United States v. Sanchez, Winston ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3468
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WINSTON SANCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. EV 99-09-CR-Y/H-04--Richard L. Young, Judge.
Argued April 9, 2001--Decided May 9, 2001
Before POSNER, EVANS, and WILLIAMS,
Circuit Judges.
EVANS, Circuit Judge. A jury convicted
Winston Sanchez of conspiracy to possess
with intent to distribute and
distribution of methamphetamine in
violation of 21 U.S.C. sec.sec. 841(a)(1)
and 846. On appeal, he challenges the
sufficiency of evidence presented at
trial, alleges prosecutorial misconduct,
and contends he was improperly sentenced
as a career offender. In reviewing his
conviction, we recount the facts in the
light most favorable to the government.
Indiana resident John Brown became a
regular methamphetamine user in the late
1980’s and eventually began selling drugs
to support his habit. In July 1998
Brown’s sister, Tina Portee, and her
boyfriend, Julius Farris, moved from
Indiana to California. After talking with
Farris, Brown realized that
methamphetamine was cheaper in the Golden
State, and so he decided to travel west
to buy low and return to Indiana to sell
high. He borrowed money to finance his
plan and made two trips to California in
January 1999.
On his third trip to California, Brown
invited James Coomer to travel with him.
Once in California, Brown went to visit
his sister Tina at Winchell’s Donut Shop,
where she worked. There, Tina introduced
Brown to her coworker, Winston Sanchez.
Eventually, Brown and Sanchez got to
chatting, and Brown asked Sanchez to get
him a pound of methamphetamine. Sanchez
agreed, quoting a price of between $8,000
and $9,000 per pound. Sanchez welcomed
Brown to call him at work and also
provided Brown with his pager number. He
then went back into Winchell’s, telling
Brown’s sister that he was trying to help
her brother buy drugs.
Brown later asked his sister if he could
trust Sanchez. Apparently she vouched for
him, because Brown contacted Sanchez
shortly after checking into the Plaza
Hotel. Sanchez arrived as planned, and
Brown gave him $9,000 in cash. Sanchez
took the cash and wandered off for
several hours, returning to the hotel to
inform Brown that he was unable to
contact his supplier. He then went out
again for several more hours, this time
returning with one pound of
methamphetamine. Sanchez also refunded
$1,000 because he had been able to
purchase the drugs at a lower price than
anticipated.
Brown and Coomer returned to Indiana,
sold the drugs, and planned another trip
to California. On this visit, Brown
brought along his girl friend, Tonya
Fithian, and another friend, Jim Miskell.
Brown and his paramour traveled in one
car and Miskell and Coomer in another.
Again, after arriving in California,
Brown called Sanchez from his hotel, gave
him $18,000 in cash, and this time
requested double the quantity of drugs--
two pounds. Again, Sanchez procured the
drugs and delivered them to Brown’s
hotel. Brown and his associates then
headed back to Indiana to sell their
wares.
Weary of road trips, Brown decided to
fly to California for his next trip. He
traveled with his niece. Miskell and
Gregory Farris traveled by car, taking
$36,000 in cash with them. Once in the
Golden State, Brown, accompanied by his
niece and sister, went to Winchell’s to
visit Sanchez. Again, Brown doubled his
request, asking Sanchez for four pounds
of methamphetamine. As before, Sanchez
picked up $36,000 in cash from Brown at
his hotel and returned hours later with
the drugs. During this third visit, the
two also discussed a future sale in which
Sanchez agreed to deliver another seven
pounds of drugs to Brown in a week or
two.
Sanchez then drove Brown and his niece
to the airport, while Miskell and Farris
drove back to Indiana with the drugs. As
they drove through Texas, they were
stopped for a seatbelt violation. Miskell
consented to a search of the car, and the
police found the drugs. With information
obtained after the stop, Brown was
arrested upon his return to Indiana.
Brown, Miskell, and Coomer pled guilty
and testified on behalf of the
government. Sanchez was tried to a jury
before District Judge Richard L. Young
and found guilty of conspiracy. Based on
his criminal history record which
included, among other offenses,
convictions for residential burglary and
possession of marijuana for sale, the
recommended sentencing range was 360
months to life. Judge Young sentenced
Sanchez to the low end of that range.
First, Sanchez challenges the
sufficiency of the evidence presented to
the jury, arguing that his repeat
transactions with Brown constituted
nothing more than a buyer-seller
relationship. A challenge to the
sufficiency of the evidence is an uphill
battle. United States v. Thornton, 197
F.3d 241, 253 (7th Cir. 1999)
("Prevailing on a sufficiency of the
evidence challenge is as unlikely as
hearing the song of a warbler on a
central Chicago street in February, with
or without the aid of a bionic ear."). We
will view the evidence in the light most
favorable to the government, indulging
all reasonable inferences that benefit
the prosecution. United States v.
Gardner, 238 F.3d 878, 879 (7th Cir.
2001). Because great deference is given
to the jury, we will overturn a verdict
"only when the record contains no
evidence, regardless of how it is
weighed, from which the jury could find
guilt beyond a reasonable doubt." United
States v. Phillips, 239 F.3d 829, 842
(7th Cir. 2001) (citing United States v.
Rosalez-Cortez, 19 F.3d 1210, 1215 (7th
Cir. 1994)).
Here, in order to prove a conspiracy,
the government had to present evidence of
an agreement to achieve a criminal
objective separate from the initial
crime--the sale of drugs by Sanchez to
Brown. United States v. Lechuga, 994 F.2d
346, 347 (7th Cir. 1993) (en banc).
However, the agreement need not be
explicit and no overt act is required.
Thornton, 197 F.3d at 254. Rather, we
have noted that in the murky world of
illicit drugs, conspiracies are, by
necessity, loosely-knit associations.
United States v. Smallwood, 188 F.3d 905,
912 (7th Cir. 1999). Thus, a conspiracy
to distribute drugs can consist of an
implicit understanding between the
parties, evidenced by "transactions
involving large quantities of drugs,
prolonged cooperation between the
parties, standardized dealings, and sales
on a credit." United States v. Berry, 133
F.3d 1020, 1023 (7th Cir. 1998). While
these factors are instructive, no single
factor is dispositive. United States v.
Pearson, 113 F.3d 758, 761 (7th Cir.
1997).
Essentially, Sanchez contends that the
evidence was insufficient to support a
conspiracy conviction because his
association with Brown was limited and
the drugs were not sold on consignment.
Regarding his limited involvement, he
argues that the government failed to
present evidence that he helped to
package, conceal, or ship the drugs or
that he had conversations with Brown and
his cohorts about the distribution
process in Indiana. However, as we have
said before, an explicit agreement is not
required. A conspiracy can be established
if an agreement can be inferred from the
course of dealings between Brown and
Sanchez. United States v. Hall, 109 F.3d
1227, 1232 (7th Cir. 1997). Moreover, the
government was not required to show that
Sanchez was involved in every aspect of
the distribution process in order to
establish his complicity. United States
v. Thornton, 197 F.3d at 254 ("One need
not be at the heart of a conspiracy to be
part of its web.").
Here, the government presented evidence
that Sanchez formed a friendship with
Brown’s sister, agreed to help Brown get
drugs, and provided him with both a work
and pager number. Then, on three separate
occasions, Sanchez responded to Brown’s
page, went to Brown’s hotel, picked up
the purchase money, and returned with the
drugs.
The government also presented facts from
which a jury reasonably could infer
mutual trust. For instance, during each
sale, Brown allowed Sanchez to walk away,
unaccompanied, with wads of cash, at one
point as much as $36,000. Moreover, the
quantity of drugs Brown requested
increased exponentially over the course
of only one month--starting at one pound
and increasing to four, with a promise of
an additional seven pounds within a few
weeks. This rapid increase suggests that
Brown found Sanchez to be a trustworthy
supplier, and business was booming. On
his part, Sanchez fostered goodwill and
trust by refunding $1,000 of the purchase
price during the first transaction,
claiming that he had been able to
purchase the drugs at a discount. Then,
after the third sale, he provided the
additional service of driving Brown and
his niece to the airport. Based on this
evidence of repeat sales, the promise of
future sales, standardized dealings, and
the level of trust between the parties, a
reasonable jury could have found that
Sanchez and Brown formed a continuing and
mutually profitable relationship to
distribute drugs.
Sanchez’s second argument that
consignment sales were required to
establish a conspiracy also fails to
carry the day. He contends that because
he was paid up-front for each drug
purchase, he had no stake in the
conspiracy. First, we note that while we
consider several factors to be indicative
of a conspiracy, no one factor is
determinative. Thus, the absence of one
factor does not mean we have to throw out
the jury verdict where the government has
established other factors which point to
the existence of a conspiracy. United v.
Menting, 166 F.3d 923, 929 (7th Cir.
1999). Credit drug sales are not a
required element of a conspiracy to
distribute drugs; rather, they are merely
one factor from which the existence of a
conspiracy can be inferred. See United
States v. Pearson, 113 F.3d 758, 761.
Here, the jury was presented with ample
evidence of a joint venture between
Sanchez and Brown. Thus, the absence of
credit sales does not sway us.
We now turn to Sanchez’s remaining
arguments alleging two forms of
prosecutorial misconduct and a sentencing
error. Citing Brady v. Maryland, 373 U.S.
83, 87 (1963), Sanchez contends that the
government failed to disclose the "true
sentences" received by testifying
codefendants Miskell and Coomer, both of
whom entered into plea agreements and
testified for the government at Sanchez’s
trial. The government, in turn, agreed to
recommend a downward departure of 2
levels for each when their cases were
called for sentencing. The government
disclosed the written plea agreements to
defense counsel and followed the terms of
those agreements. At sentencing, however,
Judge Young departed from the
government’s recommendation and gave both
Coomer and Miskell a more generous
downward departure, resulting in a
sentence for each of 24 months. Sanchez
contends that the government failed to
disclose the true sentence that Miskell
and Coomer received. However, both were
sentenced after Sanchez’s trial. At the
time of the trial, the government did not
know what sentence Judge Young would
impose, and because the government cannot
suppress evidence that does not exist at
the time of the trial, there is no Brady
violation as claimed by Sanchez.
Next, Sanchez attacks statements made by
the government during redirect
examination and closing arguments. He
argues that the prosecution improperly
bolstered the credibility of Miskell and
Coomer by suggesting that they received
"very little" reduction in their
sentences for their testimony at trial.
After reviewing the record, we find no
misconduct. Defense counsel raised the
issue of sentencing and made confusing
statements regarding the plea agreements,
suggesting that the entire sentence
reduction was tied to their agreement to
testify. This was misleading. In
response, the prosecutor provided
clarification, distinguishing between
potential sentence reductions for accept
ing responsibility, playing a relatively
minor role in the conspiracy (both
Miskell and Coomer were drug carriers),
and for cooperation at trial. The
government also stressed that Judge
Young, not the government, would
ultimately determine the sentence of each
cooperating witness. We find that the
government’s statements were invited by
defense counsel’s characterization of the
sentencing process and that they were not
impermissible advocacy.
Finally, Sanchez argues that he was
improperly sentenced as a career
offender. With a nod to Apprendi v. New
Jersey, 120 S. Ct. 2348 (2000), he argues
that the Supreme Court requires that
prior convictions be found beyond a
reasonable doubt by either the district
court or the jury. As we have said
before, this is not so. United States v.
Sandoval, 241 F.3d 549, 550 (7th Cir.
2001). Rather, Apprendi specifically
created an exception for prior
convictions. Id. at 2362-63 ("Other than
the fact of a prior conviction, any fact
that increases the penalty for a crime
beyond the prescribed statutory maximum
must be submitted to a jury, and proved
beyond a reasonable doubt."). Thus, Judge
Young did not err in considering
Sanchez’s prior convictions at
sentencing.
AFFIRMED.