United States v. Perez

86 F. App'x 178
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 6, 2004
DocketNo. 03-2662
StatusPublished

This text of 86 F. App'x 178 (United States v. Perez) 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. Perez, 86 F. App'x 178 (7th Cir. 2004).

Opinion

ORDER

A jury found Bernardo Perez guilty of two counts of distributing cocaine. In cal[179]*179eulating his offense level for sentencing, the probation officer included as relevant conduct 2 kilograms of marijuana and 57.45 kilograms of marijuana-equivalent that Mr. Perez either sold during controlled buys, was storing in his bedroom, or admitted to investigators. In addition, the probation officer counted 615 kilograms of marijuana found in the basement of Mr. Perez’s apartment building at the time of his arrest. Mr. Perez objected to the inclusion of the 615 kilograms. He argued that it was not relevant conduct to his convictions for distributing cocaine. The district court disagreed and adopted the findings of the probation officer. Mr. Perez appeals his sentence only with regard to the 615 kilograms of marijuana. For the reasons set out in this order, we affirm the judgment of the district court.

I

BACKGROUND

Mr. Perez and his brother were brought to the attention of the Brown County Drug Task Force by a confidential informant who told investigators in February 2002 that she had been buying cocaine and marijuana from the two brothers for a few months. Between February 2002 and the end of May 2002, the task force made four controlled buys from Perez and five from his brother. On most occasions, an undercover officer accompanied the informant and met either Mr. Perez or his brother at the apartment that they shared or at a designated location in Green Bay, Wisconsin. Each transaction involved less than 15 grams of cocaine, except that, on one occasion, the undercover officer also bought a pound of marijuana from Mr. Perez.

On June 7, 2002, the task force arrested Mr. Perez and his brother and executed a search warrant for their residence. Officers searched the apartment and found a safe in Mr. Perez’s bedroom that contained 124 grams of cocaine, a .25 caliber handgun, a digital scale, $4,500 in a bag marked “verde,” and $2,950 in a bag marked “blanca.” Next to the safe in the closet was over a pound of marijuana. When the task force searched the basement of the apartment building, they also found — to their acknowledged surprise — 615 kilograms of marijuana, most of it packed in eleven cardboard boxes locked in a storage closet. All but one of the boxes contained five to seven 20-pound marijuana “bricks” wrapped in plastic and coated with grease and oil; the remaining box had been opened and contained only one brick. An unwrapped 21-pound brick was found in a nearby freezer along with a scale capable of weighing up to one pound.

Mr. Perez told police the following. Hugo Campa-Gonzales, a friend of the Perez brothers, had recently come to Green Bay from California and was staying with the two. On June 7, Campa told Mr. Perez to meet him at a restaurant; when Mr. Perez arrived, he was met by his brother and Campa, who asked for help in transferring boxes from a semi-trailer to a rental truck parked behind the establishment. After moving the boxes, Mr. Perez went back inside the restaurant while his brother and Campa departed in the rental truck. When Perez returned home, he found his brother and Campa unloading the boxes into the basement of his apartment building. Mr. Perez helped the two move the boxes out of the truck but not into the basement; when a box ripped open, he noticed that it contained marijuana. Mr. Perez also admitted to police that he had been selling gram or ounce quantities of cocaine. He also admitted to selling four or five half-pound quantities of marijuana over a three month period.

[180]*180Campa was arrested at the same time as Mr. Perez and his brother and recounted a similar but slightly different version of events. He admitted coming to Green Bay to pick up and deliver the 615 kilograms of marijuana in exchange for $5,000. After he took possession of the marijuana from the semi-trailer, someone was to call and arrange pickup of the entire load, but the task force intervened instead. Campa stated that Mr. Perez and his brother had helped assemble the cardboard boxes in which the marijuana was found, and afterward all three men went to where the semi-trailer was parked. After moving the marijuana into the rental truck, they went back to the brothers’ residence and stashed it in the basement. In the process, they opened one of the plastic-wrapped packages to inspect the marijuana.

Mr. Perez was indicted on one count of possession with intent to distribute the 615 kilograms of marijuana, 21 U.S.C. § 841(a)(1); one count of possession with intent to distribute cocaine, id.; two counts of distributing cocaine, id.; and one count of possession of a firearm during a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). A jury found him guilty of the two distribution charges, not guilty of the firearm charge, and hung on the remaining cocaine and marijuana possession charges.

In preparing the presentence report, the probation officer added the 615 kilograms of marijuana to the drug amounts (in marijuana-equivalents) from the undercover buys, the safe, and Perez’s admissions to the police. Mr. Perez objected to counting the 615 kilograms; he argued that it was not relevant conduct and contrasted it with the comparatively small-scale behavior underlying his cocaine convictions. The district court denied the objection and held him responsible for the 615 kilograms of marijuana, raising Mr. Perez’s base offense level from 20 to 28. See U.S.S.G. § 2Dl.l(c). Mr. Perez also received a two-level upward adjustment for possession of a firearm, see U.S.S.G. § 2D1.1(b)(1), resulting in a total offense level of 30, a criminal history category of II, and a sentencing range of 108 to 135 months. The court sentenced him to 108 months’ imprisonment and three years’ supervised release.

II

DISCUSSION

A. Standard of Review

The sole issue Mr. Perez raises on appeal is whether the 615 kilograms was properly included in his base offense level as relevant conduct. We review the district court’s determinations of relevant conduct for clear error as long as the court has applied the proper legal framework, United States v. Thomas, 199 F.3d 950, 954 (7th Cir.1999); however, “we may affirm a sentence adjustment on any ground supported by the record,” United States v. Schuh, 289 F.3d 968, 973 (7th Cir.2002). Here, we conclude that the 615 kilograms was properly attributed to Mr. Perez, but for a reason different from that given by the district court.

B. Relevant Conduct

The probation officer and the district court attributed the 615 kilograms to Mr. Perez under U.S.S.G. § lB1.3(a)(2) and (a)(1)(B), which for jointly undertaken offenses like drug trafficking direct that relevant conduct include “all reasonably foreseeable acts and omissions of others.” The probation officer opined that “it was reasonably foreseeable for Mr. Perez to be responsible for the 615 kilograms of marijuana” (PSR H 33), and the district court agreed that the “standard that the Court has to apply that — is it reasonably foresee[181]*181able that the Defendant should be responsible for this amount of marijuana” (Sen. Tr.

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Bluebook (online)
86 F. App'x 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-perez-ca7-2004.