United States v. Cojab

978 F.3d 341
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 27, 1992
DocketNo. 91-3903
StatusPublished

This text of 978 F.3d 341 (United States v. Cojab) 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. Cojab, 978 F.3d 341 (7th Cir. 1992).

Opinion

KANNE, Circuit Judge.

Marcos Cojab • was charged with one count of conspiracy to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, and 18 U.S.C. § 2, and one count of possessing with the intent to distribute five hundred grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He was convicted on the first count and was subsequently sentenced to a 405 month term of imprisonment and a fine of $25,000. Cojab now appeals from that sentence. For the following reasons, we affirm.

Cojab was the organizer and leader of a Miami-based cocaine distribution ring which employed a number of couriers and targeted its spheres of influence in New Jersey, Wisconsin and Bermuda. Rayborn Hendrix was the man responsible for managing Cojab’s Wisconsin segment of the “business.” Cojab would supply Hendrix with the cocaine, and he would in turn sell the cocaine to Charles Lee, a local distributor in southeastern Wisconsin. However, unbeknownst to Cojab and Hendrix, Lee began working as an informant for the Drug Enforcement Administration (“DEA”). In 1989, he introduced two undercover DEA agents to Hendrix as potential cocaine buyers who hoped to purchase over five kilograms of cocaine. A single kilogram, as a test, was to be exchanged prior to the full shipment.

On November 10, 1990, a test kilogram of cocaine was brought from Florida to Wisconsin. Hendrix inspected the cocaine at a Holiday Inn, and he left with approximately half the kilogram so that he could show it to the undercover agents. The very next day, the DEA returned to the Holiday Inn with a search warrant. The remaining cocaine was found inside a guest room of the hotel, as well as the two marijuana cigarettes and a slip of paper with Cojab’s pager number on it. Hendrix was quickly arrested, but he agreed to cooperate. with the DEA to set up Cojab in a larger transaction. Cojab, who was in Florida awaiting extradition to New Jersey on the homicide charges of one of his other couriers, negotiated the deal from his cell in the Dade County Jail. Again, a one-kilogram deal was arranged. After instructions were given to the undercover agents by Cojab’s wife, Liset, two other couriers — Frank Valdes and Richard Ruiz — delivered the kilogram to the agents. Valdes, Ruiz and Cojab’s wife were arrested shortly thereafter.

[343]*343Cojab pleaded guilty to the conspiracy count, and the possession count was subsequently dismissed. At sentencing, the district court ruled that Cojab was not entitled to a two-level reduction for acceptance of responsibility under the Sentencing Guidelines and, further, that a four-level increase was warranted since Cojab was an organizer or leader of criminal activity which involved five or more participants. The court alternatively held that Cojab’s criminal activity qualified as “otherwise extensive” — a finding which would independently justify the four-level upgrade. Accordingly, the district court sentenced Cojab to 405 months imprisonment and a fine of $25,000.

Cojab first contends that the district court erred by refusing to grant him a two-level reduction for “acceptance of responsibility” under section 3E1.1 of the Sentencing Guidelines. Section 3E1.1 allows for a two-point reduction in the defendant’s base offense level if the defendant “clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” The district court held that Cojab did not merit such a reduction because he entered his plea of guilty solely as an attempt to dismiss charges against his wife. The district court also found that Cojab failed to provide any financial information to the probation office. Cojab now argues on appeal that by refusing to grant the reduction, the district court improperly applied the acceptance of responsibility provision in a manner penalizing him for exercising his fifth amendment privilege against self-incrimination.

We review challenges to a district court’s sentencing determination under a deferential standard. United States v. Golden, 954 F.2d 1413, 1416 (7th Cir.1992). To the extent that the sentencing determination turns on questions of fact, the district court’s findings will not be disturbed unless we are left “with the definite and firm conviction that a mistake has been committed.” Id.; United States v. Vopravil, 891 F.2d 155, 157 (7th Cir.1989); United States v. Herrera, 878 F.2d 997, 1000 (7th Cir.1990). A question involving the interpretation of a Guidelines term, by contrast, is a matter of law subject to de novo review. Golden, 954 F.2d at 1416; United States v. Teta, 918 F.2d 1329, 1332 (7th Cir.1990).

As Cojab correctly points out, the Supreme Court has repeatedly held that the government may not impose a penalty on a person for asserting the fifth amendment privilege. Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984); Lefkowitz v. Cunningham, 431 U.S. 801, 804-08, 97 S.Ct. 2132, 2135-37, 53 L.Ed.2d 1 (1977); Lefkowitz v. Turley, 414 U.S. 70, 77-84, 94 S.Ct. 316, 322-25, 38 L.Ed.2d 274 (1973); Uniformed Sanitation Men v. Commissioner of Sanitation, 392 U.S. 280, 284-85, 88 S.Ct. 1917, 1919-20, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 276-79, 88 S.Ct. 1913, 1915-16, 20 L.Ed.2d 1082 (1968). Among the penalties specified in these cases are, inter alia, the loss of a job, loss of state contracts, loss of future contracting privileges with the state, loss of political office, loss of the right to run for political office in the future and revocation of probation. All of the above are “penalties” that cannot be imposed on the exercise of the privilege. However, we believe that the denial of the two-level reduction at issue here is more properly characterized as a "denied benefit,” rather than a “penalty.” See United States v. Mourning, 914 F.2d 699 (5th Cir. 1990); United States v. Gordon, 895 F.2d 932 (4th Cir.), cert. denied, — U.S. —, 111 S.Ct. 131, 112 L.Ed.2d 98 (1990); United States v. Trujillo, 906 F.2d 1456 (10th Cir.), cert. denied, — U.S. —, 111 S.Ct. 396, 112 L.Ed.2d 405 (1990);

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Related

Gardner v. Broderick
392 U.S. 273 (Supreme Court, 1968)
Lefkowitz v. Turley
414 U.S. 70 (Supreme Court, 1973)
Lefkowitz v. Cunningham
431 U.S. 801 (Supreme Court, 1977)
Corbitt v. New Jersey
439 U.S. 212 (Supreme Court, 1978)
Minnesota v. Murphy
465 U.S. 420 (Supreme Court, 1984)
United States v. Jose Rafael Perez-Franco
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United States v. Alvaro Herrera
878 F.2d 997 (Seventh Circuit, 1989)
United States v. Ronald Henry
883 F.2d 1010 (Eleventh Circuit, 1989)
United States v. Joseph Vopravil
891 F.2d 155 (Seventh Circuit, 1989)
United States v. Carl N. Decicco
899 F.2d 1531 (Seventh Circuit, 1990)
United States v. Julio Oliveras
905 F.2d 623 (Second Circuit, 1990)
United States v. Stan Musial Trujillo
906 F.2d 1456 (Tenth Circuit, 1990)
United States v. Sidney Francis Mourning
914 F.2d 699 (Fifth Circuit, 1990)
United States v. Daniel P. Teta
918 F.2d 1329 (Seventh Circuit, 1990)
United States v. Anthony Defelippis
950 F.2d 444 (Seventh Circuit, 1991)
United States v. Larry Golden
954 F.2d 1413 (Seventh Circuit, 1992)
Robertson v. United States
498 U.S. 962 (Supreme Court, 1990)

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Bluebook (online)
978 F.3d 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cojab-ca7-1992.