.
For these reasons, the Court finds that a two level enhancement under § 2D1.1(b)(1) should be included in the calculation of the Defendant's offense.
CONCLUSION
The PSR will be revised for the reasons stated above. The Defendant's offense level will not include an enhancement pursuant to § 2D1.1(b)(12), but will include an enhancement pursuant to § 2D1.1(b)(1). The Court confirms the telephone status conference scheduled for Thursday, May 15, 2014, at 10:00 AM.
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THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION