United States v. Soto

85 F. App'x 449
Court of Appeals for the Sixth Circuit·Decided December 22, 2003·No. No. 02-2465·Published·Cited by 1 cases

Opinion

REEVES, District Judge.

Francisco Soto appeals the sentence he received after pleading guilty to a conspiracy to distribute more than 50 grams of cocaine base (crack). More specifically, he objects to the two-level enhancement imposed by the district court for possession of a weapon during the commission of a drug offense. For the reasons set forth herein, we AFFIRM the judgment of the district court.

I. BACKGROUND

On January 9, 2000, the Kalamazoo County, Michigan sheriffs department conducted a traffic stop of the defendant who, at the time, was using the name Pedro Camarena. Soto was issued a citation for impaired visibility. After noticing that the defendant was acting suspiciously, officers received permission to conduct a search of his vehicle. During this search, the officers discovered a tabulation sheet and five Ziploc bags which contained smaller packaged quantities of suspected cocaine. The drugs were seized and the defendant was arrested. Subsequently, Soto was released on a $5,000.00 cash bond.

Four days after the traffic stop and arrest, the defendant called the sheriffs office and asked for the return of his keys which had been confiscated during the search. Officers complied with this request and delivered the keys to Soto’s home later that day. Upon their arrival at the residence, officers spoke with Lou Ann Warren, who was living with Soto at the time. Following some discussion, the officers were given permission to walk through the home.

During this walk-through, officers discovered a large box in the master bedroom containing two gallon-size Ziploc bags with several smaller bags containing suspected marijuana. In addition, the officers found two digital scales, a large amount of currency, a.357 caliber handgun, and clothing and identification belonging to Soto. Fuiy ther investigation resulted in the discovery of 100.5 grams of cocaine. (J.A. at 58.) Soto was subsequently charged and convicted in state court for possession of narcotics. On March 11, 2002, pursuant to a [451] Plea Agreement, Soto received a sentence of 25 months to 20 years. (J.A. at 66.)

Prior to the defendant’s conviction in state court, the Kalamazoo Valley Enforcement Team (KVET) commenced an investigation concerning ongoing cocaine trafficking activity involving Robert Baldwin. Based on information received from a confidential informant, the KVET learned that Baldwin was acting as a “runner” for another individual, Phillip Hazen. Additional information indicated that Hazen’s supplier (identified as “Pedro”) brought marijuana and cocaine from the Chicago, Illinois area. (J.A. at 59.) Baldwin and Hazen were found together on October 18, 2001, and Baldwin was placed under arrest for outstanding warrants. A search incident to this arrest resulted in the discovery of substantial quantities of cocaine.

After waiving his Miranda rights, Hazen admitted his involvement in the distribution of cocaine and marijuana in the Kalamazoo area. During subsequent interviews, Hazen admitted that he received the drugs from an individual known as “Pedro.” Hazen reported that Pedro was in town and was in possession of a large amount of cocaine and marijuana. Hazen stated that he usually obtained approximately 9 ounces of cocaine from Pedro during separate transactions. After agreeing to order that amount, Hazen attempted to contact and eventually received a return call from Pedro.

During surveillance, and while he was en route to meet Hazen, Soto (then known as “Pedro”) committed several traffic violations and was stopped by members of the KVET. During this stop, Soto produced a driver’s license and falsely identified himself as Alvino Chavez. A consensual search of Soto’s vehicle resulted in the discovery of cocaine and marijuana located in a plastic grocery bag on the driver’s side floor board. Additional powder and crack cocaine and marijuana were later discovered at Soto’s trailer. During a subsequent custodial interrogation, Soto admitted his true identity. (J.A. at 60-61.)

II. PROCEDURAL HISTORY

On February 14, 2002, Francisco Soto, Mario Soto, Jose Soto and Philip Hazen were indicted in the United States District Court for the Western District of Michigan. Count one of the three-count indictment charged all four defendants with conspiracy to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c) and 846 between the summer of 2001 and October 18, 2001. In count two, the grand jury charged the defendant and two of his co-defendants with conspiring to distribute more than 50 grams of cocaine base between October 1 and 18, 2001, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(l)(A)(iii). Finally, in count three, Soto and two co-defendants were charged with possession of more than 50 grams of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), and 841(b)(l)(A)(iii).

On June 26, 2002, Soto entered a guilty plea to count two of the indictment pursuant to a written plea agreement. In accordance with U.S. Sentencing Guidelines Manual § 2D1.1 (c)(2) (2002), Soto was assessed a Base Offense Level of 36 as a result of the offense of conviction and the volume of drugs attributable to him from the 2000 and 2001 charges. In part, the Presentence Report contained the following factual summary relating to Soto:

Mr. Soto was arrested on January 9, 2000, for possession of 94.35 grams of powder cocaine. On January 13, 2000, Mr. Soto’s residence was searched by the police and an additional 100.5 grams of powder cocaine, 90 kilograms of marijuana, and a .357 Magnum handgun were found. Mr. Soto is considered the [452] leader in this conspiracy involving at least five participants. He recruited his brothers to participate in this matter and was responsible for paying them for their participation. He is responsible for all the drugs discovered in this conspiracy of which the government was aware prior to his proffer statement. A total of 497.58 grams of cocaine powder, 217.77 grams of marijuana, and 938.81 grams of crack cocaine were seized in this matter. Converting the quantity of drugs into marijuana equivalent produces a total of 18,875.94 kilograms of marijuana. Converting the quantity of drugs into marijuana equivalent produces a total of 39.87 kilograms of marijuana. Combining this total with the previous total utilized for the instant offense, Mr. Soto will be held accountable for 18,915.81 kilograms of marijuana.

(J.A. at 63.)

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United States v. Soto, 85 F. App'x 449 (6th Cir. 2003).

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