United States v. Bautista, Rogelio ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1620
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROGELIO BAUTISTA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 19—James F. Holderman, Chief Judge.
____________
ARGUED DECEMBER 7, 2007—DECIDED JULY 14, 2008
____________
Before EASTERBROOK, Chief Judge, and MANION and
KANNE, Circuit Judges.
MANION, Circuit Judge. On March 22, 2005, Rogelio
Bautista was indicted, along with four co-defendants,
for his role in a conspiracy to manufacture and distribute
methamphetamine. Bautista was convicted following a
four-day jury trial, and sentenced to 235 months in prison.
Bautista’s sentence resulted, in part, from the district
court’s findings that he was responsible for between five
and fifteen kilograms of methamphetamine, and that he
was not a minor or minimal participant in the conspiracy.
Bautista appeals these findings, and we affirm.
2 No. 07-1620
I.
During the summer of 2004, the Drug Enforcement
Administration (“DEA”) began investigating a meth-
amphetamine (“meth”) distribution operation run by
Bautista’s co-defendant, Heber Gomez-Albaranga. DEA
Task Force Officer Luis Dominguez acted in an under-
cover capacity during the course of the investigation,
posing as a drug dealer involved in the distribution of
meth and cocaine. Dominguez was also the govern-
ment’s primary witness at Bautista’s trial.1 Dominguez
expressed interest in purchasing meth from Gomez-
Albaranga, and for that purpose Gomez-Albaranga intro-
duced him to co-defendant Roberto Lopez in June or
July 2004.
Dominguez eventually arranged to purchase one
pound of meth from Lopez. When Dominguez met
with Lopez on September 24, 2004, to complete the trans-
action, Lopez was accompanied by co-defendant Daniel
Perez and another man known only as Luis. At
Dominguez’s suggestion, Lopez agreed to meet later that
day at a gas station and travel from there to a nearby
warehouse to complete the transaction. When Dominguez
arrived at the gas station, he observed Lopez, Perez,
and Luis speaking with the driver of a parked vehicle. At
trial, Dominguez identified Bautista as the driver. Lopez
approached Dominguez and informed him that Luis
would ride in Dominguez’s car, that Lopez would follow
Dominguez, and that Bautista would follow Lopez.
Dominguez raised concerns about too many people
1
Unless otherwise noted, the facts that follow are taken
from Dominguez’s trial testimony.
No. 07-1620 3
proceeding to the warehouse, and Lopez assured him
that it would only be himself, Luis, and Bautista.
While driving to the warehouse, Luis told Dominguez
that the price for the meth was $11,000, and that $1,000
of that would be used to pay “the driver2.” Once the
caravan arrived at the warehouse, Luis exited Dominguez’s
vehicle and approached the one driven by Bautista.
Dominguez also exited his vehicle, and he observed
Bautista open a passenger-side compartment inside the
car that would normally be used to house an air bag.
Luis removed a four-inch square plastic bag from the
compartment. Dominguez, Lopez, and Luis, but not
Bautista, proceeded inside and completed the transac-
tion. At trial, the parties stipulated that the bag con-
tained 493 grams, or a little over one pound, of meth.
Bautista also testified at trial, and he denied any involve-
ment in this incident, stating that he does not own a
car and does not have a driver’s license.
A few months later, Dominguez met with Gomez-
Alberanga and told him he had a source from whom he
could obtain pseudoephedrine, the primary ingredient in
meth. They agreed to move forward with an arrangement
whereby Dominguez would provide pseudoephedrine
and a laboratory in which to cook the meth, and Gomez-
Alberanga would supply the remaining necessary chemi-
cals and a chemist, or “cook,” to carry out the process.
2
Dominguez gave conflicting testimony regarding whether
the $1,000 for the driver would be taken from the $11,000, or
whether it was to be paid in addition to that amount. He
testified unequivocally, however, that the driver to whom
the $1,000 would be paid was Bautista.
4 No. 07-1620
Dominguez met with Lopez, Perez, and Bautista at a
restaurant on January 4, 2005, to further discuss this plan.
While all four men were seated at the same table,
Dominguez told Lopez he could obtain five boxes of
pseudoephedrine, each containing 30,000 sixty-milligram
pills. Lopez responded positively and stated that that
much pseudoephedrine would yield approximately
twelve pounds of meth. Their conversation was in
Spanish, the language spoken by Bautista, and Dominguez
testified that Bautista sat no more than three feet away
during the entire conversation. Testifying in his own
defense, Bautista stated that he did not pay attention
to what Dominguez and Lopez were talking about during
this meeting, and that he was speaking only with Perez.
On January 24, 2005, Dominguez met with Gomez-
Alberanga, Lopez, Perez, Bautista, and another co-defen-
dant, Jose Olivas-Ramirez, to inspect the warehouse
represented by Dominguez to be the lab location. Olivas-
Ramirez was the cook to whom Gomez-Alberanga re-
ferred earlier. At trial, the jury watched a DEA surveil-
lance video showing the men conversing and viewing
different aspects of the premises, which was roughly the
size of a two-car garage. At one point Olivas-Ramirez
expressed concern about a gas heater in the warehouse
with an open flame because of the combustible nature of
the chemicals used in manufacturing meth. The video
showed the entire group looking at the furnace. Gomez-
Alberanga listed the items that would be needed in-
cluding four buckets, alcohol and acetone in multiple
gallon quantities, and a coffee maker. Olivas-Ramirez
stated that with the proper materials and set-up, the
warehouse would be adequate for cooking the meth, and
like Lopez, he estimated he could manufacture up to
No. 07-1620 5
twelve pounds of meth from the pseudoephedrine
Dominguez supplied. Dominguez described Bautista as
standing anywhere from right next to Dominguez to ten
feet away during this conversation. Bautista testified
during his direct testimony that he only stayed in the
warehouse for ten minutes before returning to the car to
wait with Perez and warm up. On cross-examination,
however, he admitted standing next to Dominguez and
hearing the discussion set forth above.3 At the con-
clusion of this meeting, Dominguez and Lopez agreed to
meet the next day for delivery of the pseudoephedrine.
On January 25, 2005, Dominguez and another undercover
agent met Gomez-Alberanga, Olivas-Ramirez, Lopez,
Perez, and Bautista at Gomez-Alberanga’s residence in
Chicago to finalize their plans, and so that Olivas-Ramirez
could give Dominguez some chemicals for the manufac-
turing process. At the direction of the defendants,
Dominguez and the other agent went to a restaurant
named Chela’s to deliver the pseudoephedrine. A third
undercover agent arrived in a vehicle carrying the
pseudoephedrine. Dominguez, Lopez, and Bautista
began carrying boxes of pseudoephedrine into the base-
ment of Chela’s. At this time, Dominguez observed
many items used in meth manufacturing in the room to
which they were bringing the pseudoephedrine, including
cans of acetone, cutting agents, a funnel, a pitcher, a
3
While not challenged on appeal, it is worth noting that
Bautista’s testimony regarding his conduct at the warehouse
and on September 24, 2004, served as bases for the district
court’s enhancement of his offense level by two levels for
obstruction of justice pursuant to U.S.S.G. § 3C1.1.
6 No. 07-1620
beaker, a flask, and coffee pot.4 Dominguez and Bautista
went outside to retrieve more pseudoephedrine, and
when Dominguez handed Bautista another box, he was
arrested.
A four-count indictment was returned against Bautista,
Gomez-Alberanga, Lopez, Olivas-Ramirez, and Perez on
March 22, 2005. Bautista was charged in Count One with
conspiring from August 2004 until January 25, 2005, to
manufacture and distribute 500 grams or more of meth,
in Count Three with distributing approximately one
pound of meth on September 24, 2004, and in Count Four
with attempting to manufacture approximately 450 grams
of meth on January 24 and 25, 2005. The case against
Bautista proceeded to trial on November 7, 2005. In
addition to the testimony noted above, Kreft testified
generally regarding the process by which meth is manu-
factured. The government also asked Kreft how much
meth could have been produced from the 150,000
pseudoephedrine pills. Bautista objected to this testi-
mony, and his objection was sustained when Kreft ad-
mitted that he did not know how much meth the defen-
dants could have made because of his lack of knowl-
edge regarding their background and abilities in chemistry.
On November 14, 2005, the jury returned a verdict
finding Bautista guilty on all three counts in which he
was charged.
Bautista’s sentencing took place over four hearings
during which Gomez-Alberanga, Olivas-Ramirez, and
4
These items were subsequently analyzed by Robert Kreft,
a forensic chemist with the Department of Justice. He deter-
mined that residue on the funnel and the coffee pot con-
tained pseudoephedrine, and that the pitcher held a liquid
containing meth and pseudoephedrine.
No. 07-1620 7
Perez testified in support of Bautista’s motion for an
offense level reduction based on minor or minimal partici-
pation in the conspiracy. Each of the men testified that
they never discussed meth with Bautista, and Gomez-
Alberanga repeatedly stated his belief that Bautista had
nothing to do with the operation. The district court stated
that upon consideration of the evidence presented at
trial and sentencing, as well as after weighing the cred-
ibility of the witnesses, Bautista was not entitled to a
reduction because he was involved enough to be “a reg-
ular member” of the conspiracy.
Bautista also argued at sentencing that the district
court had before it no reliable evidence upon which it
could find that the conspiracy involved more than the 493
grams of meth he delivered on September 24, 2004. 493
grams of meth would have given Bautista a base offense
level of 30. U.S.S.G. § 2D1.1(c)(5) (2005). Bautista’s argu-
ment was based primarily on Kreft’s admission that he
could not determine the amount of meth the defendants
would have been able to manufacture. The government,
on the other hand, argued that Bautista was responsible
for at least five kilos of meth giving him a base offense
level of 36. U.S.S.G. § 2D1.1(c)(2) (2005). The government’s
position was based, in pertinent part, on the 493 grams
of meth Bautista delivered on September 24, 2004, and
the twelve pounds, or 5.4 kilos, that Lopez and Olivas-
Ramirez separately claimed could be made from the
pseudoephedrine provided by Dominguez. The district
court determined that the amount of meth involved
was “beyond the 493 grams,” and that in light of the
available precursor drugs, the defendants’ intent, and
the likelihood that the defendants “would attempt to use
their best efforts to make as much [meth] as they could
8 No. 07-1620
from the precursor ingredients that they had,” Bautista
was responsible for over five kilos of meth.
The district court ultimately determined that Bautista
had an offense level of 38 and a criminal history of I
resulting in a guideline range of 235 to 293 months, and
imposed a sentence of 235 months. Bautista appeals his
sentence, arguing that the district court had no reliable
evidence upon which to base its finding that the con-
spiracy involved over five kilos, and that even if it did,
the defendants did not have the capability to make that
amount. Additionally, Bautista argues that the district
court erred in denying his request for the offense level
reduction available to minor or minimal participants in
a conspiracy.
II.
Any quantity of drugs foreseeably falling within the
scope of jointly undertaken criminal activity is included
when determining a defendant’s relevant conduct. U.S.S.G.
§ 1B1.3, cmt. n. 2. (2005). When a quantity determination
is being made, defendants have a due process right to be
sentenced based on reliable information; district courts
must therefore base their findings at sentencing on infor-
mation having “sufficient indicia of reliability to sup-
port its probable accuracy.” United States v. Johnson, 489
F.3d 794, 797 (7th Cir. 2007).
A seizure of the drugs involved in an offense provides a
reliable basis for determining the quantity of drugs attrib-
utable to a defendant. However,
[w]here there is no drug seizure or the amount seized
does not reflect the scale of the offense, the court
No. 07-1620 9
shall approximate the quantity of the controlled
substance. In making this determination, the court
may consider, for example, the price generally ob-
tained for the controlled substance, financial or other
records, similar transactions in controlled sub-
stances by the defendant, and the size or capability
of any laboratory involved.
U.S.S.G. § 2D1.1, cmt. n. 12. (2005). “Application Note 12
is designed to match the penalty to the true scale of the
drug operation. . . . [T]he object of the Note is to move
away from ‘what was seized?’ to ‘how big was this drug
business?’ ” United States v. Eschman, 227 F.3d 886, 892
(7th Cir. 2000) (Easterbrook, J., concurring). When
seeking to approximate the quantity of drugs involved
by way of reliable evidence, a district judge “may appro-
priately conduct an inquiry broad in scope, largely unlim-
ited either as to the kind of information he may con-
sider, or the source from which it may come.” Johnson,
489 F.3d at 796-97. We will disturb the result of that
inquiry only if it is clearly erroneous; that is, “only if,
after reviewing the entire evidence, we are left with the
firm and definite conviction that a mistake has been made.”
United States v. James, 113 F.3d 721, 730 (7th Cir. 1997).
Bautista does not dispute inclusion of the 493 grams he
delivered on September 24, 2004 in his relevant conduct.
The issue then becomes whether the twelve pounds
discussed by Bautista’s co-defendants was sufficiently
reliable to support Bautista’s sentence. We conclude that
it was. First, two separate co-defendants testified that
they would be able to make twelve pounds, or 5.4
kilos, of meth from the pseudoephedrine provided by
Dominguez-Lopez at the January 4, 2005 meeting, and
Olivas-Ramirez at the January 24, 2005 meeting. Isolated
10 No. 07-1620
statements by criminals, even those high-ranking within
an operation, are not necessarily sufficiently reliable to
approximate the drug amount attributable to a defendant.
However, these were consistent statements regarding
the operation’s capability which were made a few
weeks apart by Lopez, who was at or near the top of
this conspiracy, and Olivas-Ramirez, the meth cook.5 See
United States v. Morrison, 207 F.3d 962, 968 (7th Cir. 2000)
(concluding that consistent statements by witnesses
who participated in cooking sessions with the defendant
were reliable and could be relied on by a court in deter-
mining the quantity of drugs attributable to a defendant).
The defendants’ lab had not been set up, but the court
was still able to consider what its capability would have
been because Olivas-Ramirez only gave Dominguez the
twelve-pound number after he received assurances that
the lab would be outfitted according to his requests.
Additionally, the probable accuracy of the twelve-pound
quantity was increased by evidence that the group was
already involved in meth manufacture as shown by the
operational lab in Chela’s basement. Finally, if the 493
grams for which Bautista concedes he is responsible is
5
After pleading guilty to the charges against him, Olivas-
Ramirez argued for a minor role reduction, stating that he
only pretended to be the cook, and had been instructed by
Lopez on how to conduct himself during the warehouse
meeting. United States v. Olivas-Ramirez, 487 F.3d 512, 515 (7th
Cir. 2007). The district court did not believe him and not only
denied the minor role reduction, but denied him a safety
valve reduction under U.S.S.G. § 5C1.2 based on its belief that
he had not truthfully disclosed his role in the offense. We
affirmed. Id. at 517.
No. 07-1620 11
added to the twelve pounds, the result is approximately
5.9 kilos. This means that, when taken in total, the evid-
ence before the district court provided a buffer of almost
900 grams before the attributable quantity of meth would
slip under five kilos and warrant a reduced base offense
level. See United States v. Hollins, 498 F.3d 622, 631 (7th
Cir. 2007) (noting that “although evidence of drug
quantity must be more than speculative, nebulous eye-
balling, the sentencing guidelines permit some amount
of reasoned speculation and reasonable estimation by a
sentencing court”) (quotation omitted).
Bautista makes much of Kreft’s inability to state how
much meth the defendants could have made from the
150,000 pseudoephedrine pills. In doing so, he places
inordinate emphasis on lab capability in determining
meth quantity. Lab size and capability were included in
Application Note 12 of U.S.S.G. § 2D1.1 only as an ex-
ample of the type of information that could be con-
sidered by the district court when approximating drug
quantity. Our language in Eschman that this approxima-
tion should be made with regard for “a particular defen-
dant’s capabilities when viewed in light of the drug
laboratory involved,” Eschman, 227 F.3d at 890, should
not be read to impose a requirement that a lab must be
functioning before approximating the amount of meth
attributable to a defendant. Here, the members of an
experienced meth operation believed they were going
to have a lab outfitted with whatever they needed, and
that this would allow them to manufacture twelve
pounds of meth. That evidence, especially when com-
bined with the 493 grams undisputed by Bautista, pro-
vided a basis for attributing to him at least five kilograms
of meth. Kreft’s inability to specifically quantify the
12 No. 07-1620
defendant’s meth manufacturing capability does not
undermine the district court’s finding.6
Bautista argues briefly in the alternative that even if
there was reliable evidence that the offense involved
more than five kilos, there was no evidence that any of
the defendants was capable of manufacturing that much
meth. Bautista bears the burden on this point because
Application Note 12 of U.S.S.G. § 2D1.1 shifts the bur-
den to a defendant who argues that he was not capable of
manufacturing the disputed drug amount. United States v.
Wash, 231 F.3d 366, 373 (7th Cir. 2000). Other than charac-
terizing figures over five kilos as “nothing more than
guesswork, braggadocio, or perhaps wishful thinking,”
Bautista offers little to undermine the district court’s
finding that the amount of meth involved was between
five and fifteen kilos based on the available precursor
drugs, the defendants’ intent, and the likelihood that the
defendants would use their best efforts to make as much
meth as possible from the precursor ingredients. Bautista’s
argument is insufficient to meet his burden.
Finally, Bautista argues that the testimony and evid-
ence put forward at trial and sentencing establish that he
was a minor or minimal participant in the conspiracy, and
that he was therefore entitled to a role reduction under
U.S.S.G. § 3B1.2. Like the district court’s determination
6
At sentencing, the government also discussed, but did not
introduce, a DEA lab report quantifying the amount of meth
found in Chela’s basement, as well as what a 100% meth yield
from the pseudoephedrine would have been. Because this
report is not determinative of whether more than five kilos
of meth were attributable to Bautista, we do not address it.
No. 07-1620 13
regarding drug quantity, its determination of whether
Bautista was a minor or minimal participant is reviewed
for clear error. United States v. Mendoza, 457 F.3d 726,
729 (7th Cir. 2006). Under § 3B1.2(a), a four-level reduc-
tion is available for minimal participants, described in
Application Note 4 as “defendants who are plainly among
the least culpable of those involved in the conduct of
a group.” Under § 3B1.2(b), a two-level reduction is
available for minor participants, described in Application
Note 5 as “less culpable than most other participants,
but whose role could not be described as minimal.”
In addition to Dominguez’s trial testimony describing the
role of each of the defendants, the testimony of Gomez-
Alberanga, Olivas-Ramirez, and Perez at sentencing
supports the conclusion that Bautista was not at the top
of the defendants’ meth operation. Bautista was portrayed
as a predominantly silent figure traveling around with
Lopez while Lopez arranged and carried out deals with
Dominguez. However, his constant presence with Lopez
must be accorded some importance. See Mendoza, 457
F.3d at 730 (“One of the factors that sentencing judges
should examine while assessing a defendant’s role in a
criminal enterprise is the defendant’s relationship with
the enterprise’s principal members.”). The trust Lopez
placed in Bautista was clear from the evidence showing
that Lopez discussed his transaction with Dominguez
in front of Bautista, took Bautista along to the lab site,
and enlisted Bautista to help carry the pseudoephedrine
into a functioning meth lab in the basement of Chela’s.
Additionally, it is notable that Bautista drove the vehicle
containing the pound of meth on September 24, 2004. See
United States v. Rodriguez-Cardenas, 362 F.3d 958, 960 (7th
Cir. 2004) (finding no clear error in denying a minor
14 No. 07-1620
role reduction for a defendant who made two drug de-
liveries because of the important role couriers play in
drug distribution). In Mendoza, we affirmed the district
court’s denial of a role reduction based upon the ap-
parent close relationship the defendant had with the
ringleader, and the fact that the defendant acted as a
courier. Mendoza, 457 F.3d at 729-30. Both of those factors
are present here. The district court stated that it re-
viewed the trial and post-trial evidence, found that
Bautista was involved “on several different days in dif-
ferent ways,” and concluded that Bautista was not en-
titled to a role reduction. We are not left with the “definite
and firm conviction that a mistake has been committed”
necessary to reverse. Id. at 729.
III.
We conclude that the district court was presented
with sufficiently reliable information to support its deter-
mination that Bautista was responsible for between five
and fifteen kilos of meth, and further conclude that
Bautista was unsuccessful in showing that he and his co-
defendants were incapable of producing a quantity of
meth within that range. Additionally, the district court’s
conclusion that Bautista was not a minimal or minor
participant in the meth conspiracy was not clearly er-
roneous. Accordingly, we AFFIRM Bautista’s sentence.
USCA-02-C-0072—7-14-08