United States v. Robert Smith ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NICOLAS J. ACOSTA, ERNESTO ESTRADA III,
GREGORIO M. ACOSTA, JR., JORGE N. BARRAGAN, JR.,
PEDRO ZAMORA, FLORENTINO CASTILLO,
DONALD K. FAIRBANKS, and ROBERT G. SMITH,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 05 CR 39—Barbara B. Crabb, Chief Judge.
____________
ARGUED APRIL 30, 2007—DECIDED JULY 15, 2008
____________
Before ROVNER, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. The eight defendants in this case
participated in what we have previously described as a
“long-running” conspiracy involving the distribution of
“vast amounts of crack cocaine” by the Latin Kings gang
on the Lac Courte Oreilles Reservation in Northern Wis-
2 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
consin. United States v. Acosta, 474 F.3d 999, 1000 (7th Cir.
2007). Four of the defendants were convicted following
a jury trial; the others pleaded guilty. In addition to vari-
ous individual issues raised on appeal, all of the defen-
dants (with the exception of Robert Smith, whose attor-
ney filed an Anders brief) challenge the district court’s
sentencing findings regarding drug quantity. We affirm.
I. Background
On March 22, 2005, a grand jury sitting in the Western
District of Wisconsin returned an eight-count indictment
against 11 defendants stemming from their involvement
in the Latin Kings crack distribution network on the Lac
Courte Oreilles (“LCO”) Reservation in Sawyer County,
Wisconsin. The case was assigned to Chief Judge Barbara
Crabb, who also presided over the prosecution of other
defendants involved in the LCO Latin Kings drug organi-
zation. See Acosta, 474 F.3d at 999-1000.
Count 1—the centerpiece of the indictment—accused
John A. Radermacher, Pedro Zamora, Donald K. Fairbanks,
Andre R. Lasieur, Robert G. Smith, Gregorio M. Acosta,
Jr., Nicolas J. Acosta, Jorge N. Barragan, Jr., Florentino
Castillo, Ernesto Estrada III, and Nicholas W. Thayer of
conspiracy to distribute cocaine and cocaine base in excess
of 50 grams. The drugs were obtained primarily from
sources in Milwaukee and transported to the reservation
for distribution and resale by members of the Latin Kings
gang operating there. Some of the incoming drugs were
handled as “the Nation’s Dope,” that is, drugs obtained
and sold by the Latin Kings with some of the proceeds
returning to the gang.
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 3
06-1963, 06-2268, 06-2333 & 06-2594
Because of the sprawling scope of this case, the number
of defendants, and the variety of issues each raises on
appeal, we will initially provide only a brief, general
overview of the conspiracy, leaving the necessary
details for our analysis of the arguments made by the
individual defendants. Beginning in January 1999 and
running through December 2003, the Milwaukee Latin
Kings gang established and maintained a crack distribu-
tion network on the LCO Reservation in collaboration
with members of the LCO Latin Kings. Gang members
and nonmember coconspirators obtained powder and
crack cocaine from various sources—mainly suppliers in
Milwaukee but also some in Minneapolis—and trans-
ported the drugs to the reservation for “rocking up” (if
the cocaine was not already in crack form), packaging,
and resale from various drug houses.
The two LCO drug houses central to the charged con-
spiracy were residences maintained by Yvonne Dennis
(together, at various times, with certain of the charged
coconspirators) and Gregorio Acosta, Jr. (a “boss” in the
Milwaukee Latin Kings and “regional officer” in the LCO
Latin Kings), and his wife, Spring Lasieur Acosta. Dennis,
Spring Acosta, and two other women figuring prom-
inently in the conspiracy, Candace Radermacher (wife of
John Radermacher) and Jacqueline Martinson (girlfriend
of Jorge Barragan), were charged separately.
The illicit activities of the LCO Latin Kings crack con-
spiracy were facilitated by an organizational structure
typical of the Latin Kings—led by an “Inca,” with a
“Cacique” as the second-in-command, and an Enforcer
who addressed violations of Latin Kings law. “Shorties”
were adolescents too young to be full-fledged gang mem-
4 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
bers, but who could work their way up to membership
by doing the bidding of more senior members of the
gang. The core gang members would hold semiformal
meetings (or “demos”) at which they would discuss
(among other things) the details of the drug distribution
operation and receipt of its proceeds.
II. Analysis
A. Gregorio Acosta, Jr.
Gregorio Acosta, Jr., was charged with conspiracy to
distribute cocaine and cocaine base and several counts of
distribution of cocaine and cocaine base. He pleaded
guilty to the conspiracy count and was sentenced to 339
months, the bottom of the advisory sentencing guide-
lines range of 360 months to life, minus 21 months he
spent in state prison for related drug-trafficking conduct.
A “boss” in the Milwaukee Latin Kings, Gregorio sup-
plied powder and crack cocaine to the LCO Latin Kings
organization from early in January 1999 until his impris-
onment on state drug charges in January 2001. He also
maintained a residence on the LCO Reservation from
which crack was sold to retail customers. After his release
from state prison in October 2002, he resumed crack-
cocaine trafficking (there was evidence that he remained
involved in the conspiracy while he was in prison), and
this continued until his arrest on the charges in this case
in August 2003. Apart from the basic concessions made
in his guilty plea, the specifics of Gregorio’s role in the
conspiracy—and hence, the evidentiary basis for the
district court’s drug-quantity findings, which he chal-
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 5
06-1963, 06-2268, 06-2333 & 06-2594
lenges—were established largely through the statements
and trial testimony of his wife, Spring Lasieur Acosta.
Spring, a “Latin Queen,” was involved in the LCO Latin
Kings drug conspiracy essentially from its inception.
In 1997 Spring Lasieur met and started dating cocon-
spirator Jorge Barragan, a member of the Milwaukee
Latin Kings. Through him she met coconspirator Florentino
Castillo, also a Latin Kings gang member, and cocon-
spirator Ernesto Estrada III, Barragan’s cousin. In late 1998
or early 1999, Barragan, Castillo, and Estrada began
making regular trips to the LCO in connection with the
establishment of a “region” between the Milwaukee and
LCO Latin Kings for the distribution of crack cocaine.
Gregorio Acosta, his brother Nicolas Acosta, Barragan, and
Castillo (among others) were initial “regional members” of
the LCO Latin Kings “region.” Spring did not meet
Gregorio, her future husband, until mid-1999; by then
the Milwaukee Latin Kings had established a foothold
on the LCO Reservation and, with LCO Latin Kings
members, were distributing large amounts of crack there.
From January 1999 to August 1999, Spring made reg-
ular drug-running trips with Estrada in furtherance of
the LCO crack-distribution conspiracy, traveling from
Milwaukee to the reservation at least twice a week with
between one and four ounces of “mostly formed co-
caine—crack cocaine” and, on some trips, large quantities
of marijuana. Gregorio moved from Milwaukee to the
LCO sometime in 1999, and in August 1999 Estrada
introduced Gregorio to Spring. At that point, Spring
testified, Gregorio had already been involved in sup-
plying cocaine to the LCO Latin Kings for some time.
From September 1999 to January 2000, Spring and
6 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
Gregorio, occasionally accompanied by Estrada, traveled
between Milwaukee and the LCO two or three times a
week, bringing between three and four ounces of powder
and crack cocaine to the reservation on each trip. In
December 1999 Spring became pregnant with Gregorio’s
child, and the couple married in 2000.
Spring testified that from January 2000 to January 2001,
Gregorio traveled to Milwaukee at least every three
weeks or so, returning to the LCO with between one
and four ounces of cocaine on each trip. Spring and
Gregorio’s residence on the LCO served as a drug house
from which they, Castillo, and Nicolas Acosta would
prepare, package, and sell crack cocaine to users on the
reservation. In March 2000 Gregorio was arrested in
Washburn County, Wisconsin, in possession of 30 grams
of crack. He was released on bond and resumed cocaine
trafficking. In January 2001 he was convicted and sen-
tenced to prison on state drug charges stemming from
the Washburn County arrest. He was released from prison
in October 2002 and resumed selling crack cocaine with
Spring, resupplying as needed from Milwaukee. This
activity continued until his arrest in August 2003.
Various aspects of Spring’s testimony were cor-
roborated by other coconspirators—most notably, ac-
cording to the district court, Candace Radermacher,
Donald Fairbanks, and Sundown Doney (a member of
the LCO Latin Kings), among others. Gregorio’s presen-
tence report (“PSR”) also described controlled buys of
crack from Gregorio at the Lasieur-Acosta drug house
in July 2003, and the recovery of a quarter kilogram of
cocaine that had not yet been “rocked up” (converted
into crack) in their house at the time of Gregorio’s
August 2003 arrest.
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 7
06-1963, 06-2268, 06-2333 & 06-2594
Gregorio argues on appeal that the district court improp-
erly denied him the two-level sentencing guidelines
adjustment for acceptance of responsibility, see U.S.S.G.
§ 3E1.1, because the court considered his objections to
the PSR’s relevant-conduct analysis to be frivolous. The
government initially recommended that the court con-
sider Gregorio’s acceptance of responsibility but with-
drew that recommendation based on his objections to the
PSR. The district court’s decision to deny credit for accep-
tance of responsibility is reviewed for clear error. United
States v. Lister, 432 F.3d 754, 758 (7th Cir. 2005).
The commentary to the acceptance-of-responsibility
guideline suggests that “a defendant who falsely denies,
or frivolously contests, relevant conduct that the court
determines to be true has acted in a manner inconsistent
with acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt.
n.1(a). We have said that “a defendant should not be
denied a reduction for acceptance of responsibility when
he only challenges the legal conclusion that should be
drawn from facts that he has admitted.” United States v.
Booker, 248 F.3d 683 (7th Cir. 2001) (citing United States v.
Purchess, 107 F.3d 1261, 1266 (7th Cir. 1997) (emphasis
added)). Further, in Purchess, we observed that “where
the defendant remains otherwise silent as to relevant
conduct but his lawyer challenges certain facts alleged
in the PSR, we think the court should attempt to ensure
that the defendant understands and approves the argument
before attributing the factual challenges in the argument to
the defendant for purposes of assessing acceptance of
responsibility.” 107 F.3d at 1268. We have recently empha-
sized that Purchess is best understood as requiring the
sentencing court to attempt to clarify the defendant’s
8 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
understanding of relevant-conduct objections only where
there is reason to believe the defendant might be confused
or disagrees with counsel. See United States v. Chen, 497 F.3d
718, 720-21 (7th Cir. 2007); Lister, 432 F.3d at 760.
Gregorio’s objections to the PSR’s relevant-conduct
determination were factual, not legal; he challenged the
drug-quantity amounts attributable to him during differ-
ent phases of the conspiracy. Furthermore, there is
nothing in the record to indicate he was confused about
or disagreed with his counsel’s objections to the PSR’s
relevant-conduct analysis. Judge Crabb asked him if he
had read the PSR and its addendum, and inquired wheth-
er there was anything he objected to that his attorney had
not already raised in his written objections. Gregorio
confirmed that he had read the documents and had nothing
to add. Following lengthy arguments from the government
and Gregorio’s counsel, Judge Crabb credited Spring
Acosta’s testimony, found it corroborated by
coconspirators, and held that a “reasonable and fair
estimate” of Gregorio’s relevant conduct involved “well
in excess of 1.5 kilograms of cocaine base or crack cocaine.”
As we will explain in a moment, this finding is amply
supported by the record. Accordingly, it was not clear
error for the district court to conclude Gregorio had
frivolously contested relevant conduct and deny his
request for the two-level adjustment for acceptance of
responsibility.
Gregorio also claims several due-process violations based
on the district court’s determination of drug quantity.
Gregorio’s argument rests in part on Judge Crabb’s refer-
ence to having sat through the trial of certain other de-
fendants and heard substantial evidence to support a
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 9
06-1963, 06-2268, 06-2333 & 06-2594
finding of 1.5 kilograms of crack. Gregorio takes this to
mean that the district court relied on information unavail-
able to him and thus deprived him of notice and the
opportunity to respond. The government notes in response
that before sentencing, Gregorio was provided all the
excerpts of trial testimony on which the government
intended to rely for the determination of relevant conduct.
Gregorio acknowledges this, but suggests that Judge
Crabb’s comment might mean she considered other
parts of the trial testimony not available to him. This is
sheer speculation, and in any event, of no consequence;
the district court does not violate the due-process rights
of a coconspirator who pleads guilty by relying, for sen-
tencing purposes, on evidence presented at the trial of
coconspirators. Gregorio was on notice that under the
sentencing guidelines, he would be held responsible for
the relevant conduct of his coconspirators if reasonably
foreseeable to him (more on this point later). See U.S.S.G.
§ 1B1.3(a)(1)(B). We reject this aspect of Gregorio’s
due-process argument.
Gregorio also contests the reliability of the evidence
related to drug quantity, framing his argument as a
due-process challenge. See United States v. McEntire,
153 F.3d 424, 435-37 (7th Cir. 1998); United States v.
Townsend, 73 F.3d 747, 751 (7th Cir. 1996) (“[A] defendant
has a due process right to be sentenced on the basis of
accurate information.”). “Due process is specifically
satisfied when the district court determines the quantity
of drugs attributable to a defendant by a preponderance
of the evidence . . . [using information that] has ‘suf-
ficient indicia of reliability to support its probable accu-
racy.’ ” Townsend, 73 F.3d at 751 (quoting United States v.
10 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
Ewers, 54 F.3d 419, 421 (7th Cir. 1995) (other citations
omitted)). Here, the district court relied primarily on the
trial testimony of Spring Lasieur Acosta, as corroborated
by Candace Radermacher and other coconspirators.
(Spring Acosta pleaded guilty and was herself held re-
sponsible for more than 1.5 kilograms of cocaine. See
Acosta, 474 F.3d at 1001.) This sort of sentencing infor-
mation plainly carries “sufficient indicia of reliability” to
satisfy due-process minimums. We think Gregorio is
using the language of due process to make what is really
a challenge to the factual sufficiency of the district
court’s drug-quantity determination.
The district court’s factual findings regarding drug
quantity are reviewed under the deferential clear-error
standard. United States v. Cross, 430 F.3d 406, 410 (7th Cir.
2005). A factual finding is clearly erroneous “only when,
on the entire evidence, the reviewing court is left with
the definite and firm conviction that a mistake has been
committed.” United States v. Johnson, 227 F.3d 807, 813
(7th Cir. 2000) (quotations omitted). Drug quantity for
purposes of determining the applicable sentencing guide-
line may be established by the use of reasonable estimates.
United States v. Joiner, 183 F.3d 635, 640 (7th Cir. 1999). In
the case of jointly undertaken criminal activity, the sen-
tencing guidelines direct that the relevant-conduct deter-
mination should take account of “all reasonably foresee-
able acts and omissions of others in furtherance of
the jointly undertaken criminal activity,” see U.S.S.G.
§ 1B1.3(a)(1)(B), whether or not charged as a conspiracy.
Booker, 248 F.3d at 688. This requires the sentencing
court to “assess the reasonable foreseeability of [the drug
sales of other conspiracy members], inquiring into the
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 11
06-1963, 06-2268, 06-2333 & 06-2594
scope of the criminal activity the defendant agreed to
undertake jointly.” United States v. Brumfield, 301 F.3d
724, 733 (7th Cir. 2002).
The government asserted (consistent with the PSR’s
recommendation) that Gregorio should be held responsible
for more than 1.5 kilograms of crack, for a base offense
level of 38, see U.S.S.G. § 2D1.1 (2005), based on Spring
Lasieur Acosta’s testimony about the amounts trafficked
during several distinct time periods before Gregorio was
imprisoned on state drug charges in January 2001. The first
time period commenced in January 1999 when the Latin
Kings first began to run cocaine from Milwaukee to the
LCO for distribution on the reservation and ran through
August 1999 when Spring was introduced to Gregorio
and began to transport drugs with him. Spring testified
that she and Estrada made at least two trips per week
during this time frame, carrying between one and four
ounces of “mostly formed cocaine—crack cocaine.” Using
an average of two ounces per trip and approximately
64 trips from January to August 1999, the total for this
time period was 3,628 grams of crack cocaine.
The second discrete time period identified by the gov-
ernment was September 1999, after Gregorio and Spring
met, to January 2000. Spring testified that during this
time period she and Gregorio, sometimes accompanied
by Estrada, ran drugs from Milwaukee to the LCO ap-
proximately twice a week, carrying three to four ounces
of both powder and crack cocaine each time. Using the
low-end estimate of three ounces and assuming half
was crack cocaine, the total for 32 trips (approximately
16 weeks, two trips per week) was 1,360 grams of crack
cocaine.
12 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
The third time period in the government’s relevant-
conduct calculation was January 2000 through Janu-
ary 2001 when Gregorio was convicted on state drug
charges and began serving a short prison sentence. Spring
testified that during this time period, Gregorio went to
Milwaukee every three weeks and returned with between
one and four ounces of crack and powder cocaine each
time. She also testified that their house on the LCO
was being used as a drug house from which crack cocaine
was regularly sold; cocaine that arrived on the LCO as
powder was converted to crack and resold there. Using
a conservative estimate of two ounces per trip over 17
trips totaled just over 960 additional grams of crack
cocaine.
These quantities together amount to approximately
5,948 grams of crack cocaine, far exceeding the 1.5 kilo-
grams required for offense level 38, as found by the
district court. Even including only those quantities attrib-
utable to Gregorio personally (as opposed to coconspirators
whose trafficking activity was reasonably foreseeable to
him) would total more than 2,320 grams, still well in excess
of the 1.5 kilograms needed for offense level 38. These
calculations are extraordinarily conservative, omitting
entirely the drug quantities Gregorio trafficked after his
release from prison in October 2002, for which there
were no specific estimates but undoubtedly were attrib-
utable to him as relevant conduct.
Gregorio cites a number of infirmities in the record
evidence underlying the district court’s relevant-conduct
determination. First, he points to inconsistent statements
Spring made regarding precisely when she started trans-
porting cocaine to the LCO. This is insufficient to under-
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 13
06-1963, 06-2268, 06-2333 & 06-2594
mine the district court’s findings. By specifically cred-
iting Spring’s testimony, Judge Crabb implicitly disre-
garded inconsistencies as to some of its particulars,
which is not at all uncommon.
Second, Gregorio argues there is no basis to attribute the
amounts trafficked before August 1999 to him. To the
contrary, Gregorio’s involvement in crack-cocaine traffick-
ing at the LCO during this time period was established
by the following evidence: (1) his status as a “boss” in the
Milwaukee Latin Kings and early role as a “regional
officer” of the Milwaukee/LCO Latin Kings “region”
established for the purpose (among others) of crack
distribution on the reservation; (2) Spring’s statements
about Gregorio’s preexisting involvement in the crack
distribution network at the LCO before they met in Au-
gust 1999; and (3) Gregorio’s arrest in Sawyer County
in June 1999 in possession of $3,000 in cash during a
traffic stop by Hayward, Wisconsin police. This is
strong circumstantial evidence of his involvement in the
conspiracy prior to August 1999, making the amounts
trafficked by coconspirators during that time period
reasonably foreseeable to him. In any event, Judge Crabb
did not attribute the drug quantities from all of 1999 to
Gregorio. She began her estimation of relevant conduct
by assuming he was involved in the conspiracy from
June 1999 until “early 2001,” when he went to prison. Even
leaving aside the January-August 1999 quantities in
their entirety, the total remains well in excess of 1.5 kilo-
grams of crack cocaine.
Finally, Gregorio argues that Spring provided vague
and potentially conflicting information about the amount
of crack versus powder cocaine transported from Mil-
14 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
waukee to the reservation. Again, the district court ex-
plicitly credited Spring’s testimony, resolving any dis-
crepancies in favor of accepting the government’s argu-
ment and rejecting Gregorio’s. We “defer[ ] to the district
court’s determination of witness credibility, which can
virtually never be clear error.” United States v. Noble, 246
F.3d 946, 953 (7th Cir. 2001). The estimating method
proposed by the government was reasonable, erring as it
did on the side of understating, not overstating, the
drug quantities attributable to Gregorio. The district
court’s finding that Gregorio Acosta was involved in a
conspiracy to distribute in excess of 1.5 kilograms of crack
cocaine, for a base offense level 38, was not clearly errone-
ous.1
B. Nicolas J. Acosta
Nicolas J. Acosta pleaded guilty to the conspiracy count
in the indictment. He admitted assisting his brother
Gregorio and sister-in-law Spring sell crack from their
house on the LCO reservation during 2000 and part of 2001.
He received a sentence of 151 months, the bottom of an
advisory sentencing guidelines range of 151 to 188 months.
On appeal, Nicolas challenges the district court’s findings
related to drug quantity and other conduct attributed to
1
Gregorio makes one additional argument solely to preserve
the issue. He argues drug quantity should be proved beyond a
reasonable doubt. We have rejected this argument, see United
States v. James, 487 F.3d 518, 528-29 (7th Cir. 2007), and do
so again.
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 15
06-1963, 06-2268, 06-2333 & 06-2594
him for purposes of sentencing. First, Nicolas contends
the district court erred by holding him responsible for more
than 1.5 kilograms of crack cocaine. As with Gregorio
Acosta, the district court based this finding largely on
estimates provided by Spring Acosta. The court found
that Nicolas assisted his brother and sister-in-law in
selling crack from their house between November 1999
and August 2001.
Nicolas attacks Spring’s credibility as a general matter,
but as we have already noted, arguments of this nature
are insufficient to establish clear error. The district court
had the opportunity to assess Spring’s testimony and
evaluate her truthfulness; we defer to the court’s weighing
of the evidence and will not second-guess credibility
determinations. Noble, 246 F.3d at 953.
More specifically, Nicolas points to an inconsistency
in Spring’s estimates of the amount of cocaine brought to
the reservation and the amount sold from the Lasieur-
Acosta residence. To repeat, Spring testified that from
September 1999 to January 2000, she and Gregorio would
go to Milwaukee two or three times per week, returning
to the reservation with three or four ounces of powder
and crack cocaine each time; she also said that from
January 2000 to January 2001, Gregorio would travel to
Milwaukee every three weeks and bring back between
one and four ounces each trip. Her estimates of the
amounts sold from their residence on the reservation
differ; she said they sold about one to two ounces of
powder and crack cocaine from the residence every two
or three weeks. Nicolas seizes on this discrepancy between
the higher volume Spring said she and Gregorio trans-
ported to the LCO from Milwaukee and the amounts
she said they sold from the Lasieur-Acosta residence.
16 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
This discrepancy is not fatal to the district court’s drug-
quantity finding. Nicolas’s PSR stated that Gregorio
distributed “to the LCO Community” the drugs he
brought to the reservation from Milwaukee. This does not
suggest that all the drugs Gregorio transported from
Milwaukee were sold only from the drug house he oper-
ated with Spring. The evidence established that the LCO
Latin Kings operated other drug houses on the reserva-
tion as well and (as we shall see) other members of the
conspiracy were also involved in running drugs from
Milwaukee. The evidence also established that the crack-
cocaine trafficking by the LCO Latin Kings continued—at
the Lasieur-Acosta residence and other locations on the
reservation—after Gregorio went to prison.
Nicolas also contends the district court meant to attrib-
ute to him only the drug amounts sold from the Lasieur-
Acosta residence on the LCO, not the higher drug
amounts Gregorio transported from Milwaukee to the
LCO. Nicolas focuses on the following comment by
Judge Crabb at sentencing: “It’s very possible that you
[Nicolas] didn’t know how much your brother was bring-
ing up [to the reservation] on every occasion, but you
were in a position to know and were up at the reservation
enough to know what was being sold out of the house.”
Nicolas claims this demonstrates that the court meant
to hold him accountable only for amounts sold from the
Lasieur-Acosta residence.
Nicolas reads too much into this single comment by the
district court. As we have explained, “[i]n a drug conspir-
acy each conspirator is responsible not only for drug
quantities directly attributable to him but also for amounts
involved in transactions by coconspirators that were
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 17
06-1963, 06-2268, 06-2333 & 06-2594
reasonably foreseeable to him.” United States v. McLee,
436 F.3d 751, 765 (7th Cir. 2006). By his own admission,
Nicolas was a knowing and active participant in the
larger drug conspiracy at the heart of this prosecution.
He assisted Gregorio and Spring in selling crack and
powder cocaine from their home and, indeed, continued
to facilitate sales there after his brother’s imprisonment in
early 2001. The government argued (and the PSR recom-
mended) that the drug quantities Gregorio transported
to the reservation were reasonably foreseeable to Nicolas;
these amounts, as we have already noted, easily topped
1.5 kilograms.
When considered in context, Judge Crabb’s remark was
simply an acknowledgment that Nicolas may not have
known the precise quantity of drugs Gregorio transported,
but those amounts were nevertheless “reasonably fore-
seeable” to him because he was “in a position to know”
and certainly knew how much was being sold out of
the Lasieur-Acosta residence alone, not to mention else-
where on the reservation. The district court found that
Nicolas was a “committed member” of the Latin Kings
gang who “assisted in a criminal conspiracy to distribute
drugs that devastated the Lac Courte Oreilles Reservation.”
The actions of coconspirators are reasonably foreseeable
by Nicolas if he “demonstrated a substantial degree of
commitment to the conspiracy’s objectives, either through
his words or his conduct.” United States v. Zarnes, 33
F.3d 1454, 1474 (7th Cir. 1994) (quoting United States v.
Edwards, 945 F.2d 1387, 1393-94 (7th Cir. 1991)) (explaining
that the most important factor in determining reasonable
foreseeability is the defendant’s substantial degree of
commitment to the conspiracy’s objectives). Judge Crabb
18 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
emphasized that this conspiracy involved such large
quantities of cocaine and crack cocaine that even if
she limited Nicolas’s relevant conduct to just the year
2000, she would be “forced to conclude that you were
responsible for one and a half kilograms and, you know,
more than that probably . . . [,] a good deal more than
that if we take into account any of the other years that
you were involved.” The district court did not commit
clear error in attributing in excess of 1.5 kilograms of
crack cocaine to Nicolas.
Finally, Nicolas argues that the district court should
have given him a four-level reduction under U.S.S.G.
§ 3B1.2 for being a “minimal participant” in the con-
spiracy, instead of just the two-level “minor participant”
reduction he received. We review this determination for
clear error. United States v. Peterson-Knox, 471 F.3d 816, 824
(7th Cir. 2006); United States v. Hankton, 432 F.3d 779, 793
(7th Cir. 2005). The commentary to § 3B1.2 describes a
minimal participant as one who “plays a minimal role in
concerted activity” as evidenced by his “lack of knowl-
edge or understanding of the scope and structure of the
enterprise and of the activities of others.” U.S.S.G. § 3B1.2
cmt. n.4. The commentary further instructs that a down-
ward adjustment based on a defendant’s minimal partici-
pation is to be applied “infrequently.” Id. A minor partici-
pant, in contrast, is one “who is less culpable than most
other participants, but whose role could not be described
as minimal.” Id. at cmt. n.5.
As we have already discussed, although the district
court noted that Nicolas may not have known the
precise quantity of cocaine his brother Gregorio was
bringing to the LCO, he was “in a position to know” and
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 19
06-1963, 06-2268, 06-2333 & 06-2594
was “up at the reservation enough to know what was
being sold out of the house.” The court noted that al-
though Nicolas was “less involved in the conspiracy
than other participants,” he was involved for “a consider-
able period of time,” actively assisting “in the conspiracy
between November 1999 and August 2001.” Even after
his brother went to prison, Nicolas continued to sell
crack at the Lasieur-Acosta residence together with
coconspirators Pedro Zamora, Donald Fairbanks, Castillo,
and Barragan. The district court’s decision to award the
two-level “minor participant” adjustment rather than the
four-level “minimal participant” adjustment was not
clearly erroneous.
C. Donald Fairbanks
Donald Fairbanks pleaded guilty to counts 2 and 3 of the
indictment, admitting to maintaining a crack house and
distributing cocaine base. Like the other defendants, the
district court held Fairbanks responsible for in excess of
1.5 kilograms of crack cocaine. Fairbanks received a
guidelines adjustment for substantial assistance to the
government, which reduced his advisory guidelines
range to 235 to 293 months (from an original range of 360
months to life). He was sentenced to the bottom of the
range, 235 months.
Fairbanks challenges the district court’s drug-quantity
determination, arguing that the district court “indiscrimi-
nately” held him responsible for the activities of others in
“a murky, undefined conspiracy.” His argument relies
heavily on United States v. Bullock, 454 F.3d 637 (7th Cir.
2006), but that case is readily distinguishable. In Bullock,
20 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
the defendant was convicted of distributing heroin and
was held responsible for relevant conduct related to a
crack-distribution conspiracy carried out by other mem-
bers of his criminal gang. It was not self-evident why
the crack conspiracy’s operations should be attributed to
the defendant because his criminal activities took place
in a different location and at a different time; in addition,
the defendant’s PSR concluded that there was no direct
evidence linking the defendant to the conspiracy.
Here, in contrast, the PSR reported—and this was not
disputed—that Fairbanks was a longtime member of the
LCO Latin Kings and in 2000 and part of 2001, held the
position of Cacique (the number two position) in the
gang. He attended demos at which members of the gang
discussed drug resupply needs and decided who would
distribute the drugs. He collected and distributed drug
money and referred customers to a coconspirator
multiple times. With Pedro Zamora and John and
Candace Radermacher, he cooked, packaged, and sold
crack and otherwise helped operate the Yvonne Dennis
drug house on the LCO reservation. During the two-year
period from 2000 to 2002, two runners alone—Jacqueline
Martinson and Rebecca Corbine—provided the LCO Latin
Kings with at least one ounce of cocaine per week in the
form of crack and powder. The powder cocaine was
cooked into crack for resale from the Yvonne Dennis crack
house. There is much more, but this summary is sufficient
to demonstrate Fairbanks’s integral role in the conspiracy.
The foregoing facts, adopted by the district court from
the PSR, were derived from statements and testimony
of Spring Acosta, Candace Radermacher, Martinson,
Corbine, Dennis, and other coconspirators. The district
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 21
06-1963, 06-2268, 06-2333 & 06-2594
court’s finding that Fairbanks was responsible for in ex-
cess of 1.5 kilograms of crack cocaine was not clearly
erroneous.
Fairbanks next challenges the district court’s findings
regarding his use of underage sellers and the application
of a weapons enhancement. Fairbanks received a guide-
lines enhancement under U.S.S.G. § 3B1.4 for using
minors to commit his crimes. The minors, or “shorties” as
they are called in Latin King parlance, were adolescents
who aspired to become full members of the Latin Kings.
Gang members used these wannabes for various purposes,
including to sell crack cocaine. The district court found
Fairbanks was responsible for using two minors iden-
tified in the PSR as Ray Quagon and Michael Blackdeer.
We recently elaborated on what it means to “use” a
minor for purposes of receiving the use-of-a-minor en-
hancement under § 3B1.4 in the related LCO Latin Kings
case involving Spring Acosta and Candace Radermacher.
See Acosta, 474 F.3d at 1003. In Acosta, we concluded
that insofar as § 3B1.4 contemplated an individualized
enhancement, it was intended to punish “the particular
behavior of individual members of a conspiracy.” Id. That
is, to receive the enhancement, the defendant himself
must have used minors in the commission of his crime. Id.
Fairbanks’s argument—a lone paragraph without any
citation to case law—is that “the evidentiary basis, as
attested to by the ‘shorties’ themselves, is that Fairbanks
never utilized them, period.” While it is true that Quagon’s
and Blackdeer’s statements do not specifically reference
Fairbanks, they also do not affirmatively deny working
with him. The PSR elsewhere substantiates Fairbanks’s
personal use of these shorties: Martinson reported that
22 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
Fairbanks supplied crack to others, specifically including
Quagon and Blackdeer, for redistribution on the reserva-
tion. Distributing drugs directly to minors for further
distribution qualifies as the type of personal use of a
minor warranting application of the use-of-a-minor
enhancement under § 3B1.4.
This leaves Fairbanks’s claim that the district court
improperly added a two-level dangerous-weapon en-
hancement under U.S.S.G. § 2D1.1(b)(1). A sentencing
court properly adjusts a sentencing guidelines range
for weapon possession “if the weapon was present,
unless it is clearly improbable that the weapon was con-
nected with the offense.” U.S.S.G. § 2D1.1 cmt. n.3. Once
the government has proved possession, the defendant
must show it is clearly improbable that the weapon
was connected with the offense. United States v. Johnson,
289 F.3d 1034, 1042 (7th Cir. 2002). Contrary to Fair-
banks’s suggestions, the court need not have found that
Fairbanks himself possessed or used a weapon—here,
multiple firearms. He is considered to have “possessed”
a firearm if coconspirators possessed firearms in further-
ance of the conspiracy and Fairbanks could have reason-
ably foreseen the coconspirators’ possession. United States
v. Harris, 230 F.3d 1054, 1057 (7th Cir. 2000). The PSR
identifies numerous coconspirators who possessed firearms
and had multiple contacts with Fairbanks, including the
Radermachers, Corbine, and Quagon. The application of
the two-level weapon enhancement was not clear error.
D. Jorge Barragan, Jr.
Jorge Barragan, Jr., went to trial and was found guilty on
the conspiracy count. The district court found him respon-
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 23
06-1963, 06-2268, 06-2333 & 06-2594
sible for in excess of 1.5 kilograms of crack, for a base
offense level of 38, and added the two-level weapon
enhancement, yielding (when combined with his lengthy
criminal history) an advisory guidelines range of
360 months to life. Barragan was sentenced to 312
months, the bottom of the advisory range minus the time
he had already spent in custody. On appeal, Barragan
challenges the district court’s drug-quantity determina-
tion and the application of the weapons enhancer.
The district court found Barragan responsible for more
than 1.5 kilograms of crack cocaine, in accordance with the
recommendation in the PSR, based on the significance of
his role in the conspiracy. Barragon, a member of the
Milwaukee Latin Kings, began dating Spring Lasieur in
1997, and by late 1998 was traveling regularly to the LCO
with her and selling marijuana on the reservation. In late
1998 or early 1999, the Milwaukee and LCO Latin Kings
began to set up their “region” for the purpose of distribut-
ing cocaine on the reservation; as we have already noted,
Barragan was an early “regional member” of this organiza-
tion. He started dating Jacqueline Martinson in late 1999
or early 2000, and the two began to transport powder and
crack cocaine from Milwaukee to the LCO on a regular
basis. Martinson gave birth to Barragan’s child in Decem-
ber 2000, but continued to make Milwaukee/LCO cocaine
resupply runs for him in 2001 while Barragan sold crack
from the Lasieur-Acosta residence after Gregorio Acosta
went to prison in January 2001. Evidence at trial also
established that Barragan cooked powder cocaine into
crack at a drug house operated by Richard Saddler, a
coconspirator who was convicted in a separate case.
Barragan was imprisoned on a gun charge in December
2001, but referred Martinson to a new source of cocaine
24 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
from prison so she could continue the supply of drugs
to the LCO crack conspiracy.
Barragan conceded for sentencing purposes certain drug
quantities relating to specific incidents of distribution
involving coconspirators Castillo, Corbine, Fairbanks, and
Gregorio Acosta; these quantities totaled 171.75 grams
of crack, and we need not discuss this amount any fur-
ther. Martinson testified to making approximately 12
trips with Barragan from Milwaukee to the reservation
in 2000, carrying a half-ounce to an ounce each of powder
and crack cocaine on each trip. The government reasonably
suggested using the low-end estimate of a half-ounce of
crack per trip, for a total of just over 170 additional grams
of crack. Martinson’s drug runs for Barragan in 2001
involved similar amounts; Candace Radermacher (who
replaced Fairbanks as Cacique sometime that year) esti-
mated their frequency at about three a month. Thirty-six
trips at a half-ounce of crack per trip raised the total by
an additional 510 grams of crack.
The government also argued that the crack amounts
transported by Gregorio Acosta from Milwaukee to the
LCO from January 2000 to January 2001 were reasonably
foreseeable to Barragan based on his prominent role in
and awareness of the operation of the conspiracy. This
added just over 960 grams of crack to the drug-quantity
total. Finally, the government argued Barragan should
be held accountable for the crack Martinson supplied to
the conspiracy from January 2002 to May 2002 because he
referred her to an alternative source for this time period
while he was in prison. Martinson testified to approxi-
mately 20 resupply trips during this period involving
two to six ounces of powder and crack cocaine each trip.
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 25
06-1963, 06-2268, 06-2333 & 06-2594
Again using the low-end estimate of two ounces of crack
per trip, this added another 1,134 grams, for a grand
total of 2,949.75 grams of crack cocaine.
The district court did not fix the drug quantity quite
so specifically, but its finding that Barragan was in-
volved in trafficking in excess of 1.5 kilograms of crack
was not clearly erroneous. Barragan attacks the govern-
ment’s method of estimating crack (as opposed to powder)
amounts, but we have already concluded that it under-
stated rather than overstated drug quantity and was
therefore reasonable. Like Gregorio Acosta, Barragan
also challenges the reliability of the witnesses’ testimony,
but again, we defer to the district court’s evaluation of
witness credibility and the weight of the evidence. Finally,
Barragan contests the inclusion of Martinson’s drug-
running in 2002, while he was in custody, as not reasonably
foreseeable to him. We disagree, but even excluding
those amounts leaves a drug-quantity total in excess of
1.5 kilograms of crack. Given the scale of this conspiracy,
we think this is a very conservative estimate. We reject
Barragan’s challenge to the district court’s drug-quantity
findings.
Barragan’s last argument concerns his weapon enhance-
ment under U.S.S.G. § 2D1.1(b)(1). Barragan was
stopped by police on December 10, 2001; the police
searched his van and found a disassembled machine gun
and two revolvers. It is undisputed the machine gun
was owned by the Latin Kings. Barragan argues there
was no evidence the guns were related to the sale of drugs.
This is not so; there was plenty of circumstantial evid-
ence. The guns were found during the time frame of the
conspiracy, one of the weapons was owned by the gang
26 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
responsible for the illicit activities of the drug con-
spiracy, and the guns were found in Barragan’s van when
he was making a trip from the LCO to Milwaukee, where
the LCO Latin Kings regularly obtained its supply of drugs.
The burden is on Barragan to show that it was “clearly
improbable” that the guns were connected to the conspir-
acy, and he has failed to discharge that burden.
E. Ernesto Estrada III
The jury found Ernesto Estrada III guilty of conspiracy,
and he was sentenced to 292 months in prison. As we
have already discussed, he was an early participant in
the conspiracy, making frequent drug runs with Spring
Lasieur from Milwaukee to the LCO between January
and August of 1999 and, more intermittently, from Septem-
ber 1999 to January 2000 with Spring and Gregorio Acosta.
On appeal, Estrada challenges only the district court’s
drug-quantity finding. As with the other defendants, the
district court found Estrada responsible for in excess of
1.5 kilograms of crack. Estrada’s points of error resemble
those we have already rejected; we need not repeat them
here. At the very least, Estrada was directly responsible
for transporting 3,628 grams of crack to the LCO from
January to August 1999—much more if the trips between
September 1999 and January 2000 are counted. The district
court’s drug-quantity finding was not clearly erroneous.
F. Florentino Castillo
The jury convicted Florentino Castillo of conspiracy, and
he was sentenced to a term of 322 months, the bottom
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 27
06-1963, 06-2268, 06-2333 & 06-2594
of the applicable guidelines range of 360 months to life
minus the time he spent in state custody for related con-
duct. On appeal, Castillo purports to adopt various argu-
ments of his coappellants, but makes no effort to apply the
relevant legal standards or analysis to his particular
circumstances. Absent this necessary development, his
arguments are waived. See United States v. Turcotte, 405 F.3d
515, 536 (7th Cir. 2005).
To the extent Castillo is mounting a challenge to the
district court’s drug-quantity finding similar to those of
his codefendants, we reject it for the reasons we have
already stated. The evidence at trial established that
Castillo’s involvement in this conspiracy began in 1998
with frequent trips from Milwaukee to the LCO as the
Milwaukee/LCO Latin Kings crack distribution “region”
was being established. While Spring Lasieur, Estrada,
and Gregorio Acosta were making drug runs from Mil-
waukee to the LCO in 1999 and 2000, Castillo and Estrada
were selling the crack cocaine to users at parties on the
reservation. Beginning in January 2001 when Gregorio
went to prison, Castillo sold crack from the Lasieur-Acosta
drug house. In 2002 he began to supply Jacqueline
Martinson and Rebecca Corbine with powder and crack
cocaine for transport from Milwaukee to the LCO. He
continued to be a source of cocaine resupply for the
conspiracy through the spring of 2003 from dealers in
Milwaukee and Minneapolis. Given the duration and
scale of this conspiracy and the significant and ongoing
role Castilllo played in it, the district court’s drug-quantity
finding of in excess of 1.5 kilograms of crack cocaine
was not clearly erroneous.
28 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
G. Pedro Zamora
The jury found Pedro Zamora guilty of the conspiracy
count and one count of maintaining a drug house for
his role in operating the Yvonne Dennis crack house. He
was sentenced to a term of 360 months on the conspiracy
count, the bottom of the applicable guidelines range of
360 months to life, and a concurrent 240 months for the
conviction for maintaining a drug house.
Zamora first challenges the district court’s denial of
his Rule 29 motion for acquittal based on insufficient
evidence that he maintained a drug house in violation of
21 U.S.C. § 856(a)(1). Our review of a district court’s
denial of a Rule 29 motion is de novo. See United States v.
Hendrix, 482 F.3d 962, 966 (7th Cir. 2007). Zamora’s burden
on appeal is a heavy one; he must convince this court
that even drawing all inferences in the light most favor-
able to the government, no rational trier of fact could
have found him guilty beyond a reasonable doubt. Id.
While Zamora concedes he sold drugs with the
Radermachers from Yvonne Dennis’s residence, he claims
there was insufficient evidence that he “maintained” the
drug house. See United States v. Banks, 987 F.2d 463, 466
(7th Cir. 1993) (stating that to prove a violation under
§ 856(a), the government must show that the defendant
(1) knowingly (2) opened or maintained his home (3) for
the purposes of manufacturing, distributing, or using
crack). Zamora stayed there on and off for almost seven
months rent free. During that time, he cooked, packaged,
and sold crack to customers who came to the house; he
also directed Sasha Dennis (Yvonne’s daughter) to do the
same. On occasion he provided Yvonne Dennis with
crack for her personal use.
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 29
06-1963, 06-2268, 06-2333 & 06-2594
A variety of factual scenarios may amount to “main-
taining” a drug house under § 856(a). For example, an
individual “maintains” a drug house if he owns or rents
premises, or exercises control over them, and for a sus-
tained period of time, uses those premises to manufacture,
store, or sell drugs, or directs others to those premises
to obtain drugs. See, e.g., United States v. Morgan, 117
F.3d 849 (5th Cir. 1997); see also United States v. McCullough,
457 F.3d 1150 (10th Cir. 2006) (defendant “maintained”
premises she admitted to owning, using as her primary
residence, and at which drugs were located); United States
v. Scull, 321 F.3d 1270 (10th Cir. 2003) (defendant “main-
tained” premise he owned where drugs were manufac-
tured and packaged). By contrast, merely living in a
house used for drug operations is insufficient. United
States v. Clavis, 956 F.2d 1079 (11th Cir. 1992). Zamora
obviously did not own the premises in question, but that
is not dispositive of whether he maintained them. See, e.g.,
United States v. Basinger, 60 F.3d 1400 (9th Cir.
1995) (defendant “maintained” premises for purposes of
§ 856(a) where he was the only resident and caretaker of
property on which he lived during the winter with
access to drug-laboratory shed); United States v. Wood, 57
F.3d 913 (10th Cir. 1995) (defendant maintained drug
premises even though he did not own house and only
lived there for two months in summer, but he controlled
the room where he resided and stored drugs there).
Zamora was far more than a casual visitor. See Morgan, 117
F.3d at 857; United States v. Verners, 53 F.3d 291, 295-96
(10th Cir. 1995).
Zamora argues that he lived at the Dennis residence
because he had nowhere else to stay and, for a time, was
30 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
dating Sasha, Yvonne Dennis’s daughter. To the extent
Zamora is suggesting that he cannot be guilty of main-
taining the crack house at Yvonne Dennis’s residence
because he had other innocent reasons for living there,
the jury was entitled to conclude otherwise. He also
argues that he sold drugs elsewhere on the reservation,
but we fail to see how this is relevant to whether he
maintained the Dennis residence for the purpose of
distributing crack. His drug dealing at other locations on
the reservation is irrelevant provided that buyers knew
they could obtain drugs from him at Dennis’s house
and sought him out there.
Though he did not pay rent, Zamora did provide free
crack occasionally to Yvonne Dennis, the owner of
the house. The jury could have reasonably inferred
these transactions were a sort of quid pro quo for the use
of the premises. He stayed overnight at the house—not
continually, but on a sustained periodic basis—for
seven months. Yvonne Dennis testified Zamora regularly
dealt drugs from her front door; Sasha said he would
also deal from the living room or a bedroom window.
Sasha further testified that if Zamora had somewhere to
go, he would leave crack for her to sell. Though Yvonne
Dennis exercised ultimate control over the premises,
she allowed Zamora to exercise sufficient dominion over
the house so as to conduct regular drug transactions there.
These facts were sufficient for the jury to find that
Zamora maintained the Dennis drug house in violation
of § 856.
Zamora also challenges the denial of his Rule 33 motion
for a new trial based on the district court’s refusal to
allow full cross-examination of certain witnesses testi-
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 31
06-1963, 06-2268, 06-2333 & 06-2594
fying against Zamora. We review such rulings for abuse
of discretion. United States v. Walton, 217 F.3d 443, 450
(7th Cir. 2000). Zamora’s argument is based on informa-
tion provided by Spring Lasieur Acosta and Candace
Radermacher regarding an arson fire at a residence on
the LCO. Though wholly unrelated to this case, the sub-
ject of the fire came up during Spring’s and Candace’s
interviews with the FBI, but the district court did not
allow the subject to be explored before the jury.
In their interviews with the FBI, Spring and Candace
gave varying answers to questions about who set the
fire. Spring identified two different people before settling
on a third; Candace initially claimed she did not know
the arsonist’s identity, though she later named the
same person as Spring. Zamora thinks these vacillations are
evidence of Spring’s and Candace’s general lack of credibil-
ity and his counsel should have been allowed to impeach
these witnesses with their statements about the fire. We
disagree. As the district court noted, defense counsel had
more than sufficient opportunity to impeach the witnesses’
credibility. Allowing cross-examination into the origins of
the arson fire—particularly given its lack of relevance to
the events at issue in this prosecution—would have
sidetracked the trial and risked confusing the jury. The
district court did not abuse its discretion by excluding this
line of questioning.
Finally, Zamora argues that the district court failed to
properly consider the sentencing factors of 18 U.S.C. § 3553.
Sentences within a properly calculated guidelines range are
entitled to a presumption of reasonableness on appeal. Rita
v. United States, 127 S. Ct. 2456, 2459 (2007); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Zamora asked
32 Nos. 06-1519, 06-1757, 06-1777, 06-1801,
06-1963, 06-2268, 06-2333 & 06-2594
for a below-guidelines sentence and now attacks the
reasonableness of the sentence he received. He claims
that his immaturity and youth warranted a below-guide-
lines sentence.
Zamora’s argument essentially asks us to consider
factors that did not persuade the district court in the first
instance. Such a request is beyond the scope of reason-
ableness review. “Our review is deferential to the district
court’s judgment; ‘the question is not . . . what sentence
we ourselves might ultimately have decided to impose
on the defendant.’ ” United States v. Newsom, 428 F.3d
685, 686 (7th Cir. 2005) (quoting United States v. Williams,
425 F.3d 478, 481 (7th Cir. 2005)). Judge Crabb gave
specific consideration to a variety of appropriate factors,
including Zamora’s age, his voluntary participation in
the charged crimes, his intermediate role in the drug
dealing, his use of minors, his attendance at gang
meetings, and the need for incapacitation. Zamora’s
within-guidelines sentence is presumed reasonable on
appeal, and he has failed to rebut the presumption.2
H. Robert G. Smith
Robert G. Smith pleaded guilty to the conspiracy count
charged in the indictment and, after application of
several downward adjustments to the advisory guide-
lines range, was sentenced to 125 months, just above the
statutory minimum of 120 months and within the ap-
2
Zamora, like Gregorio Acosta, makes the additional argument,
solely to preserve it, that drug quantity should be proved
beyond a reasonable doubt. We again reject this argument. See
n.1, supra.
Nos. 06-1519, 06-1757, 06-1777, 06-1801, 33
06-1963, 06-2268, 06-2333 & 06-2594
plicable guidelines range of 120 to 125 months. His attorney
filed an Anders brief in support of his motion to withdraw
as Smith’s appointed appellate counsel, and Smith did not
file a response to the brief. We have reviewed counsel’s
Anders brief and agree there are no nonfrivolous issues for
appeal. The district court properly calculated the sentenc-
ing guidelines range, did not clearly err in its factual
findings in the determination of relevant conduct, properly
considered the applicable guidelines range, and imposed
a reasonable sentence after giving due consideration to the
§ 3553(a) factors. Accordingly, we grant Smith’s counsel’s
motion to withdraw.
III. Conclusion
Pedro Zamora’s conviction and sentence are AFFIRMED.
The sentences of Gregorio Acosta, Nicolas Acosta, Donald
Fairbanks, Jorge Barragan, Ernesto Estrada, and Florentino
Castillo are AFFIRMED. The motion to withdraw by
Robert Smith’s counsel is GRANTED.
USCA-02-C-0072—7-15-08