United States v. Jose Antonio Herrera

948 F.2d 1046
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 5, 1991
Docket90-2091
StatusPublished
Cited by6 cases

This text of 948 F.2d 1046 (United States v. Jose Antonio Herrera) 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. Jose Antonio Herrera, 948 F.2d 1046 (7th Cir. 1991).

Opinion

KANNE, Circuit Judge.

Jose Antonio Herrera pled guilty to a three count indictment charging him with (1) conspiracy to possess with intent to distribute in excess of fifty kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2; (2) possession with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) travel in interstate commerce to facilitate the distribution of cocaine in violation of 18 U.S.C. §§ 1952(a)(3) and (2). The district court sentenced Herrera to 482 months in prison to be followed by an eight-year period of supervised release. He now appeals his sentence. We affirm.

Jose Herrera and his sister, Matilde Herrera, supervised a cocaine distribution ring in Chicago, Illinois. From June 1988 to May 1989, Felipe Borges, a kilogram level distributor of cocaine living in Milwaukee, Wisconsin, regularly contacted Matilde to arrange cocaine purchases. During this period, Jose Herrera was responsible for delivering the cocaine to Borges. Borges typically took delivery either at his apartment in Milwaukee, or at the Herreras’ apartment in Chicago. Each cocaine delivery ranged in quantity from one to twenty-seven kilograms. Herrera made the deliveries alone until February 1989, when he was accompanied by Filberto Espino Marin, another member of the Herrera ring.

On May 23,1989, Borges was arrested in Milwaukee with two kilograms of cocaine. He informed police about his involvement in the Herrera distribution ring, and, after consulting with his attorney, agreed to set up another cocaine transaction. Borges then placed a series of phone calls with the Herreras to discuss terms for another cocaine delivery. Law enforcement agents recorded each of these conversations. Shortly thereafter on May 27, 1989, Herrera and Marin were arrested while en route from Chicago to Milwaukee. Marin was carrying five kilograms of cocaine.

Herrera and Marin were tried jointly. At trial, Borges testified against both defendants. Following the completion of Borges’ testimony, Herrera and Marin both withdrew their pleas of not guilty and entered pleas of guilty.

Prior to Herrera’s sentencing hearing, the district court advised Herrera to submit all written objections to the probation department’s presentence report by January 12, 1990. Although Herrera did provide the probation department with several generalized objections to the presentence report, he did not include any substantive evidence to support his objections. Rather, at the outset of the sentencing hearing on January 19, 1990, Herrera indicated his preference to present corroborating evidence during the hearing itself. The district court, however, refused to accept this evidence, stating that “I’m simply going to have you deliver all the information that you have ... to the probation department, and we’re going to check it out.” The district court then scheduled a continued sentencing hearing for April 27, 1990.

The only evidence Herrera presented at the continued hearing was his own testimony. When asked about the quantity of cocaine he delivered to Borges, Herrera testified that he did not bring Borges more than fifty kilograms. The trial court rejected his testimony, and instead adopted the government’s contentions contained in the presentence report — based largely on the testimony of Borges — which determined that Herrera distributed at least seventy-seven kilograms of cocaine between June 1988 and May 27, 1989. Accordingly, the district court placed Herrera’s responsibility for his charged conduct in excess of fifty kilograms and assigned him a base offense level of 36 pursuant to Sentencing Guideline 2D1.1.

*1048 We first examine whether the district court committed reversible error by determining that Herrera distributed more than fifty kilograms of cocaine. The law is well-settled that this court will not disturb a district court’s sentencing determination if it results from a proper application of the Sentencing Guidelines to factual findings which are not clearly erroneous. 18 U.S.C. § 3742; United States v. Vopravil, 891 F.2d 155, 157 (7th Cir.1989); United States v. Herrera, 878 F.2d 997, 999-1000 (7th Cir.1989). A finding of fact is clearly erroneous only if, after reviewing the evidence, we are left “with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Findings of fact include calculations of the quantity of cocaine attributable to a defendant’s relevant offense conduct and are therefore measured by a clearly erroneous standard. United States v. Ocampo, 890 F.2d 1363, 1372 (7th Cir.1989).

Herrera contends that the district court reached an erroneous sentencing determination because it mistakenly relied on the government’s analysis of the testimony of Felipe Borges. According to Herrera, Borges’ testimony was too “vague and speculative” to form the basis of a quantitative finding that Herrera had distributed more than fifty kilograms of cocaine. Herrera also argues that the district court committed error by improperly basing his sentence on evidence which was previously presented in Marin’s earlier sentencing hearing. We find both arguments merit-less.

Borges’ testimony was more than sufficient to establish that Herrera delivered in excess of fifty kilograms of cocaine between June 1988 and May 1989. He testified that from June 1988 to February 1989, he received up to ten kilograms of cocaine from Herrera every two weeks, although the normal quantity delivered was only one kilogram. After February 1989, however, Borges stated that the cocaine deliveries ranged between five and fifteen kilograms of cocaine per trip, including one delivery containing over twenty-seven kilograms. These larger deliveries occurred biweekly — with the exception of a month- and-a-half period in April 1989 in which no cocaine was purchased — until Herrera’s arrest on May 27, 1989. Based on this testimony, the government placed Herrera’s responsibility for his charged conduct at seventy-seven kilograms of cocaine.

The district court also had ample opportunity to listen to and observe Felipe Borges during his testimony and cross-examination, and thus it could reasonably have found Borges to be a credible witness.

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Bluebook (online)
948 F.2d 1046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jose-antonio-herrera-ca7-1991.