Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 87 CR 20012 -- Stanley J. Roszkowski, Judge.
Wood, Posner and Coffey, Circuit Judges.
Defendants Juan Montoya, Augustine Gomez and Augustine Ramirez were convicted of conspiracy to possess with intent to distribute and to distribute cocaine and 1,000 kilograms or more of marijuana in violation of 21 U.S.C. § 846. Montoya was also convicted of distributing approximately 12.36 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Gomez and Ramirez appeal their convictions and sentences on the conspiracy charge. Montoya appeals his sentence for conspiracy and distribution of cocaine. We remand Ramirez's case to the district court for resentencing. In all other respects, we affirm.
Montoya, Gomez and Ramirez were convicted in the United States District Court for the Northern District of Illinois for their involvement with an international drug trafficking conspiracy operating in Rockford, Illinois. Beginning in 1982, this operation, through the use of automobiles, vans and trucks with hidden storage compartments, as well as airplanes, imported large quantities of cocaine and marijuana from Mexico into the United States. Most of the narcotics were smuggled across the Mexico-Texas border and subsequently transported for distribution in the Rockford, Illinois, area. The organization employed a large number of persons to import, transport, store and sell narcotics. The conspiracy also employed individuals to transport and distribute the profits derived from illicit drug sales among the various co-conspirators, most of whom resided in Rockford. In mid-1986 confidential informants, working with Rockford law enforcement officers and the United States Drug Enforcement Administration ("DEA"), infiltrated the drug ring and provided the law enforcement officials with the identities of the key figures in the drug network, as well as their respective drug-related activities. Additionally, the informants purchased drugs from and tape recorded a number of conversations with various members in the drug conspiracy. Based largely on this evidence and other information, a grand jury indicted twenty-one individuals, including the three defendants involved in this appeal, and charged them with a number of violations of the federal narcotics laws. At this point, the cases of the defendants diverge, necessitating for the sake of clarity that we consider separately the relevant facts and issues as they relate to each of the individual defendants.
Defendant Montoya was arrested in his home in Rockford on July 19, 1987, and was charged with one count of conspiracy to possess with intent to distribute and to distribute cocaine and 1,000 kilograms or more of marijuana in violation of 21 U.S.C. § 846 (Count One). Montoya was also charged with one count of distributing approximately 12.36 grams of cocaine (Count Nine), one count of possession with intent to distribute approximately 893.65 grams of marijuana (Count Thirteen), and one count of possession with intent to distribute approximately 615.11 grams of cocaine (Count Fourteen), all in violation of 21 U.S.C. § 841(a)(1). On June 22, 1987, Montoya, appearing with counsel, entered a plea of not guilty. Pursuant to a plea agreement, Montoya subsequently withdrew his original not guilty plea and entered a plea of guilty to Counts One and Nine of the indictment on December 23, 1987; the government, in turn, agreed to and did dismiss the charges against Montoya contained in Counts Thirteen and Fourteen. After a hearing, the court determined that Montoya's decision to plead guilty was made freely, voluntarily and with full knowledge of the rights he was relinquishing and accepted Montoya's plea of guilty. Thereafter, the court ordered the preparation of a presentence report and set sentencing for February 25, 1988.
The presentence report contained both the defendant's and the government's statements detailing Montoya's involvement in the conspiracy. According to Montoya, he had been selling marijuana since 1985 and cocaine since 1987. At the time of his arrest, Montoya admitted to selling approximately twenty pounds of marijuana a month, profiting between $50 and $100 per pound. Montoya also admitted to selling approximately one ounce of cocaine a month and earning between $600 and $800 per ounce. Montoya stated that he had never possessed more than 200 pounds of marijuana, nor more than one Kilogram of cocaine at any one time.
The government, in its version of Montoya's drug-related activities, stated that Montoya was "heavily involved in the distribution of marijuana and cocaine." The government based its conclusion largely on Montoya's conversations with a government informant. Specifically, on August 29, 1986, the government informant met with Montoya in his home and Montoya presented her with a one-pound package of marijuana, stating that it was part of a 2,000-pound load from Mexico which he had sold for between $750 and $900 per pound. Montoya also stated that he was selling both marijuana and cocaine and that he was working with Tomas Perez*fn1 and an individual named Tony.*fn2
In a recorded conversation on January 20, 1987, Montoya and his wife, Donna,*fn3 told the informant that they were willing to sell her cocaine, stating that they would teach her how to cut and package the cocaine so she could resell it at a profit. The following day, January 21, in another recorded conversation, Montoya told the informant that he purchased approximately one kilogram of cocaine a month, stating that he sold each kilogram at a profit of $24,000 and that he could "see" $110,000 in one night.*fn4 Montoya again encouraged the informant to start her own cocaine business and explained how to cut the drug for resale. Montoya also stated that he had 2,000 pounds of marijuana available and that, at one time, he received a profit in the amount of $18,000 on the sale of twenty pounds. Later in the conversation, Montoya admitted that at one time, one of his marijuana shipments had been confiscated by the authorities. On January 22, 1987, Montoya sold the informant approximately 12.36 grams of cocaine for $900.
Finally, in a recorded conversation on June 16, 1987, Montoya told the informant that he was still in the "business" and that he would sell her an ounce of cocaine at a reduced price ($1,500 as opposed to $1,900) in order that she might make a profit on the resale. When he was arrested on June 19, 1987, Montoya was in possession of 615 grams of cocaine, 894 grams of marijuana, a .22 caliber weapon, $869 worth of food stamps, and a public aid card. The government posited that Montoya was selling narcotics in exchange for the food stamps and using the public aid card to receive welfare benefits to which he was not entitled because of his income from illicit drug sales.
Referring to the government's version of the facts, the probation officer who prepared the presentence report stated that, in his opinion, Montoya was one of the more culpable participants in this conspiracy. The officer also stated:
"It is uncertain as to whether or not the defendant was working for [Tomas Perez, Antonio Franco, and Raul Ramirez*fn5], but it is possible that he obtained drugs from them. The defendant was extensively involved in the sale of marijuana and cocaine, and allowed his wife to also become involved in a peripheral role. In further aggravation, is the fact that this defendant also attempted to recruit at least one individual to also become a seller of narcotics."
The probation officer also concluded that Montoya had not shown a great deal of remorse for his involvement in the conspiracy; rather, he attempted to justify his illicit drug activities based on his inability to secure legitimate employment.
At the sentencing hearing held on February 25, 1988, Montoya challenged numerous facts described by the government in the presentence report. Specifically, he alleged that: (1) he never had a conversation with the informant on August 29, 1986; (2) during the January 21, 1987, conversation he stated that he could "owe" $110,000 in one night, as opposed to the government's statement that he could "see" that amount;*fn6 (3) regarding the 20-pound marijuana sale, also discussed in the January 21 conversation, he told the informant he made $2,000 on the sale rather than $18,000; (4) he told the informant that others had had marijuana shipments confiscated, but that this had never happened to him; (5) his statement during the June 16, 1987, conversation that he was still in the "business" was a reference to the grocery store he owned and had nothing to do with his drug-related activities; (6) he was in possession of 588, as opposed to 615 grams of cocaine at the time of his arrest; (7) he was justified in his possession of both the food stamps and the public aid card, explaining that the food stamps were from his grocery store and that the public aid card was for his infant son's medical expenses; (8) he had never recruited the informant to sell narcotics; and (9) he had never purchased narcotics from Perez, Franco or Raul Ramirez. Montoya also objected to the probation officer's conclusion that he was one of the more culpable participants in the conspiracy, arguing that this conclusion was apparently based on disputed information in the government's version of the facts, as well as the probation officer's opinion that he had not shown any remorse for his actions.
After listening to the arguments presented at sentencing, including Montoya's disagreement with the government's evidence, the district court sentenced Montoya to 15 years' imprisonment on Count One and a consecutive sentence of 3 years on Count Nine with a three-year period of supervised release to follow. In passing sentence, the trial judge stated that it was clear to him that Montoya was heavily involved in the distribution of cocaine and marijuana. The judge also noted that Montoya had involved his wife in his illicit activities. Further, the court agreed with the conclusion that Montoya expressed no remorse for his involvement in the conspiracy, noting the defendant's refusal to cooperate with the government in identifying the suppliers and purchasers with whom he engaged in narcotics transactions. Our review of the sentencing transcript reveals that the trial court made no findings concerning the evidence Montoya challenged at the sentencing hearing, nor did the United States Attorney or defense counsel request that the court make further findings concerning the disputed evidence. Thus, Montoya's challenges to the content of his conversations with the informant, as well as his explanations concerning the narcotics, food stamps and public aid card confiscated at the time of his arrest, were not resolved at the time of sentencing. Three weeks after the sentencing hearing, on March 21, 1988, the district court filed a written determination pursuant to Fed.R.Crim.P. 32(c)(3)(D),*fn7 stating that at sentencing Montoya had challenged numerous facts contained in the presentence report and that none of the disputed matters were relied upon in passing sentence on the defendant.
Montoya now appeals his sentence, arguing that he is entitled to be resentenced because the trial court violated Rule 32(c)(3)(D) in failing to determine at the time of sentencing that none of the facts disputed by the defendant at the sentencing hearing had been considered in formulating Montoya's term of incarceration. Montoya also argues that he was sentenced in violation of his due process rights because the sentence imposed by the court was based on inaccurate information.
When a defendant alleges inaccuracies in his presentence report, Fed.R.Crim.P. 32(c)(3)(D) requires that the sentencing judge make findings as to the allegations or a determination that the disputed matters will not be relied upon in passing sentence prior to or contemporaneous with sentencing.*fn8 The rule also requires that the court attach a record of its findings or determination to the pre-sentence report. This rule serves to protect "a defendant's due process right to fair sentencing procedures, particularly the right to be sentenced based on accurate information." United States v. Eschweiler, 782 F.2d 1385, 1387 (7th Cir. 1986). Another purpose of this rule is to provide a clear record of the disposition and resolution of controverted facts in the presentence report. United States v. Perez, 858 F.2d 1272, 1276 (7th Cir. 1988).
"In order to be resentenced under Rule 32(c)(3)(D), the defendant must show that: '(1) the allegations of inaccuracy were before the sentencing court and (2) the court failed to make findings regarding the controverted matters or a determination that the disputed information would not be used in sentencing.'" Id. at 1276-77 (quoting Eschweiler, 782 F.2d at 1389). Montoya concedes that the district court made a written determination that none of the disputed matters had been considered in sentencing, but argues that under Rule 32(c)(3)(D) the court was required to make this determination prior to or at the time of imposing sentence. Due to the court's failure to make this determination until three weeks after the sentencing hearing, the defendant contends that we are required to remand his case to the district court for resentencing.
The resolution of this issue is not as simple as the defendant would have us believe. Although "Rule 32 contemplates that if an assertion will not be relied on, a finding to that effect will be made before or contemporaneously with the sentencing," the failure to do so is subject to harmless error analysis. Kramer v. United States, 798 F.2d 192, 195 (7th Cir. 1986). In Eschweiler, this court stated that a trial court's failure to strictly comply with the dictates of Rule 32(c)(3)(D) warrants resentencing only when such would further the purposes underlying the rule. 782 F.2d at 1390. The government contends that despite the district court's failure to make the Rule 32(c)(3)(D) determination in a timely fashion, the purposes of the rule have nevertheless been served in this case, and thus, Montoya is not entitled to a resentencing hearing. Upon review of the sentencing transcript, we agree.
As noted above, one of the purposes of Rule 32(c)(3)(D) is to protect a defendant's due process right to fair sentencing. This right encompasses the right to be sentenced on the basis of accurate information. United States v. Tucker, 404 U.S. 443, 447, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972). Montoya argues that the trial court's untimely nonreliance determination fails to satisfy this purpose of Rule 32(c)(3)(D). According to him, it is obvious that the district court did, in fact, consider the challenged, allegedly unreliable information, contrary to the court's explicit statement that it did not, because without considering the challenged information, the court could not have concluded that the defendant was heavily involved in the distribution of cocaine and marijuana. Although the trial court did not refer to specific evidence in reaching this conclusion, Montoya has failed to demonstrate that the court's conclusion was based on the evidence Montoya disputed at trial. As an initial matter, we are of the opinion that Montoya's admissions and the court's conclusion is most certainly supportable based solely on the unchallenged evidence presented at sentencing. The defendant admitted that he had been engaged in selling marijuana for two years prior to his arrest in June 1987, and, furthermore, that he had access to approximately 2,000 pounds of the drug. He also stated that in the past he had possessed up to 200 pounds of the drug at various times, and furthermore, that he had in fact sold 20 pounds for $2,000. Montoya also admitted that he began selling cocaine in 1987, possessing up to one kilogram a month and earning a profit in the amount of $24,000 on each kilogram he sold. Further, Montoya conceded that he had 588 grams of cocaine and 894 grams of marijuana in his possession at the time of his arrest. Based on this evidence alone, we are of the opinion that the trial judge was justified in concluding that Montoya was heavily involved in the distribution of narcotics.
More importantly, we find no evidence in the record to support Montoya's contention that the district court considered any of the information Montoya challenged at sentencing. Interestingly enough, the defendant refers to only one statement of the court regarding the challenged information--namely, the court's statement that Montoya had shown no remorse for his crimes. The trial judge did, in fact, state that he agreed with the opinion of Montoya's presentence investigation probation officer that Montoya had shown little remorse for his crimes, specifically referring to Montoya's lack of cooperation in the government's continuing investigation of the narcotics conspiracy involved in this case. However, this statement is sufficiently specific to constitute a factual finding under Rule 32(c)(3)(D). Although the court stated that it had not relied on any of the disputed facts in sentencing Montoya, the only disputed matter that the court referred to at the sentencing hearing was clearly resolved on the record. Thus, other than the question of Montoya's lack of remorse, which was resolved at the time of sentencing, we conclude that the trial judge's remarks at sentencing are consistent with his determination that he had not relied on any of the disputed matters in passing sentence on Montoya.*fn9 "Of course it is possible that the judge's memory was playing tricks on him, that in fact when he sentenced [the defendant] he was under the influence of information in the presentence report that he didn't bother to mention, and that . . . he forgot about his unrecorded mental processes." Johnson v. United States, 805 F.2d 1284, 1289 (7th Cir. 1986). However, this mere possibility delving into the vast and uncharted valley of speculation, standing alone, is insufficient to establish that the sentencing court relied on the information disputed in this case.
Thus, we reject Montoya's challenge to the district court's nonreliance determination, but emphasize, as we have done in the past, "that our acceptance of such ex post facto determinations of nonreliance is at best reluctant--justified in this case only by our firm belief that the sentencing transcript accurately reflects [the district court's] reasons for imposing the sentence [it] did." Blake v. United States, 841 F.2d 203, 207 n.3 (7th Cir. 1988) (emphasis in original).
We also conclude that the second purpose of Rule 32--namely, appending the presentence report with a record of the disposition and resolution of the challenged facts--has been satisfied. This purpose is aimed at "providing the Bureau of Prisons . . . with a complete record to use in [its] decision-making process." United States v. Moran, 845 F.2d 135, 139 (7th Cir. 1988). Although the court initially failed to attach a record detailing the resolution of the disputed matters to the presentence report, a, copy of the sentencing transcript, as well as the court's non-reliance determination,*fn10 has since been appended to the presentence report and filed in the record on appeal. This is sufficient to satisfy Rule 32's purpose of creating a record detailing the information relied upon by the sentencing court. See Perez, 858 F.2d at 1277.
Based upon our review of the record, we are convinced that the purposes of Rule 32(c)(3)(D) have been served. Thus, we hold that the court's failure to make a timely determination that none of the disputed matters would be considered in determining Montoya's sentence was harmless error.
Defendant Gomez was arrested in his Los Angeles, California, home on June 19, 1987, and was charged in Count One with conspiring to possess with intent to distribute and to distribute cocaine and 1,000 kilograms or more of marijuana in violation of 21 U.S.C. § 846. After arresting Gomez, DEA agents searched his house, finding no narcotics but discovering an address book containing the names "Tomas Perez" and "Agustine [sic] Ramirez."*fn11 Gomez was charged with conspiracy and entered a plea of not guilty on June 24, 1987, and thereafter, on December 10, 1987, reiterated his not guilty plea in response to an identical charge contained in a superseding indictment.
A jury trial commenced on January 11, 1988, in which the government presented evidence establishing that during the course of the charged conspiracy, the defendant had numerous contacts with convicted co-conspirator Tomas Perez. Perez testified that he had known Gomez since 1979, and that they had discussed the sale of cocaine over the telephone. Despite these conversations, Perez denied that Gomez had provided him with cocaine. The government countered Perez's denial with transcripts of recorded telephone ...