Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Nos. 05 CR 156-009 & 05 CR 156-001-Larry J. McKinney, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge
Before CUDAHY, KANNE, and EVANS, Circuit Judges.
Rodrigo Soto-Piedra and Miguel Hernandez pleaded guilty to conspiracy to distribute cocaine. See 21 U.S.C. §§ 846, 841(a)(1). Neither stipulated to a precise drug quantity when pleading guilty, and each now challenges his sentence. Soto contends that the district court exaggerated the drug quantity by relying almost exclusively on an informant's estimate that the probation officer repeated in the presentence report. Hernandez maintains that the court overstated his base offense level on the mistaken assumption that he was involved with crack rather than powder cocaine. We reject Soto's contention but agree with Hernandez that his case must be remanded.
The underlying facts are brief. In March 2005 an informant, Susana Ramirez, told authorities that between April and December 2004 she purchased 5 to 7 kilograms of powder cocaine each week from Soto and his girlfriend at a price of about $20,000 per kilogram. The Drug Enforcement Administration then set up a controlled buy in which Ramirez asked to purchase one-half kilogram of cocaine from Soto and his girlfriend. The girlfriend obtained the cocaine from Vicente Camarena-Salazar*fn1 and delivered it to Ramirez. Where Camarena obtained the cocaine is unknown. After this transaction authorities conducted surveillance on telephones used by Camarena and Soto.
Two months later, in May 2005, Soto called Camarena to inquire about buying one kilogram of cocaine. There was no discussion about crack. Camarena replied that he would check with his supplier. He contacted Hernandez, who volunteered that he could supply cocaine that would give "almost everything back in return," roughly "ninety-five percent," if Camarena's customer wanted the cocaine "for cooking." (A DEA agent testified at Soto's change-of-plea hearing that "cooking" means converting powder cocaine into crack and that 95% refers to the relative weight of the crack after the "cooking" process.) Camarena relayed this information to Soto, who did not say what he planned to do with the powder cocaine. After that Camarena continued to negotiate with Hernandez, though there was no more discussion about "cooking" or "return." At first Hernandez was reluctant to front the drugs as Camarena proposed, but Camarena assured him that Soto was reliable and in the past year had gotten "out up to five a week." But then the discussions ended with Hernandez telling Camarena that the deal was not "for sure." Hernandez did not think he could obtain any cocaine, and if he could it would be expensive. As far as this record shows, the deal never went through.
In late May, Camarena contacted Hernandez again on behalf of a different customer. Hernandez again boasted that he could supply powder cocaine that is "good for the kitchen" and "gives almost everything back" when converted to crack. This time Camarena responded that his customer indeed wanted something that "works well for the barbeque." Hernandez, however, had none of this high-quality cocaine in stock. Camarena was not interested in buying lesser-quality cocaine, and the conversation ended with Hernandez promising to call when some of higher quality became available.
Another week passed before Hernandez called Camarena on June 3, 2005, to ask how many "karats" he wanted. (The DEA agent testified that "karats" meant kilograms of powder cocaine.) Camarena told Hernandez that one customer wanted 10 kilograms and another wanted 5.
During this conversation, however, nothing was said about "cooking" or return or percentage or anything else indicating that Hernandez was offering to supply cocaine suitable for converting into crack, and the government directs us to no evidence suggesting that either of these two customers was the one who a week earlier wanted cocaine "for the barbeque." Hernandez ended the conversation by confirming that he could tell his supplier that it would be, "fourteen, fifteen karats." A few days later, DEA agents followed Hernandez as he drove from Lafayette, Indiana, to Chicago. The agents stopped Hernandez after he left Chicago and seized 1.996 kilograms of cocaine of unknown quality.The record does not disclose when Soto was arrested.
We review a finding of drug quantity for clear error. United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007). The government must prove drug quantity by a preponderance of the evidence, United States v. McGowan, 478 F.3d 800, 802 (7th Cir. 2007); United States v. White, 360 F.3d 718, 720 (7th Cir. 2004),and generally a district court may rely upon uncontradicted factual information in a the presentence report when assessing whether the government has satisfied that burden, see United States v. Thornton, 463 F.3d 693, 700-01 (7th Cir. 2006); United States v. Salinas, 365 F.3d 582, 587-88 (7th Cir. 2004); see also FED. R. CRIM. P. 32(i)(3)(A) (providing that sentencing court "may accept any undisputed portion of the presentence report as a finding of fact").
Prior to Soto's sentencing the probation officer recommended that he be held accountable for 170 kilograms of cocaine based on Ramirez's estimate that she obtained 5 to 7 kilograms from him each week from April to December 2004 at a price of $20,000 per kilogram. The probation officer arrived at 170 kilograms by assuming that the April-to-December period spanned 34 weeks and that Ramirez bought only 5 kilograms per week. Soto objected that the probation officer's calculation was not meaningfully corroborated. He contended that Ramirez's statement should be discounted because her role as an informant gave her incentive to embellish, and he also suggested through counsel that his own modest lifestyle refuted Ramirez's assertion that he was selling roughly half a million dollars of ...