Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 784-Samuel Der-Yeghiayan, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before BAUER, RIPPLE, and WILLIAMS, Circuit Judges.
Felipe Padilla pleaded guilty to one count of knowingly distributing 121.3 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1). After finding that the substance in question was cocaine base in the form of crack, the district court sentenced Padilla to 327 months' imprisonment, a sentence above the advisory guidelines sentence of 240 months. Padilla now appeals his sentence, arguing that (1) the district court improperly found the narcotics to be crack; and (2) his sentence was unreasonable. We affirm the district court's finding on the drug type, but vacate and remand for resentencing in light of the recent Supreme Court decision in Kimbrough v. United States, 552 U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).
In the fall of 2002, Bureau of Alcohol, Tobacco and Firearms ("ATF") Special Agent David Gomez was on assignment monitoring weapons and drug transactions among Chicago gangs. On September 26, 2002, acting in an undercover capacity, he participated in a drug deal with Padilla, a cooperating individual ("CI"), and Adalberto Santiago in the parking lot of a K-Mart on Chicago's west side. Santiago and Padilla were charged with conspiracy to possess with intent to distribute cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 (Count I), and knowingly distributing approximately 121.3 grams of mixtures containing cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count II).
On April 18, 2005, Padilla filed a motion asking for an evidentiary hearing to determine the nature of the controlled substance. The district court denied the motion, finding that such a hearing was unnecessary in light of the fact that the "[i]ndictment in this case clearly inform[ed Padilla] that the controlled substance that [he was] charged with involves 'approximately 121.3 grams of mixtures containing cocaine base in the form of "crack," a Schedule II Narcotic Drug Controlled Substance.' " The court gave Padilla until June 1, 2005 to file an additional motion seeking the appointment of an independent expert to test the drugs. Padilla filed no such motion. On January 4, 2006, the government informed Padilla that the Cook County Sheriff's Police Department Laboratory had inadvertently destroyed the narcotics related to Padilla's case.
Padilla pleaded guilty in a blind plea to Count II of the indictment on March 29, 2006. At the change of plea hearing, Padilla admitted that he distributed 121.3 grams of cocaine, but specifically did not admit that the substance was cocaine base in the form of crack cocaine. At the sentencing hearing on December 7, 2006, the government introduced evidence through Agent Gomez concerning the drug transaction on September 26, 2002. The district court, finding that the drugs were cocaine base in the form of crack, and that an upward departure from the sentencing guidelines range was warranted, sentenced Padilla to 327 months' imprisonment and ten years' supervised release.
On appeal, Padilla argues that (1) the government failed to establish by a preponderance of the evidence that the controlled substance was crack cocaine for sentencing purposes; and (2) based on the advisory guideline range, a sentence of 327 months was unreasonable. We address each issue in turn.
A. The District Court's Drug Type Finding
Padilla challenges whether the government met its burden of proof that the substance involved in the deal was cocaine base in the form of crack for sentencing purposes. At sentencing after a guilty plea, the government has the burden of proving drug type by a preponderance of the evidence. United States v. Johnson, 200 F.3d 529, 537 (7th Cir. 2000). We review the district court's finding of drug type for clear error, and will reverse only if we are left with the definite and firm conviction that a mistake was made. See United States v. Wilson, 437 F.3d 616, 621 (7th Cir. 2006).
As we have held, "[a]ll crack is cocaine base but not all cocaine base is crack." United States v. Edwards, 397 F.3d 570, 571 (7th Cir. 2005). The term "cocaine base," for purposes of 21 U.S.C. § 841(b), borrows from the definition contained in U.S.S.G. § 2D1.1, which defines "cocaine base" as "crack." U.S.S.G. § 2D1.1(c), Note D; see United States v. Morris, 498 F.3d 634, 644 (7th Cir. 2007) (citing Edwards, 397 F.3d at 573-76). As we noted in Morris, "[t]his definition distinguishes between both powder cocaine (cocaine hydrochloride) and cocaine bases and also between crack cocaine and other forms of cocaine base." 498 F.3d at 644. Therefore, for purposes of sentencing under § 841(b), the evidence must show that the substance at issue is crack, and not just cocaine base.Edwards, 397 F.3d at 576-77. Sentencing judges have wide latitude in the types of evidence they may consider in making factual determinations affecting a sentence. See United States v. Hankton, 432 F.3d 779, 790 (7th Cir. 2005). At Padilla's sentencing hearing, the government relied primarily on the testimony of Agent Gomez, a six-year veteran of ATF with five years specializing in narcotics trafficking, in its effort to prove the drug type. Agent Gomez testified to the following: on September 20, 2002, during a conversation with Padilla regarding a proposed drug transaction, Padilla offered to sell Agent Gomez crack cocaine. On September 26, 2002, Agent Gomez met the CI, Padilla, and Padilla's child in a K-Mart parking lot with the intention of purchasing drugs from Padilla and Santiago. While waiting for Santiago to arrive with the drugs, Agent Gomez asked Padilla how much longer it would be for the drugs to arrive. Padilla responded that the drugs were "in the cooking process, it was drying at the time. . . . That was the reason for the wait." Agent Gomez, who had made approximately twenty undercover crack cocaine purchases, understood the term "drying" to mean the final process of cooking crack cocaine.
Santiago eventually arrived with the drugs in a bag, and gave them to the CI, who smelled the drugs and gave them to Agent Gomez. Agent Gomez noted that the drugs had a "very, very strong, pungent smell," consistent with the smell of crack cocaine. When the CI asked about the quality of the drugs, Padilla responded that the drugs were "fresh, cooked right off the lamb" ...