instruction was wrong under Bailey does not mean that a new trial must be granted." United States v. Cotton, 101 F.3d 52, 55 (7th Cir. 1996). Although the instruction may be inconsistent with Bailey with respect to the "use" prong, the conviction may still be upheld under the "carry" prong.
To determine if the conviction can be maintained under the "carry" prong, the court must first check the indictment to see if the defendant was indicted for "carrying" the firearm during and in relation to the drug trafficking crime. See Cotton, 101 F.3d at 55. Here, Gonzalez was indicted under both of § 924(c)(1)'s prongs -- (1) use and (2) carry. Thus, the grand jury authorized the Government to prosecute Gonzalez for either (1) using or (2) carrying the firearm.
Next, the court must look at the evidence presented at trial. If the facts that the jury necessarily found to support the § 924(c)(1) conviction establish beyond a reasonable doubt that Gonzalez " carried " the firearm, the conviction stands. See Cotton, 101 F.3d at 56. Here, all of the evidence at trial established that Gonzalez "carried" the firearm, thus, whether Gonzalez "used" the weapon is irrelevant.
Upon Gonzalez' arrest immediately after attempting to purchase the drugs, a handgun was found on his person. See United States v. Gonzalez, 19 F.3d 1169, 1172 (7th Cir. 1994) (The surveillance agents "found a handgun ... on Gonzalez upon his arrest."). Indeed, at trial Gonzalez admitted that he "carried" the firearm, but suggested that he did so for protection.
See Transcript pgs. 413-14. Accordingly, Gonzalez' § 924(c)(1) conviction is not inconsistent with Bailey since all of the evidence established that he "carried" the firearm rather than "used" the firearm.
B. Lawful Possession of the Firearm
Next, Gonzalez argues that as a result of the Seventh Circuit's decision -- rendered after Gonzalez' appeal -- in United States v. Taylor, 31 F.3d 459 (7th Cir. 1994), he was entitled to a jury instruction that lawful possession of the firearm is a defense to a § 924(c)(1) charge.
The Court disagrees.
Simply stated, Gonzalez seriously misreads the Taylor decision. Not only does Taylor not stand for the proposition that legally possessing a firearm is a defense to a § 924(c)(1) charge, the court is not aware of any such case law. The issue is whether the firearm was used or carried "during and in relation to" a drug trafficking crime. 18 U.S.C. § 924(c)(1). Thus, it appears that Gonzalez' real argument is that the firearm was not used "in relation to" the drug trafficking crime.
That argument is also a loser.
The phrase "in relation to" is expansive. Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050, 2058, 124 L. Ed. 2d 138 (1993). At a minimum, "the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence cannot be the result of accident or coincidence." 113 S. Ct. at 2059. The gun "must facilitate or have the potential for facilitating the drug trafficking offense." Id. In the ordinary case, the gun facilitates the offense by providing a means of protection. See id.
Gonzalez argues that he carried the firearm for protection because he lived in a dangerous neighborhood. Thus, the fact that he carried it during the drug offense was merely coincidental since he frequently carried the firearm for protection. That may be Gonzalez' interpretation of the evidence, but not the one the jury had to believe.
Here, Gonzalez' firearm was fully loaded and concealed from others, immediately available to him and only him in the event of "trouble." Thus, certainly the jury could have inferred that the concealed firearm emboldened Gonzalez during the offense, i.e., he used it for security and protection. See Taylor, 31 F.3d at 466-67 ("The concealed possession of a loaded weapon could also serve to embolden its owner."). The jury was not required to believe Gonzalez' interpretation of the evidence that the firearm's presence during the offense was merely coincidental.
C. Buyer-Seller Instruction
Next, Gonzalez argues that counsel performed ineffectively for failing to offer a buyer-seller jury instruction consistent with the Seventh Circuit's en banc decision in United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993), regarding the drug conspiracy conviction.
The court disagrees.
Gonzalez was part of a "reverse role" narcotics investigation -- undercover agents pretended to sell drugs rather than buy them. Gonzalez, 19 F.3d at 1171. In April of 1992, an agent met with an informant and Gonzalez. Id. The three discussed Gonzalez buying cocaine from the agent. Id. Gonzalez told the agent that he had $ 100,000 available at a friend's house. Id. The deal was set.
At the exchange point, Gonzalez used a mobile phone and contacted an individual named "Pete." Id. Pete said that he would send someone with a truck and money to pick up the drugs. Id. Carreno arrived in a pickup truck with the money, followed by Hinojosa in a car. Id. Carreno, Gonzalez, and the agent debated where the transaction would take place. Id. They agreed on a location. The agent told his partner -- another agent -- to deliver the drugs to Hinojosa in a liquor store parking lot. Id. Gonzalez, Carreno, and the agent took the agent's car to another parking lot where Carreno showed the agent a bag of money. Id. The agent called his partner and told him to deliver the drugs. Id. Gonzalez, Carreno, and Hinojosa were arrested shortly thereafter. Id.
The buyer-seller instruction is essentially a defense to the conspiracy charge. See United States v. Turner, 93 F.3d 276, 285 (7th Cir. 1996). Gonzalez is arguing that he was not part of Carreno and Hinojosa's conspiracy to distribute the cocaine; rather, his only role in the ordeal was to bring the buyer (Carreno and Hinojosa) and the seller (the undercover agent) together, i.e., he acted as a broker. Thus, he should not have been indicted or convicted for conspiring to distribute the drugs. He claims, relying on the principle espoused in Lechuga, that his counsel performed ineffectively for failing to submit a jury instruction on his theory of defense.
Gonzalez is misreading Lechuga. " Lechuga held that mere evidence of one sale of narcotics, without more, was inadequate to support a conviction of the buyer and seller for conspiracy to distribute narcotics." United States v. Baskin-Bey, 45 F.3d 200, 205 (7th Cir. 1995) (emphasis added). This means that Gonzalez' attempted purchase (with Carreno and Hinojosa) from the undercover agent in and of itself cannot constitute a conspiracy between the undercover agent and Gonzalez, Carreno, and Hinojosa. See United States v. Garcia, 89 F.3d 362, 365 (7th Cir. 1996). In other words, because Gonzalez, Carreno, and Hinojosa "were on the same side of the transaction, Lechuga is completely inapplicable." Baskin-Bey, 45 F.3d at 205; accord, United States v. Herrera, 54 F.3d 348, 354 (7th Cir. 1995) ("In the present case, all of the Defendants are on one side of the cocaine deal -- the buying side. *** Therefore, because the Defendants were on the same side of the relevant transaction, Lechuga is inapplicable."). Accordingly, Gonzalez' argument based on the principle espoused in Lechuga is without merit.
Gonzalez may be arguing that he was part of a conspiracy to purchase the drugs, but he was not part of Carreno and Hinojosa's conspiracy to distribute them. If so, the jury instructions adequately covered that issue. The jury was instructed on the law of conspiracy and they were instructed -- to convict under count II -- that they had to find that Gonzalez possessed "cocaine with the intent to distribute it." Government Instruction # 26. Thus, the jury found that Gonzalez intended to distribute the drugs.
Next Gonzalez argues that counsel was ineffective for failing to argue that the two-level enhancement, pursuant to U.S.S.G. § 3B1.1(c), for being a leader, organizer, manager, or supervisor was not supported by the facts. The court has a couple of problems with Gonzalez' position.
First, assuming Gonzalez is correct and the facts did not support a § 3B1.1(c) enhancement and his sentencing and appellate counsel were ineffective for failing to raise the issue, it appears that the issue is not cognizable in a § 2255 motion in the Seventh Circuit. Beginning with Scott v. United States, 997 F.2d 340 (7th Cir. 1993), the Seventh Circuit began to question whether any errors under the sentencing guidelines were cognizable in a § 2255 motion. Although not answering the question in Scott, the court noted that only "extraordinary circumstances" even call for an inquiry into the issue. Id. at 343.
In Durrive v. United States, 4 F.3d 548 (7th Cir. 1993), the circuit court elaborated further. The court held that to be cognizable in a § 2255 motion a person complaining about his sentence must demonstrate that counsel's deficient performance led to a "significant" increase in the sentence. Id. at 551. Of course, the next question is what is a "significant" increase in one's sentence?
But first, let's review Gonzalez' situation. Gonzalez had a criminal history of I and an offense level of 34, resulting in a guideline imprisonment range of 151 to 188 months of imprisonment. He is complaining about a two-level increase. Assuming that he is correct and the two points should not have been added to his total offense level, he would have an offense level of 32, producing a guideline imprisonment range of 121 to 151 months of imprisonment. He was sentenced to 151 months of imprisonment -- the low end of the applicable 151 to 188 month range. Assuming that he would have been sentenced at the low end of the "new" range, his sentence would be 121 months of imprisonment. Thus, assuming that his counsel performed deficiently, he was sentenced to an extra 30 months of imprisonment. Is an extra 30 months in prison a "significant" increase in one's sentence?
In Durrive the court held that 12 months was not "significant" and suggested that 22 months would not be "significant." See Durrive, 4 F.3d at 551 ("But the difference between 120 months and 108 or even 98 ... is not ... a 'significant' difference."). In Martin v. United States, 109 F.3d 1177 (7th Cir. 1996), the court held that 16 months was not "significant." But what about 30 months?
There is a critical aspect of Durrive and Martin that the court has yet to discuss and appears dispositive of Gonzalez' argument. Up to now, the court discussed "significant" increases to one's sentence with respect to the increase in the number of months of incarceration as a result of the alleged error. Although increased months in prison is the practical effect of the errors, that's not really what the cases held. Indeed, they analyzed whether the difference between sentences qualified as "significant" with respect to the increase in offense levels, not months, that the alleged error produced. Both cases found that "the sort of increase produced by a few levels' difference in sentencing calculations" does not lead to a "significant" increase in one's sentence. See Martin, 109 F.3d at 1178 (discussing Durrive).
As noted, Gonzalez -- just like Durrive and Martin -- complains about a two-level difference, i.e., a "few levels' difference." Such an argument is barred from review by way of a § 2255 motion pursuant to the holdings in Durrive and Martin. Accordingly, assuming Gonzalez is correct and his counsels' deficient performance resulted in an increase in his sentence, § 2255 provides no avenue for relief.
Even if Gonzalez could get around the holdings in Durrive and Martin, however, the court would still find that his position is without merit. As Gonzalez acknowledges, the "primary concern of § 3B1.1 is the imposition of a punishment commensurate with the defendant's relative responsibility within a criminal organization." United States v. Johnson-Dix, 54 F.3d 1295, 1309 (7th Cir. 1995). When analyzing a defendant's relative responsibility, the Seventh Circuit has placed "particular emphasis on whether the defendant exercised control over other participants in criminal activity." Id. But, if the defendant "coordinated and organized the criminal activity even if he did not necessarily control another participant," the § 3B1.1(c) enhancement is appropriate. Id.
Here, Gonzalez was clearly more culpable than his co-conspirators Carreno and Hinojosa. Indeed, Gonzalez organized the deal. Gonzalez established the meeting point with the undercover agent. See Gonzalez, 19 F.3d at 1171. When they first met, Gonzalez expressed concern that police officers were present, so he suggested another place to conduct the transaction. Id. He telephoned "Pete" and they agreed that someone would bring a truck and give the truck key to Gonzalez. Id. Carreno and Hinojosa then showed up to conduct the transaction. Id. Gonzalez orchestrated the entire deal; thus, the enhancement was appropriate.
E. The Confidential Informant
A confidential informant notified the undercover agent about Gonzalez. The confidential informant did not testify at trial. Gonzalez believes the testimony of the confidential informant may be relevant to the defense of entrapment that he raised at trial and to the fact that he did not enter the conspiracy to distribute the drugs with Carreno and Hinojosa. He argues that counsel was ineffective for failing to subpoena the informant.
However, "evidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit." United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991). "A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim." Id. Here, Gonzalez' argument that the informant's testimony would have benefitted his case is nothing more than speculation.
Petitioner John Gonzalez' motion under 28 U.S.C. § 2255 to vacate, set aside or correct the sentence is DENIED.
Date: JUN 11 1997
JAMES H. ALESIA
United States District Judge