United States v. Rodrigues, Jesse M. , 251 F. App'x 358 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 11, 2007
Decided October 17, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1173
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Western District of Wisconsin
v. No. 05-CR-164-C-02
JESSE M. RODRIGUES, Barbara B. Crabb,
Defendant-Appellant. Chief Judge.
ORDER
Jesse Rodrigues was indicted for conspiring to distribute 500 grams or more
of methamphetamine and entered a guilty plea pursuant to a written plea
agreement. See 21 U.S.C. §§ 841(a)(1), 846. He now appeals the 292-month
sentence imposed, arguing primarily that the district court considered unreliable
evidence—witnesses statements reported in his PSR—in deciding to increase his
sentence for possessing a weapon and being a manager or supervisor of the
conspiracy, as well as in determining the quantity of drugs he was responsible for.
We affirm.
No. 07-1173 Page 2
Background
The witness statements in his PSR revealed that Rodrigues supplied the
methamphetamine in the drug conspiracy case. According to the statements of his
co-conspirators and customers, he had several people working for him during the
conspiracy who acted in the capacity of middlemen who handled drug transactions
on his behalf or as enforcers sent to collect drug debts. Guns were an important
part of the conspiracy—witnesses stated that Rodrigues would often accept guns as
payment for drugs, and one witness stated that Rodrigues always carried a weapon.
After his conviction, based on information received, the probation office
recommended that Rodrigues receive two upward adjustments to his offense
level—a two-level adjustment for possessing a weapon during the offense, see
U.S.S.G. § 2D1.1(b)(1), and a three-level adjustment for being a manager or
supervisor, id. § 3B1.1(b).
Rodrigues was asked twice by the district court if he wanted to challenge the
accuracy of any of the facts supporting the adjustments at an evidentiary hearing or
whether he simply wanted to challenge the application of the adjustments to the
facts as set forth in the Presentence Investigation Report. On the first occasion he
asked for more time to decide, and the court granted his request. Two weeks later
Rodrigues informed the court that he did not want an evidentiary hearing. But all
was not quite resolved. Two hours before his rescheduled sentencing hearing,
Rodrigues submitted objections to the PSR challenging the accuracy of some of the
facts in the PSR as well as the application of the guidelines to those facts. The
district court asked Rodrigues’s counsel to clarify the nature of his challenge once
again, and he assured the court that he wanted to challenge only the application of
the adjustments to the facts in the PSR. The court then asked him if it could accept
the facts in the PSR as true, and counsel concurred. The court decided that the
facts in the PSR supported the application of both adjustments and increased
Rodrigues’s sentence accordingly. At no time did Rodrigues challenge the drug
quantity calculated in the PSR, which was accepted by the district court.
Analysis
Rodrigues’s principal argument on appeal is a general challenge to the
reliability of the evidence used to support the adjustments under U.S.S.G.
§§ 2D1.1(b)(1) and 3B1.1(b). He contends that the evidence is unreliable because
unspecified statements in the PSR consist of hearsay or were made by his
potentially biased co-conspirators.
The government correctly maintains that Rodrigues waived rather than
forfeited this argument in the district court when, on two separate occasions, he
denied that he had any intention of challenging the accuracy of the facts in the PSR
No. 07-1173 Page 3
on which the adjustments are based. Waiver is the intentional relinquishment of a
known right and precludes appellate review while forfeiture is the failure to assert
a right and allows for plain-error review. United States v. Charles, 476 F.3d 492,
495 (7th Cir. 2007).
The record here indicates that Rodrigues intentionally relinquished a known
right. He did not simply overlook the possibility of challenging the facts in the PSR.
On the contrary, he considered this possibility and rejected it in favor of a different
argument. For example, the court gave him a two-week continuance for the express
purpose of deciding whether he wanted to challenge the facts in the PSR or merely
the application of the guidelines to those facts, and he responded that he wanted to
pursue the latter course. Then, at the sentencing hearing, Rodrigues clarified even
further that he intended to forgo a factual challenge to the PSR. First, when the
court pointed out that Rodrigues’s objections had been submitted so late that the
government did not have time to prepare, and much less call, witnesses to support
its version of the facts, Rodrigues’s lawyer asserted that the government did not
need to put on witnesses because he intended to assume the truthfulness of all the
facts in the PSR and argue only that those facts did not support the adjustments
applied for his possession of a weapon and being the leader or organizer. When the
court then asked if it could accept every statement in the PSR as true, counsel
answered in the affirmative. Later counsel reiterated that Rodrigues would accept
the facts in the PSR as true and proper and what was disputed was whether those
facts warranted the adjustment.
The transcript also shows that Rodrigues’s choice was based on strategic
concerns. See United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005)
(defendant who forgoes an argument for strategic reasons has waived that
argument); United States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001) (same). For
example, counsel said that Rodrigues did not want to have a factual hearing on the
adjustments because he did not want to risk losing a reduction in his offense level
for acceptance of responsibility. Having conceded strategically in the district court
that the facts in the PSR are true, Rodrigues has waived his argument that the
district court should not have considered those very same facts.
Rodrigues also appears to renew his assertion that, even assuming the facts
in the PSR to be true, they do not warrant the application of the adjustments under
U.S.S.G. §§ 2D1.1(b)(1) and 3B1.1(b). His arguments on this point, however, are
cursory. For example, he does not explain why the adjustment for possessing a
weapon should not apply to him, and the record supports the district court’s
decision to apply it. According to statements in the PSR, he accepted guns as
payment for the drugs he distributed and always had a gun with him. This
evidence shows that Rodrigues possessed guns during the offense, and that is all
the government had to show to justify the imposition of the adjustment under
No. 07-1173 Page 4
§ 2D1.1(b)(1). See United States v. Berthiaume, 233 F.3d 1000, 1003–04 (7th Cir.
2000) (evidence that defendant accepted gun at a discount to settle a drug debt
sufficient to support application of adjustment).
As for the adjustment under § 3B1.1(b) for being a manager or supervisor of
the conspiracy, Rodrigues points to the statements in the PSR that he handed off
customers to other people in hopes of demonstrating that he was neither a manager
nor a supervisor. His argument is at best confusing, for he appears to suggest that
these people were really in charge of the sales because they dealt directly with the
customers and thus were not controlled by him. But witnesses quoted in the PSR
described two of the people whom Rodrigues handed customers off to as Rodrigues’s
workers or “guys.” The inference from this is that Rodrigues was in charge of the
sales and handed customers off to his underlings to avoid being caught dealing
drugs. See United States v. Johnson, No. 05-4631, 2007 WL 1583993 at *1, 3 (7th
Cir. June 4, 2007) (upholding application of adjustment for defendant who used
another to deliver drugs, conduct drug transactions, and collect debts and noting
that defendant’s lack of direct contact with customer was consistent with being a
supervisor because supervisors often want their underlings to be more exposed to
liability). This conclusion is corroborated by witnesses’ statements that Rodrigues
employed other people to collect money owed to him for drugs.
Rodrigues also makes the conclusory assertion that one of his co-conspirators,
Paul Horvatich, was above him in the conspiratorial hierarchy and was the real
leader of the conspiracy. Even if this were true, Rodrigues did not have to be the
highest person in the conspiracy to qualify for the manager or supervisor
adjustment; he just had to have a supervisory role. See United States v. Bjorkman,
270 F.3d 482, 494–95, 497 (7th Cir. 2001) (per curiam) (upholding application of
adjustment to defendant who was relatively low-level player in conspiracy but
supervised one other person). Given the evidence that Rodrigues exercised control
over several people within the conspiracy, the district court did not clearly err when
it decided that he was a manager or supervisor.
Finally Rodrigues challenges for the first time the district court’s drug-
quantity determination. Specifically, he argues that the court did not particularize
its findings explaining how it arrived at the quantity it chose. However, district
courts can satisfy their burden to make particularized findings as to drug quantity
by relying on the PSR. United States v. Arroyo, 406 F.3d 881, 889 (7th Cir. 2005);
United States v. Williams, 272 F.3d 845, 852 (7th Cir. 2001). That is what the
district court did here. Although the court did not explicitly state at the sentencing
hearing that it adopted the PSR, it did do so in its written statement of reasons.
The court also said at the sentencing hearing that the probation office calculated
the guidelines correctly. Even Rodrigues admits in his brief that the court “adopted
the assertions of [his] co-defendants as set forth in the presentence investigation
No. 07-1173 Page 5
report.” The PSR in turn supported its drug-quantity finding with a chart that
includes the names of witnesses who said they bought methamphetamine from
Rodrigues or his dealers, the dates on which they bought the drugs, and the
quantities they purchased.
Rodrigues also reiterates that the district court based its drug-quantity
finding on unreliable evidence. However, his only reason for challenging the
reliability of the drug amounts recounted by the PSR is that they are based on
statements provided by his potentially biased co-defendants. However, this fact
alone does not make the information unreliable. It should be clear that we give
great deference to a sentencing court’s credibility decisions and will not overturn a
sentencing decision just because the district court chose to believe testimony by
someone with a motive to lie. United States v. Johnson, 227 F.3d 807, 813 (7th Cir.
2000).
For the above reasons, we AFFIRM.