United States v. Uriel Soria-Ocampo
Opinion
Appellants Raphael Campuzano-Benitez and Uriel Soria-Ocampo pleaded guilty for their roles as middlemen in a cocaine deal. The formal charge was a conspiracy to possess cocaine with intent to distribute in violation of
I. Facts and Procedural History
Raphael Campuzano-Benitez and Uriel Soria-Ocampo initiated and organized the drug deal that led to their arrests and convictions. The two men had known each other before these events, and they played similar roles in the nine-person conspiracy. Soria-Ocampo knew two brothers who were trying to sell multiple kilograms of cocaine. Campuzano-Benitez knew a man named Cesar Perdomo who was looking to arrange a drug transaction for his four potential buyers.
In the days leading up to their arrests, the two appellants and Perdomo worked with their respective contacts to arrange *985 the deal. Three of the four potential buyers, however, were cooperating with law enforcement, and they recorded many of their telephone and in-person conversations with Perdomo. On June 15, 2015, Perdomo told one of the cooperating buyers that the "little cars that were just painted the other day are ready now." 1 In that conversation, the cooperating buyer told Perdomo that he would take "the five," meaning five kilograms of cocaine. Over the next few days, Perdomo negotiated the final quantity of cocaine and confirmed the details of the transaction with the cooperating witnesses. Perdomo was the only conspirator who communicated directly with the potential buyers. Appellants in turn passed along information between Perdomo and the sellers. Perdomo never spoke to Soria-Ocampo or to the sellers directly. He communicated to the sellers' side exclusively through Campuzano-Benitez, who in turn communicated only with Soria-Ocampo.
On the evening of June 17, 2015, though, the conspirators came together. The appellants met Perdomo, one of the sellers, and three of the buyers (two of whom were cooperating) before traveling to the sellers' apartment together to complete the transaction. When they arrived, appellants and the others entered the sellers' apartment with one of the cooperating witnesses. One kilogram of cocaine had been placed on a bed for the buyers to inspect. Law enforcement arrived before the transaction was complete and arrested everyone present. The officers saw and seized the single kilogram of cocaine on the bed. They later returned to find five additional kilograms of cocaine and four kilograms of heroin hidden in a closet. 2
Appellants pleaded guilty to conspiracy to possess cocaine with intent to distribute in violation of
By the time the appellants entered their guilty pleas, all but one of their co-conspirators had pleaded guilty and been sentenced.
*986 The district judge decided to hold a joint evidentiary hearing for the appellants to address the disputed factual issues about quantity of cocaine and roles in the offense. Perdomo had chosen to cooperate with law enforcement, and he testified at the hearing as part of his plea deal. Perdomo testified about the events leading up to the June 17, 2015 transaction and arrests. He claimed that Campuzano-Benitez was aware of his attempts to negotiate the sale of more than one kilogram of cocaine. During cross-examination, Perdomo asserted he "was positive that we were going to sell five kilos of cocaine."
After the government concluded Perdomo's direct examination but before cross-examination began, Campuzano-Benitez's attorney asked for a short break to speak with her client. During this break, Perdomo asked if he could also speak with his attorney. The judge granted Perdomo's request over Soria-Ocampo's objection. The appellants' attorneys then cross-examined Perdomo, questioning his motives for testifying, his inconsistent statements of the events leading to the transaction, and the terms of his plea deal.
The district court later held separate sentencing hearings for each appellant. After referring to the presentence investigation reports, the plea declarations, and testimony from the evidentiary hearing, the court found that the government had proven by a preponderance of the evidence that both men were responsible for five kilograms of cocaine, determined that both had a base offense level of 30, and found that neither was eligible for a mitigating role adjustment under U.S.S.G. § 3B1.2. The court sentenced both men to 69 months in prison followed by three years of supervised release.
Both Soria-Ocampo and Campuzano-Benitez argue that the district court erred by (a) finding them accountable for five kilograms of cocaine instead of one, (b) denying them a mitigating role reduction under U.S.S.G. § 3B1.2, and (c) allowing Perdomo to consult with his attorney between direct and cross-examination during the evidentiary hearing.
II. Analysis
A. Attributable Drug Quantity
By finding that both appellants were responsible for arranging the sale of five kilograms of cocaine instead of one, the district court increased their sentencing guideline ranges from 37-46 months in prison to 70-87 months (after a downward adjustment of three levels for accepting responsibility). See U.S.S.G. § 2D1.1(c)(8), (5). Appellants argue that the district court erred in attributing five kilograms to them because they both accepted responsibility for only one kilogram in their plea agreements, Soria-Ocampo's presentence investigation report concluded he was unaware of any negotiations for a larger sale, and no reliable evidence supported a larger quantity.
We review the district court's sentencing guideline finding of the attributable drug quantity under § 2D1.1 for clear error.
United States v. Austin
,
In calculating the applicable range under the Sentencing Guidelines for
*987
a drug crime, "the government must prove by a preponderance of the evidence the quantity of drugs attributable to a defendant."
Austin
,
Next, the court must consider whether the conduct of the co-conspirators was both in furtherance of the agreed criminal activity and was reasonably foreseeable to the particular defendant. U.S.S.G. § 1B1.3(a)(B)(ii), (iii) ;
United States v. Hollins
,
The district court properly identified and applied this analysis to determine the quantity of cocaine attributable to the appellants. First, in a written opinion explaining its drug-quantity finding, the district court determined the "specific conduct and conspiratorial objectives embraced by both [appellants] consisted of serving as brokers for a single wholesale cocaine transaction between mid-level suppliers ... and representatives ... of purported wholesale buyers within the greater Chicago area."
United States v. Soria-Ocampo
,
Next, the district court did not err in determining that the attempted sale of five kilograms of cocaine was in furtherance of the appellants' joint criminal activity. Appellants did not dispute their roles as brokers of the transaction, so the court reasonably found that this attempted sale "constituted the desired result of the joint criminal activity at issue." Id. at *3.
Finally, the district court did not clearly err in concluding the agreement for five kilograms was reasonably foreseeable to the defendants. The court found that a deal for five kilograms of cocaine was "the *988 natural and intended consequence of their actions." Id. The evidence before the court included recorded conversations between Perdomo and the buyers negotiating a five- to ten-kilogram deal and testimony from Perdomo that the deal was for five kilograms of cocaine. On this evidence, the district court would not have been required to find the appellants were responsible for five kilograms, but we are not left with a definite and firm conviction that the court committed a mistake in its analysis. The district court reached a reasonable result on the basis of evidentiary conflicts and uncertainties that are common in drug conspiracy cases.
Appellants argue that the court erred by relying on Perdomo because he was not a credible witness. They highlight inconsistencies in his statements to detectives, his possible motives to lie, and the lack of corroborating evidence. Appellants believe it was clear error to give any weight to Perdomo's testimony regarding the final drug quantity and whether he communicated that amount to the appellants because these statements were "unsubstantiated and self-serving."
We have declined to presume a co-conspirator's testimony is unreliable. We have said many times that "a sentencing judge is free to credit testimony that is totally uncorroborated, comes from an admitted liar, convicted felon, ... large scale drug-dealing, paid government informant, or self-interested co-conspirator."
United States v. Isom
,
The district court did not give great weight to Perdomo's testimony anyway. The judge explained that he "didn't find him incredible ... [or] credible, either. It just didn't really matter as to the uncorroborated portions of his testimony." In light of Perdomo's possible motive to cooperate and his inconsistent statements, the judge explained that he "of course, considered [the] cooperator testimony with caution and great care."
Soria-Ocampo
,
Appellants also contend that "for there to be reasonable foreseeability on the part of a drug co-conspirator, there must be both, (1) a long tenure of conspiracy and (2) multiple transactions in the course of the conspiracy." They argue that
United States v. Gonzalez
,
In sum, the district court did not err when it attributed five kilograms of cocaine *989 to the appellants and used base offense level 30 for both.
B. Mitigating Role Adjustment
Appellants next argue that the district court erred in denying them a minimal or minor role adjustment because the judge did not consider each of the non-exhaustive factors listed under U.S.S.G. § 3B1.2 cmt. n.3(C). This issue involves a mixed question of law and fact, requiring us to "review a district court's interpretation of the sentencing guidelines de novo and its factual findings for clear error."
United States v. Orlando
,
The Guidelines provide for a downward adjustment of four offense levels for a person who played a minimal role in the joint criminal activity, or two levels if the person was a minor participant. U.S.S.G. § 3B1.2. The appellants remind us that playing a
necessary
role does not
definitively
prevent that same role from also being minor. See
Orlando
,
(i) the degree to which the defendant understood the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant's participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from the criminal activity.
U.S.S.G. 3B1.2 cmt. n.3(C). The court should weigh these factors to determine if the defendant seeking the reduction is "substantially less culpable than the average participant in the criminal activity." U.S.S.G. § 3B1.2, cmt. 3(A).
The district court did not state explicit findings on each of these enumerated factors, but that omission alone was not a reversible error. We do not require district courts to treat sentencing factors as a checklist or to spell out their analyses of each factor at each sentencing. See, e.g.,
United States v. Panaigua-Verdugo
,
Like the Ninth Circuit in Diaz , we have no trouble determining from this record that the district court was aware of the mitigating role factors. Appellants and the government argued this issue thoroughly before the court several times in their position papers and during their sentencing hearings. With this background, the court explained the facts before it, compared the appellants to other co-conspirators (including one who was granted a mitigating role adjustment), and found appellants were not substantially less culpable than the average participant. While a more explicit discussion of the factors would assist our analysis, the district court did not err by denying appellants mitigating role reductions. 3
C. Perdomo's Consultation with his Attorney
Finally, appellants argue that the district court erred by allowing Perdomo to consult with his attorney at the evidentiary hearing after the government's direct examination but before their attorneys began cross-examination. The parties dispute the standard of review on this issue. Appellants argue that allowing Perdomo to "regroup" with his attorney before cross-examination limited their ability to expose fully Perdomo's bias and thus violated their Sixth Amendment right to confrontation. Appellants contend this violation requires
de novo
review under the logic of
United States v. Hernandez
,
We have held that the Confrontation Clause in the Sixth Amendment does not apply at sentencing.
United States v. Ghiassi
,
The trial court has broad discretion to control the court during the cross-examination of a witness so that the court can implement the most effective procedures for determining the truth, avoid wasting time, and protect a witness if necessary. See Fed. R. Evid. 611(a). This discretion certainly includes deciding whether to allow a non-party witness to speak with his attorney between direct and cross-examination. See
Perry v. Leeke
,
It was squarely within the district court's discretion to allow Perdomo to confer briefly with his attorney after direct examination. We find no evidence in the record that the court abused that discretion. 4
The district court did not err in sentencing or abuse its discretion during the evidentiary hearing. The judgments of the district court are AFFIRMED.
In the July 18, 2017 evidentiary hearing, Perdomo explained that the conspirators used "cars" as a codeword for kilograms of cocaine because Perdomo worked at an auto body shop.
The government initially believed all ten kilograms found at the sellers' apartment were cocaine, but testing confirmed that four were actually heroin. The government contends that the two sellers mistakenly believed all ten kilograms were cocaine, and both sellers accepted responsibility for ten kilograms of cocaine even after the heroin was discovered. Appellants contend the government's position is "absurd" because the cocaine and heroin were wrapped in different ways and hidden in different sections of the closet. They further contend that the sellers would have received a higher sentence for possessing heroin, so their plea to ten kilograms of cocaine should be discredited as too self-serving. Because the base offense level for appellants is the same regardless of whether the transaction was for five or ten kilograms of cocaine, we do not resolve the dispute. See U.S.S.G.§ 2D1.1(c)(5).
Appellants ask us to consider remanding as the Ninth Circuit did in
United States v. Diaz,
Appellants argue that the Supreme Court decision in Perry v. Leeke demands that we find the court abused its discretion. In Perry , the district court refused to allow a defendant-witness to consult with his attorney in circumstances much like these. The Supreme Court reasoned that prohibiting a witness from consulting with his attorney in a fifteen-minute break between direct and cross-examination was appropriate because
the truth-seeking function of the trial can be impeded in ways other than unethical "coaching." Cross-examination often depends for its effectiveness on the ability of counsel to punch holes in a witness' testimony at just the right time, in just the right way. Permitting a witness, including a criminal defendant, to consult with counsel after direct examination but before cross-examination grants the witness an opportunity to regroup and regain a poise and sense of strategy that the unaided witness would not possess. This is true even if we assume no deceit on the part of the witness; it is simply an empirical predicate of our system of adversary rather than inquisitorial justice that cross-examination of a witness who is uncounseled between direct examination and cross-examination is more likely to lead to the discovery of truth than is cross-examination of a witness who is given time to pause and consult with his attorney.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Raphael CAMPUZANO-BENITEZ and Uriel Soria-Ocampo, Defendants-Appellants.
- Cited By
- 9 cases
- Status
- Published