Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 CR 739--Harry D. Leinenweber, Judge.
Before Cudahy, Ripple, and Rovner, Circuit Judges.
The opinion of the court was delivered by: Ripple, Circuit Judge
Carlos Gutierrez-Herrera ("Gutierrez") pleaded guilty pursuant to a written plea agreement to one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. secs. 846 and 841(a)(1). At sentencing the district court found that four kilograms of cocaine were attributable to Mr. Gutierrez and sentenced him to 57 months' imprisonment. Mr. Gutierrez appeals and argues that it was error to attribute to him more than two kilograms of cocaine. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
In his written plea agreement, Mr. Gutierrez stipulated to the following facts. In August 2000, he told co-defendant Marin Aguayo-Robles ("Marin") that he had two kilograms of cocaine to sell. Marin passed this information to co-defendant Jose Aguayo ("Jose"), who agreed to find a buyer. Jose did so and informed Marin, who contacted Mr. Gutierrez. Mr. Gutierrez agreed to sell the cocaine to Marin and Jose for $42,000. Marin told Jose that they could each make $2,000 on the deal if they resold the two kilograms of cocaine for $46,000. Jose contacted the buyer, who agreed to pay that amount. Marin subsequently made plans with Mr. Gutierrez and Jose for the cocaine to be delivered on August 8, 2000.
On August 8, Mr. Gutierrez delivered the cocaine to Marin and Jose; they agreed that Marin and Jose would pay him after they resold the cocaine later that day. When Jose met with the buyer, however, he was robbed of the cocaine. Between August 8 and August 28, Marin repeatedly told Jose that Mr. Gutierrez and those working with him would harm Jose's family unless Jose returned two kilograms of cocaine or $42,000 to Mr. Gutierrez.
On September 1, 2000, Marin again spoke to Jose who, unbeknownst to Marin and Mr. Gutierrez, had begun working for the FBI. During their conversation Marin blamed Jose for losing the cocaine. Jose then informed Marin that he would have $42,000 or two replacement kilograms of cocaine for Mr. Gutierrez by September 8. Jose asked Marin if Mr. Gutierrez and his associates would refrain from taking any retaliatory action against him or his family before he paid Mr. Gutierrez, and Marin agreed to speak to Mr. Gutierrez on his behalf.
On September 7, Jose met with Marin at his job to discuss their debt to Mr. Gutierrez, and Jose told Marin that he would have replacement cocaine to give to Mr. Gutierrez the next day. On September 8, Jose and Marin met at Jose's residence, and Jose gave Marin two kilograms of cocaine that had been supplied to Jose by the Government. The FBI and Cicero, Illinois, police conducted a traffic stop of Marin's car as he left Jose's house, and they arrested Marin and recovered the two kilograms of cocaine. Marin immediately began cooperating with the FBI, and agreed to deliver the cocaine to Mr. Gutierrez as planned. Later that day, Marin called Mr. Gutierrez and told him in coded language that he had cocaine for Mr. Gutierrez. This call was recorded by the FBI. Marin told Mr. Gutierrez that he was having car trouble, and Mr. Gutierrez agreed to leave a car at a Popeye's restaurant for Marin's use in bringing the cocaine to him.
Mr. Gutierrez drove a grey Buick Regal to the Popeye's, and he was followed by a green Mazda 626. Mr. Gutierrez parked the Regal next to Marin's car, then left the Regal and accompanied Marin to the trunk of Marin's car. Marin opened the trunk and showed Mr. Gutierrez two kilograms of cocaine inside a paper bag. With Mr. Gutierrez's agreement, Marin placed the bag of cocaine in the passenger compartment of the Regal. Mr. Gutierrez got into the Mazda and attempted to leave the parking lot, but was stopped and arrested by the police and the FBI.
B. District Court Proceedings
On October 4, 2000, Mr. Gutierrez, Marin and Jose were indicted. Count I of the indictment charged all three with conspiracy to distribute cocaine, in violation of 21 U.S.C. secs. 846 and 841(a)(1), and Count II charged them with possession with intent to distribute cocaine in violation of 21 U.S.C. sec. 841(a)(1) for the August 8 transaction. Count III of the indictment charged Mr. Gutierrez and Marin with possession with intent to distribute cocaine for the September 8 transaction. On May 25, 2001, Mr. Gutierrez pleaded guilty to Count I pursuant to a written plea agreement. At sentencing the district court found that four kilograms of cocaine should be attributed to him--the two kilograms he ...