United States v. Davila-Rodriguez ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1596
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LORENZO DAVILA-RODRIGUEZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02 CR 30081—G. Patrick Murphy, Chief Judge.
____________
ARGUED NOVEMBER 1, 2006—DECIDED NOVEMBER 17, 2006
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Before KANNE, EVANS and SYKES, Circuit Judges.
KANNE, Circuit Judge. Lorenzo Davila-Rodriguez pled
guilty to one count of conspiracy to possess with intent
to distribute in excess of five kilograms of cocaine in
violation of 21 U.S.C. § 846 and was sentenced to 262
months’ imprisonment. Davila-Rodriguez challenges his
sentence on appeal. We affirm.
I. BACKGROUND
On July 16, 2002, Davila-Rodriguez was one of 28 people
indicted by a grand jury for a drug conspiracy centered in
the St. Louis, Missouri area. The conspiracy imported
significant quantities of cocaine and marijuana from Mexico
2 No. 06-1596
via El Paso, Texas and New Mexico to St. Louis. The drugs
were repackaged into smaller quantities and re-sold to mid-
level drug dealers. Through its investigation, the govern-
ment determined that the conspiracy was led by Juan
Francisco Gonzalez and Davila-Rodriguez was a top
lieutenant. According to the government, Davila-Rodriguez
directed others in distributing drugs, maintained records
and stash houses, conducted counter-surveillance and
recruited new members. Davila-Rodriguez also participated
in the planning of a murder-for-hire scheme but the scheme
was never carried out.
The district court set a June 8, 2004 trial date in the case.
The government and Davila-Rodriguez discussed the
possibility of a guilty plea during the spring of 2004. The
government sent Davila-Rodriguez a letter dated April 29,
2004 setting May 10, 2004 as the final day for notifying the
government of his intention to plead guilty in order to
qualify for the timely notification reduction pursuant to
Sentencing Guidelines § 3E1.1(b). Davila-Rodriguez notified
the government on May 10, 2004 of an intent to plead guilty
but he never entered into a formal plea agreement with the
government. The government followed up with Davila-
Rodriguez in a May 11, 2006 letter to clarify the extent of
his plea intentions. Davila-Rodriguez informed the govern-
ment of a general intent to plead guilty but nothing more.
In light of Davila-Rodriguez’s response, the government
concluded that it still needed to prepare certain portions of
its case for trial.
Davila-Rodriguez pled guilty on May 24, 2004 without a
formal plea agreement or formal stipulation of facts. He did
not admit to involvement with more than five kilograms of
cocaine, participating in the murder-for-hire scheme, or
having a managerial or supervisory role in the drug conspir-
acy. In the Presentence Investigation Report (“PSR”), the
Probation Officer concluded that Davila-Rodriguez was a
major participant in the drug conspiracy and that he was
No. 06-1596 3
responsible for at least 200 kilograms of cocaine. Davila-
Rodriguez objected to the PSR’s drug calculation and its
conclusion that he was a manager in the conspiracy.
At sentencing, the government presented testimony from
a Drug Enforcement Administration (“DEA”) agent who had
participated in the investigation to substantiate the
information set forth in the PSR. The DEA agent presented
evidence based on both his own personal knowledge and he
also provided summaries of evidence collected by others in
the investigation. The government also refused to make a
motion for a reduction under Guidelines § 3E1.1(b), arguing
that Davila-Rodriguez’s notification of his intent to plead
guilty was not sufficient to qualify for the reduction. The
district court agreed with the PSR’s conclusions that
Davila-Rodriguez was responsible for 200 kilograms of
cocaine and that he played a managerial role in the conspir-
acy. The district court also concluded that it was unable to
consider the one-point reduction under Guidelines
§ 3E1.1(b) because of the government refusal to move for
the reduction. Davila-Rodriguez’s total offense level was
then calculated at 39, his Criminal History Category was I
and his resulting Sentencing Guidelines range was 262 to
372 months. The district court imposed a sentence of 262
months.
II. ANALYSIS
Davila-Rodriguez challenges the district court’s calcula-
tion of the Sentencing Guidelines range and argues that his
sentence is unreasonable. We easily reject Davila-Rodri-
guez’s arguments regarding: (1) the district court’s reliance
on hearsay evidence, (2) the district court’s factual findings
as to the 200 kilograms of cocaine and his managerial role,
and (3) his claim of an unwarranted sentencing disparity in
comparison to his co-defendants pursuant to 18 U.S.C.
§ 3553(a)(6). The district court properly considered other-
4 No. 06-1596
wise reliable hearsay evidence because “[h]earsay is
admissible at sentencing. . . . Sentencing judges are entitled
to use any procedures adequate to reach informed and
accurate decisions.” United States v. Roche, 415 F.3d 614,
618 (7th Cir. 2005) (citing Williams v. New York, 337 U.S.
241 (1949); United States v. Atkins, 29 F.3d 267 (7th Cir.
1994); United States v. Escobar-Mejia, 915 F.2d 1152, 1154
(7th Cir. 1990) (internal quotations omitted)).1 We also
conclude, based on our review of the record, that the district
court’s “sentenc[ing] determinations” as to the 200 kilo-
grams of cocaine and Davila-Rodriguez’s management role
were “based on reliable evidence,” United States v. Noble,
246 F.3d 946, 951 (7th Cir. 2001) (citing United States v.
Pigee, 197 F.3d 879, 889 (7th Cir. 1999); United States v.
Howard, 80 F.3d 1194, 1204 (7th Cir. 1996)), and therefore
the district court did not misapply the Guidelines nor
commit clear error when it made these factual findings.
United States v. Warren, 454 F.3d 752, 762 (7th Cir. 2006)
(citing United States v. Davis, 442 F.3d 1003, 1008-09 (7th
Cir. 2006) (“We review the district court’s application of the
Guidelines de novo and its factual determinations for clear
error.”)). Finally, we reject Davila-Rodriguez’s argument
that his sentence is unreasonable when compared to the
sentences imposed on other defendants in this case because
“the kind of ‘disparity’ with which [18 U.S.C.] § 3553(a)(6)
is concerned is an unjustified difference across judges (or
districts) rather than among defendants to a single case.”
United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.
2006).
Davila-Rodriguez’s argument as to Guidelines § 3E1.1(b)
requires a bit more discussion. Guidelines § 3E1.1(a) allows
a two-level reduction “if the defendant clearly demonstrates
1
We recognize that Davila-Rodriguez raises this argument in
order to preserve it for future appeal in light of the Supreme
Court’s decision in Crawford v. Washington. 541 U.S. 36 (2004).
No. 06-1596 5
acceptance of responsibility.” U.S.S.G. § 3E1.1(a). A defen-
dant, who qualifies for a § 3E1.1(a) reduction, and has an
offense level of 16 or greater before the operation of
§ 3E1.1(a), can qualify for an additional one-level reduction
under § 3E1.1(b) if the defendant provides “timely
notifi[cation to the government] of his intention to enter a
plea of guilty.” U.S.S.G. § 3E1.1(b). The purpose of
§ 3E1.1(b) is to provide an incentive to defendants to
provide a timely notification so as to permit the “govern-
ment to avoid preparing for trial and permitting the
government and the court to allocate their resources effi-
ciently.” Id. The government argues that Davila-Rodriguez’s
less than complete notification of his intentions required it
to continue to prepare for trial. As such, the government did
not save resources and in turn the government determined
that it was inappropriate to move for a reduction under
§ 3E1.1(b). We agree with the government’s conclusion that
Davila-Rodriguez’s less than complete response resulted in
unnecessary preparation for the government and therefore
the government properly refused to bring the § 3E1.1(b)
motion.2
In conclusion, the district court understood the advisory
nature of the Guidelines, properly calculated the Guidelines
2
The government also argues that the decision to bring a mo-
tion under § 3E1.1(b) is at the complete discretion of the gov-
ernment. We do note that Congress amended § 3E1.1(b) in the
PROTECT Act of 2003 to require that a motion be made by the
government stating that the defendant has assisted authorities in
order to qualify for the § 3E1.1(b) one-level reduction. U.S.S.G.
§ 3E1.1(b). This requirement was added by Congress “because
the government is in the best position to determine whether
the defendant has assisted authorities in a manner that avoids
preparing for trial.” U.S.S.G. § 3E1.1 cmt. n.6 (citing Pub. L.
No. 108-21, § 401(g), 117 Stat. 650, 671-72 (2003)). As we need not
consider this argument in order to resolve this case, we shall
leave it for another day.
6 No. 06-1596
range and considered the sentencing factors set forth in 18
U.S.C. § 3553(a). Davila-Rodriguez’s sentence of 262
months’ imprisonment is within the Guidelines range of 262
to 372 months imprisonment and is therefore entitled to a
rebuttable presumption of reasonableness. See United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). We
see no reason to find Davila-Rodriguez’s sentence unreason-
able and therefore it shall be affirmed.
III. CONCLUSION
Davila-Rodriguez’s sentence is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-17-06