United States v. Nunez-Guzman
Opinion of the Court
ORDER
A jury convicted Bernabe Nunez-Guzman on three of eight counts of a second superseding indictment charging him and nine others with participating in the large-scale cultivation of marijuana near Green Bay, Wisconsin. The district court ordered him to serve 136 months in prison, a term well below the low end of the range suggested by the Sentencing Guidelines. Nunez-Guzman appeals both his conviction and sentence. He contends that the court should have suppressed the identification of one of the witnesses who named him as a participant in the marijuana operation, on the ground that the identification was the product of improperly suggestive questioning and display of his photograph to the witness by a law enforcement officer. He also contends that the district court committed procedural error in sentencing him, in that the court held him accountable for conduct underlying charges on which the jury had acquitted him, and further that the court did not adequately consider several of his arguments in mitigation. Because none of these arguments has merit, we affirm Nunez-Guzman’s conviction and sentence.
I.
Our summary of the facts may be brief. The conspirators in this case were charged with cultivating thousands of marijuana plants at multiple sites in northeastern Wisconsin during the spring and summer of 2010. Adopting a practice popularized by Mexican drug cartels, the conspiracy grew much of the marijuana on plots secreted within federal lands, including the Chequamegon-Nicolet National Forest and the nearby Menominee Indian Reservation. Raul Juvenal Avila-Rodriguez (“Raul Avila”) ran the cultivation operation from a residence in Seymour, Wisconsin, a small town roughly fifteen miles from the city of Green Bay. The residence — a converted cheese factory — was used to dry and process marijuana plants that had been harvested from the grow sites. Law enforcement agents raided the property in August 2010 and immediately saw that it was being used to prepare large quantities of marijuana for distribution. They arrested Raul Avila and eight undocumented Mexican nationals who were assisting him with the operation.
Nunez-Guzman owned the Seymour residence; in addition, a 1994 blue pick-up truck that had been used by the conspirators was titled to his business. At trial, Nunez-Guzman testified that he was simply an unwitting, innocent landlord who had leased the residence and truck to people he had no idea were putting them to illegal use. Two witnesses, however, tied him directly to the conspiracy. Jose Louis Sandoval-Mendoza (“Sandoval”) and Javier Navarro-Zarragoza (“Navarro”), were among the eight men arrested at the Seymour residence along with Raul Avila; and both testified on the government’s behalf at trial. They knew Nunez-Guzman by the nickname “Green Bay,” identified him at trial, and indicated that he assisted Raul Avila with the management of the marijuana operation. Sandoval testified that when
II.
A.
Before trial, Nunez-Guzman unsuccessfully sought to suppress evidence that Sandoval had, during post-arrest questioning, identified a photograph of him as “Green Bay,” and also to preclude any such in-court identification of Nunez-Guzman by Sandoval. Nunez-Guzman argued that the out-of-court identification was the product of impermissible suggestion by the agent who questioned him, in that the agent essentially conducted a “show-up” by presenting Sandoval with a driver’s license photograph of Nunez-Guzman. See R. 45-1. After conducting an evidentiary hearing on Nunez-Guzman’s motion, at which a video recording of the interview of Sandoval was played, the district court (Hon. William C. Griesbaeh) declined to suppress the identification. The court noted that this was “very unusual and not like the typical identification motion,” R. 315 at 46, in which a victim or witness who had only a brief opportunity to observe the perpetrator of a crime is asked to view a lineup or photograph array and indicate whether the authorities have identified the correct suspect, id. at 46-47. Instead, in the course of questioning Sandoval at length about the marijuana operation, the agent had shown him pictures of various men and asked whether Sandoval recognized them. Sandoval himself had taken part in the marijuana operation and had worked on a daily basis with most of the persons whose pictures he was shown. Id. at 47. Given Sandoval’s familiarity with the scheme and its participants, the agent interviewing him about the scheme could expect that Sandoval would be able to readily identify his criminal cohorts from photographs without the sort of difficulty that a victim or bystander might have. So the court did not find it remarkable that the agent would show Sandoval a series of photographs and ask him whether or not he could identify the individuals depicted. Id. When the agent showed Sandoval the
We review the district court’s decision to deny the motion to suppress de novo, granting appropriate deference to any factual findings underlying its ruling. See United States v. Recendiz, 557 F.3d 511, 524 (7th Cir. 2009).
The district court correctly denied the motion to suppress Sandoval’s identification of Nunez-Guzman. The first and key question in this case, as both parties agree, is whether the agent who questioned Sandoval did anything to suggest that the photograph he showed to Sandoval was one of Nunez-Guzman. See Perry v. New Hampshire, — U.S. -, 132 S.Ct. 716, 724, 181 L.Ed.2d 694 (2012); Neil v. Biggers, 409 U.S. 188, 196, 198, 93 S.Ct. 375, 380, 381-82, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 383-84, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); United States v. Sanders, 708 F.3d 976, 983 (7th Cir. 2013), cert. denied, — U.S. -, 134 S.Ct. 803, 187 L.Ed.2d 608 (2013). For the following reasons, he did not.
The agent showed Sandoval a series of photographs, which included photos of Nunez-Guzman along with other co-conspirators (including one of Sandoval himself), and asked Sandoval to identify anyone he knew. Some of the photographs Sandoval recognized; others he did not. Sandoval was an active participant in the charged conspiracy who had some familiarity with Nunez-Guzman and the other participants, so there was nothing out of the ordinary or suspect about this approach.
The photograph of Nunez-Guzman was different from the others in the sense that it was a DMV photograph (although, according to the agent, it was folded and thus not identifiable as such when shown to Sandoval) rather than a jailhouse mug shot, but we cannot see how the difference was prejudicial to Nunez-Guzman. Sandoval was not shown a photographic array, in which such a difference might be the springboard to argue that the witness was being steered to pick a particular photograph. See Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003) (“The danger to be avoided in identification procedures is that of orchestrating the procedure so that one particular suspect stands out from the others and the procedure implicitly suggests to the witness that ‘this is the man.’ ”) (emphasis in original) (citing Foster v. California, 394 U.S. 440, 442-43,
Apart from the nature of the photograph, there is no evidence suggesting that the agent who interviewed Sandoval in any way influenced the indentifieation. He did not, for example, show Sandoval the photograph and ask, “Is this Green Bay?” (Indeed, the agent testified that he did not even know, prior to Sandoval’s identification, that “Green Bay” was the individual depicted in the photograph.)
Nunez-Guzman suggests that the district judge found or implied that Sandoval said “This is Green Bay,” before the agent showed Sandoval the photograph of Nunez-Guzman. But this is a misreading of both the judge’s remarks and the evidence. The video recording indicates that the identification came after the agent placed the photograph of Nunez-Guzman on the table in front of Sandoval. R. 149-1 at 11; Gov. Ex. 4. The judge did not indicate otherwise. The confusion appears to arise from the following remark by the judge: “The depiction in the video is, ‘Here is Green Bay
As Nunez-Guzman points out, the agent and Sandoval had spent time discussing “Green Bay” and his rolé in the conspiracy just before the photograph of Nunez-Guzman was presented to Sandoval. But there is nothing which suggests that this discussion somehow influenced Sandoval’s identification. Rather than indicating to Sandoval or asking him whether the photograph was one of “Green Bay,” the agent instead said to Sandoval, “Okay, I already have so many photos. All right, I want you to see these people to see if you recognize them, O.K.?” R.149-1 at 11. At that point, he placed the photograph of Nunez-Guzman in front of Sandoval, and Sandoval said, “Here is ‘Green Bay.’ ” Id.
Finally, as Judge Griesbach noted, Sandoval’s exposure to Nunez-Guzman during the ride from the Green Bay airport gave him a basis independent of what
B.
We move on to the sentence. In determining the offense level, the district court held Nunez-Guzman responsible for the full amount of marijuana involved in the charged conspiracy, notwithstanding his acquittal on some of the substantive marijuana charges. See U.S.S.G. § lB1.3(a)(l)(B) & (a)(2); § 2Dl.l(c) & comment, (n. 12) (Nov. 2011).
Nunez-Guzman contends that the district court committed two types of procedural error in arriving at his sentence. First, he contends that, in view of his acquittals on some of the substantive marijuana counts and both of the firearms charges, the court was mistaken to consider as relevant conduct both the total amount of marijuana involved in the conspiracy as well as the AK-47 that the court found he supplied to Raul Avila. Second, he maintains that the court, in determining a sentence that was reasonable in light of the sentencing factors set forth in 18 U.S.C. § 3553(a), did not give adequate consideration to his acquittals, to his likely deportation as a result of his convictions, and to the many letters of support sent to the court by community members. Whether the court committed a procedural error of the types identified by Nunez-Guzman presents a question of law that we review de novo. E.g., United States v. Lyons, 733 F.3d 777, 784 (7th Cir. 2013).
The court properly held Nunez-Guzman to account for the total amount of marijuana involved in the conspiracy. Pursuant to the relevant conduct guideline, when a defendant has engaged in criminal activity jointly undertaken with others, he is responsible at sentencing for the reasonably foreseeable acts of his cohorts in furtherance of the joint undertaking as well as his own acts. U.S.S.G. § lB1.3(a)(l)(B) & (a)(2); id. comment, (nn. 2(a)(1), (c)(3),
Likewise the court did not err in applying the gun enhancement based on Nunez-Guzman’s provision of the AK-47 to his co-conspirators. Although the jury had acquitted him of the two firearms charges, it is settled, as the cases we have just cited establish, that such an acquittal does not preclude the court at sentencing from considering the same conduct, so long as the court finds by a preponderance of the evidence that the conduct occurred. In this case, the court found by a preponderance that Nunez-Guzman had obtained an AK-47 and supplied it to his co-conspirators. R. 317 at 9, 31-32. Regardless of whether he had been charged with or acquitted of that act, it remained conduct that was relevant to his counts of conviction and which the Guidelines expressly directed the court to consider in ascertaining the offense level. § 2Dl.l(b)(l).
Finally, apart from the calculation of the offense level, the court committed no procedural error in weighing the statutory sentencing factors that bear on a reasonable sentence. The court did, in fact, consider the jury’s decision to acquit Nunez-Guzman on the firearms charges and certain of the substantive marijuana counts. R. 317 at 7-8, 26-27. However, the court believed that these acquittals were more likely the result of jury compromise and lenity rather than a reliable indicator that Nunez-Guzman was factually innocent of the charges. Id. at 26-27. Having presided over the trial and being far more familiar with the evidence than we are, we cannot fault the court for its conclusion. In any case, the pertinent point for our purposes is that the court did explicitly address the acquittals. Similarly, the court did acknowledge and take into account the likelihood that Nunez-Guzman’s convictions would likely lead to his deportation from the United States. Id. at 35. The court also acknowledged, discussed, and considered the strongly supportive letters it had received from members of Nunez-Guzman’s church and community. Id. at 26, 36.
The court’s decision to impose a term of imprisonment that was barely more than
III.
For the reasons set forth above, we AFFIRM the conviction and sentence.
. Nunez-Guzman was sentenced pursuant to the November 2011 version of the Sentencing Guidelines, and therefore all of our cites are to that version.
Reference
- Full Case Name
- United States v. Bernabe NUNEZ-GUZMAN
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