Appeal from the United States District Court for the Western District of Wisconsin.
No. 94 CR 42--John C. Shabaz, Judge.
Before COFFEY, MANION, and KANNE, Circuit Judges.
This is a consolidated direct appeal of three defendants, all of whom pleaded guilty to a marijuana conspiracy. Jorge Salinas was sentenced to a 55-month term of imprisonment; Benito Salinas was sentenced to a 74-month term; and Rudolpho Medrano was sentenced to a 72-month term. The defendants challenge their sentences on a variety of grounds.
In February 1992, Steve Martin, a distributor of marijuana in Stevens Point, Wisconsin, began purchasing marijuana from Ray Sanchez. Martin learned that the Salinas brothers, Juan, Benito, and Jorge, were responsible for delivering the marijuana from Mexico to Wisconsin. Martin's home eventually became an off-loading point for the marijuana.
In April 1992, Juan Salinas solicited Carol Ayers to drive 30 pounds of marijuana from Texas to the home of Ray Sanchez in Bancroft, Wisconsin, where Sanchez and Juan Salinas unloaded the marijuana. Ayers received $3,000 for her services.
The next month, Ayers transported 20 pounds of marijuana from Texas to Wisconsin for a fee of $100 per pound of marijuana rather than a flat fee. This rate became the established rate of pay for subsequent conveyances. Ayers began travelling to Texas regularly to transport marijuana. She later reported to the police that between April 1992 and March 1993 she made at least thirteen round trips from Texas to Wisconsin, transporting a total of approximately 700 pounds of marijuana. She also reported that Jorge became involved in the conspiracy in approximately May 1992; Benito in September 1992; and Rudolpho Medrano in November 1992.
On April 10 or 11, 1993, Juan Salinas, Benito Salinas, Leticia Ortiz, and Arnoldo Aguirre checked into two rooms at the Comfort Suites motel in Stevens Point, Wisconsin under fictitious names. They received numerous visitors and made long distance calls, drawing the attention of motel personnel. The Stevens Point Police Department was contacted but by the time they arrived at the Comfort Suites motel the two rooms had been vacated. With the permission of the motel management, the police searched the rooms and seized slips of paper with columns labeled "owed" and "paid" and a small amount of marijuana. Records from the telephone company revealed several long-distance calls placed to suspected and known drug dealers in the Portage County, Wisconsin area.
The Stevens Point Police Department maintained a surveillance of the four individuals as they rented rooms at the Best Western Royale Hotel on April 12, 1993. The manager of the hotel was shown pictures from booking sheets and identified Leticia Ortiz, Arnoldo Aguirre, Juan Salinas, and Benito Salinas. The manager agreed to save the garbage from their rooms and turn it over to the police. The garbage consisted of notes containing names of known drug dealers and dollar amounts owed and received along with telephone numbers and amounts of marijuana delivered. Telephone records from the rooms revealed that several calls were made to Steve Martin and Ray Sanchez, both of whom were known by the police to be drug dealers.
On April 15, 1993, a state court judge issued search warrants for the Best Western rooms, leading to the discovery of over $8,000 in cash. Juan Salinas, Benito Salinas, Leticia Ortiz, and Arnoldo Aguirre were subsequently arrested. Found on Aguirre's person was $274.72 in cash, Florida business cards, and a copy of a Western Union money transfer receipt reflecting that Aguirre had sent $500 to Medrano from Stevens Point, Wisconsin, on April 8, 1993. Found on Benito Salinas' person were two envelopes containing a total of $828 in cash.
In late April 1993, Ayers contacted Medrano and made arrangements to transport marijuana from Texas to Florida. Ayers arrived in Texas on April 29, 1993, and turned her vehicle over to Medrano. Medrano loaded the vehicle with marijuana and returned it to Ayers. Medrano instructed Ayers to drive to Lakeland, Florida, and contact "Eloy." Ayers arrived in Florida around May 7, 1993, and contacted Eloy, who unloaded the marijuana from her vehicle. Two days later, on May 9, 1993, Medrano met Ayers in Florida and paid her $10,000 for transporting the marijuana.
In June 1993, Ayers contacted law enforcement officers in Wisconsin and offered to cooperate in their investigation of the marijuana distribution network in Stevens Point. Ayers provided a summary of the number of times, the quantity, and the approximate dates when she delivered marijuana from Texas to Wisconsin for Juan Salinas and the other persons involved in the network. According to Ayers, Jorge Salinas joined the conspiracy in May 1992, while Benito Salinas joined in September 1992. Western Union money transfer records corroborated Ayers' statements about the timing of the Salinas brothers' involvement in the marijuana conspiracy.
In July 1993, Ayers received from Medrano and his girlfriend Martha Salinas *fn1 correspondence stating that they were "ready to go" and had "a lot of Mexican goods for [her] to sell." As part of her agreement with law enforcement, Ayers recorded telephone conversations between herself, Medrano, and Martha Salinas, who served as an interpreter for Medrano due to his poor English. Martha Salinas informed Ayers that she and Medrano wanted Ayers to make another trip and would send her money via a Western Union wire transfer to purchase a one-way airplane ticket from Missouri to Texas. In Texas, Ayers was instructed to drive a vehicle loaded with 40 pounds of marijuana back to Minnesota. On November 21, 1993, the trip was thwarted when the vehicle was searched and approximately forty pounds of marijuana were seized, resulting in Medrano's arrest. Jorge Salinas was arrested several months later when his car was stopped at a drug check point in Missouri and 50 pounds of marijuana were seized from the trunk of the car.
On May 11, 1994, a federal grand jury returned a two-count indictment against six defendants: Rudolpho Medrano, Juan Salinas, Benito Salinas, Jorge Salinas, Arnoldo Aguirre, and Martha Salinas. The first count of the indictment charged that Rudolpho Medrano, Juan Salinas, Benito Salinas, Jorge Salinas, Arnoldo Aguirre, and Martha Salinas knowingly and intentionally conspired to possess with the intent to distribute and to distribute marijuana *fn2 in violation of 21 U.S.C. secs. 841(a)(1) and 846. Count Two of the indictment charged that during the same time period all of the defendants, with the exception of Martha Salinas, conspired to use a communication facility, namely Western Union Wire Transfer, to facilitate the marijuana conspiracy in violation of 21 U.S.C. sec. 843.
On November 10, 1994, Jorge Salinas, Benito Salinas, and Rudolpho Medrano pleaded guilty to Count One of the indictment. Count Two of the indictment was dismissed against each defendant pursuant to their respective plea bargains. The case was set for sentencing on January 12, 1995. At the sentencing hearing, *fn3 the district court imposed the following terms of imprisonment: 55 months for Jorge Salinas; 72 months for Rudolpho Medrano; and 74 months for Benito Salinas. *fn4 This appeal followed.
Benito Salinas challenges the sufficiency of the factual determinations made by the district court in regard to the amount of marijuana reasonably foreseeable to him for sentencing purposes. The amount of drugs attributable to a conspirator is a factual determination which this court reviews for clear error. United States v. Paters, 16 F.3d 188, 191 (7th Cir. 1994). A defendant has the due process right to be sentenced on the basis of accurate information. United States v. Mustread, 42 F.3d 1097, 1101 (7th Cir. 1994). Each member of a conspiracy is accountable for the amount of drugs with which he was directly involved, and for amounts involved in transactions that were reasonably foreseeable. U.S.S.G. sec. 1B1.3(a)(1)(B); United States v. Garrett, 45 F.3d 1135, 1141 (7th Cir. 1995). The district court determines the quantity of drugs attributable to a defendant by a preponderance of the evidence, which we have found satisfies due process. United States v. Ewers, 54 F.3d 419 (7th Cir. 1995); United States v. Johnson, 32 F.3d 265, 268 n.1 (7th Cir. 1994); United States v. Trujillo, 959 F.2d 1377, 1381 (7th Cir. 1992). If the facts contained in the presentence report (PSR) bear sufficient indicia of reliability to support their probable accuracy, the court may take them into account in passing sentence. United States v. Stephenson, 53 F.3d 836 (7th Cir. 1995).
Benito Salinas generally complains that the district court offered nothing beyond a "boilerplate explanation." This argument has been waived, since it was not raised at the sentencing hearing. United States v. Zarnes, 33 F.3d 1454, 1475 (7th Cir. 1994). Notwithstanding that waiver, the district court is permitted to adopt findings of fact and calculations found within the PSR as support for its findings and conclusions. United States v. Kaufmann, 985 F.2d 884, 899 (7th Cir. 1993). Moreover, the district court's findings regarding the "part of this conspiracy into which Benito Salinas entered into," the amounts ...