United States v. Benito Mojica

863 F.3d 727, 2017 WL 2991743, 2017 U.S. App. LEXIS 12662
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 14, 2017
Docket16-2985
StatusPublished
Cited by10 cases

This text of 863 F.3d 727 (United States v. Benito Mojica) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Benito Mojica, 863 F.3d 727, 2017 WL 2991743, 2017 U.S. App. LEXIS 12662 (7th Cir. 2017).

Opinion

BAUER, Circuit Judge.

Appellant Benito Mojica appeals his conviction on two counts for various drug-trafficking crimes. Mojica claims that the district court improperly denied his motion to Suppress cocaine and other evidence. He also challenges his sentence, disputing the district court’s finding that he was jointly accountable for 18.084 kilograms of cocaine. We affirm.

I. BACKGROUND

A. , Investigation and Arrest

Beginning, in 2011, the FBI and other law enforcement agencies investigated a large-scale cocaine-trafficking organization operated by Jose de Jesus Ramirez-Padilla (known as “Gallo”), in Chicago, Illinois. Federal agents placed court-authorized wiretaps on Gallo’s phones, which intercepted numerous calls. As a result of this investigation, the government charged 40 individuals; including Mojica, with various drug-trafficking crimes.

In May 2012, Gallo was robbed at gunpoint Outside of his residence where he initially kept his drugs and money. Because he worried that the robbers would return to burglarize his home, he looked for a,new place to store his drugs and money. Gallo learned from his brothers that Mojica, who was one of Gallo’s regular customers, had an apartment to rent. 1 Mo- *730 jica co-owned a two-story residence on 46th Place in Chicago, where he lived with his family on the first floor and rented out the second floor.

On May 8, 2012, Gallo called Mojica, telling him that he was recently robbed at gunpoint and that he was looking for an apartment. Gallo explained to Mojica that he wanted his brothers, Luis Ramirez-Padilla (“Luis”) and Horacio Ramirez-Padilla (“Horacio”), to use Mojica’s second-floor apartment as a stash house. Gallo assured Mojica that his brothers would not bring customers to Mojica’s apartment. Mojica agreed to this arrangement and provided a stash house for Gallo’s cocaine and drug proceeds from May 20, 2012, until September 27, 2012.

On September 27, 2012, federal agents executed an arrest warrant for Mojica. After his arrest, he was transported to the street outside the front of his home. Meanwhile, other agents executed a search warrant for the first and second floors of Mojica’s two-story residence. The agents searched the second floor, which was rented out to Gallo’s brothers, Luis and Horacio. During the search, agents found $113,991.60, 86 grams of cocaine, scales, a cutting agent, and cell phones.

The agents also searched the first floor residence where Mojica lived with his family. There, FBI Agent Gustavo Martinez interviewed Mojica’s wife, Sonia Mojica; he learned that Mojica possessed the only keys to their detached garage, located near the rear of the property. The keys to the garage were obtained from Mojica, who was outside in an agent’s vehicle. Sonia gave the agents consent, both orally and in writing, to search the detached garage where the agents found cell phones, various papers, several boxes of baggies, and two baggies containing cocaine. There was a notepad near the bags of cocaine with Luis’ phone number followed by the words “Gallo #2.”

B. Procedural History

On January 8, 2013, a grand jury returned an indictment charging 23 individuals, including Mojica, with drug-trafficking crimes. Specifically, Mojica was charged with conspiracy and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Mojica’s trial was severed from his co-defendants and ended in a mistrial.

On July 8, 2014, a grand jury returned a superseding indictment, charging Mojica with the same crimes charged in the original indictment plus two counts of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and four counts of using a cell phone in the commission of a felony in violation of 21 U.S.C. § 843(b).

Mojica filed a motion to suppress, arguing that Sonia lacked the authority to consent to the search of the garage. The district court held a hearing on January 14, 2015, where several witnesses testified, including Sonia and Agent Martinez. The district court concluded that Sonia had actual authority to consent to the search of the garage, finding that Mojica’s possession of the garage keys was not exclusive and that Sonia had the right to authorize entry to the garage without specific permission from Mojica. The district court also concluded that Sonia had apparent authority, finding that she told Agent Martinez that she was married to Mojica for 21 years and that she rarely went into the garage. The district court found that, having no information to the contrary, the agents were allowed to rely on the presumption that a spouse has authority to consent to a search of all areas of the homestead.

*731 At trial, the government introduced wiretapped calls, expert testimony about drug trafficking methods, and the evidence found during the search. The government also introduced testimony from Gallo, who pleaded guilty and agreed to cooperate.

Gallo testified that he started making multiple-kilogram purchases of cocaine— up to three kilograms at a time—while using Mojica’s property as a stash house. Although Gallo did not testify as to how frequently he purchased two to three kilograms, he testified that he replenished his supply as he sold out. Gallo testified that his brothers stored up to three kilograms of cocaine and up to $150,000 while using Mojica’s second-floor apartment as a stash house.

On February 5, 2015, the jury convicted Mojica on all counts of the superseding indictment. Mojica moved for a judgment of acquittal or a new trial; the court denied the motion.

The Probation Office prepared the Pre-sentence Investigation Report, recommending that Mojica be held jointly responsible for one kilogram of cocaine per week for 18 weeks, plus 84 grams that Mojica acquired before he rented out the apartment to further the conspiracy. This totaled 18.084 kilograms of cocaine, resulting in a base offense level of 32. See U.S.S.G. § 2Dl.l(c)(4) (assigning an offense level of 32 for at least 15 kilograms but less than 50 kilograms of cocaine). With an offense level of 32 and a criminal history category of I, the corresponding advisory Sentencing Guidelines range was 121-151 months’ imprisonment. Mojica filed objections to the PSR, arguing that the record did not support him being held accountable for 18.084 kilograms of cocaine.

At sentencing, the district court rejected Mojica’s objections to the PSR, adopted the PSR’s recommendations, and sentenced Mojica to 121 months’ imprisonment. This appeal followed.

II. DISCUSSION

Mojica raises' two main arguments.

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Cite This Page — Counsel Stack

Bluebook (online)
863 F.3d 727, 2017 WL 2991743, 2017 U.S. App. LEXIS 12662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-benito-mojica-ca7-2017.