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United States v. Bautista

July 14, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROGELIO BAUTISTA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 19-James F. Holderman, Chief Judge.

The opinion of the court was delivered by: Manion, Circuit Judge.

ARGUED DECEMBER 7, 2007

Before EASTERBROOK, Chief Judge, and MANION and KANNE, Circuit Judges.

On March 22, 2005, Rogelio Bautista was indicted, along with four co-defendants, for his role in a conspiracy to manufacture and distribute methamphetamine. Bautista was convicted following a four-day jury trial, and sentenced to 235 months in prison. Bautista's sentence resulted, in part, from the district court's findings that he was responsible for between five and fifteen kilograms of methamphetamine, and that he was not a minor or minimal participant in the conspiracy. Bautista appeals these findings, and we affirm.

I.

During the summer of 2004, the Drug Enforcement Administration ("DEA") began investigating a meth-amphetamine ("meth") distribution operation run by Bautista's co-defendant, Heber Gomez-Albaranga. DEA Task Force Officer Luis Dominguez acted in an under-cover capacity during the course of the investigation, posing as a drug dealer involved in the distribution of meth and cocaine. Dominguez was also the govern-ment's primary witness at Bautista's trial.*fn1 Dominguez expressed interest in purchasing meth from Gomez-Albaranga, and for that purpose Gomez-Albaranga introduced him to co-defendant Roberto Lopez in June or July 2004.

Dominguez eventually arranged to purchase one pound of meth from Lopez. When Dominguez met with Lopez on September 24, 2004, to complete the transaction, Lopez was accompanied by co-defendant Daniel Perez and another man known only as Luis. At Dominguez's suggestion, Lopez agreed to meet later that day at a gas station and travel from there to a nearby warehouse to complete the transaction. When Dominguez arrived at the gas station, he observed Lopez, Perez, and Luis speaking with the driver of a parked vehicle. At trial, Dominguez identified Bautista as the driver. Lopez approached Dominguez and informed him that Luis would ride in Dominguez's car, that Lopez would follow Dominguez, and that Bautista would follow Lopez. Dominguez raised concerns about too many people proceeding to the warehouse, and Lopez assured him that it would only be himself, Luis, and Bautista.

While driving to the warehouse, Luis told Dominguez that the price for the meth was $11,000, and that $1,000 of that would be used to pay "the driver*fn2 ." Once the caravan arrived at the warehouse, Luis exited Dominguez's vehicle and approached the one driven by Bautista. Dominguez also exited his vehicle, and he observed Bautista open a passenger-side compartment inside the car that would normally be used to house an air bag. Luis removed a four-inch square plastic bag from the compartment. Dominguez, Lopez, and Luis, but not Bautista, proceeded inside and completed the transaction. At trial, the parties stipulated that the bag contained 493 grams, or a little over one pound, of meth. Bautista also testified at trial, and he denied any involvement in this incident, stating that he does not own a car and does not have a driver's license.

A few months later, Dominguez met with Gomez-Alberanga and told him he had a source from whom he could obtain pseudoephedrine, the primary ingredient in meth. They agreed to move forward with an arrangement whereby Dominguez would provide pseudoephedrine and a laboratory in which to cook the meth, and Gomez-Alberanga would supply the remaining necessary chemicals and a chemist, or "cook," to carry out the process.

Dominguez met with Lopez, Perez, and Bautista at a restaurant on January 4, 2005, to further discuss this plan. While all four men were seated at the same table, Dominguez told Lopez he could obtain five boxes of pseudoephedrine, each containing 30,000 sixty-milligram pills. Lopez responded positively and stated that that much pseudoephedrine would yield approximately twelve pounds of meth. Their conversation was in Spanish, the language spoken by Bautista, and Dominguez testified that Bautista sat no more than three feet away during the entire conversation. Testifying in his own defense, Bautista stated that he did not pay attention to what Dominguez and Lopez were talking about during this meeting, and that he was speaking only with Perez.

On January 24, 2005, Dominguez met with Gomez-Alberanga, Lopez, Perez, Bautista, and another co-defendant, Jose Olivas-Ramirez, to inspect the warehouse represented by Dominguez to be the lab location. Olivas-Ramirez was the cook to whom Gomez-Alberanga referred earlier. At trial, the jury watched a DEA surveil-lance video showing the men conversing and viewing different aspects of the premises, which was roughly the size of a two-car garage. At one point Olivas-Ramirez expressed concern about a gas heater in the warehouse with an open flame because of the combustible nature of the chemicals used in manufacturing meth. The video showed the entire group looking at the furnace. Gomez-Alberanga listed the items that would be needed including four buckets, alcohol and acetone in multiple gallon quantities, and a coffee maker. Olivas-Ramirez stated that with the proper materials and set-up, the warehouse would be adequate for cooking the meth, and like Lopez, he estimated he could manufacture up to twelve pounds of meth from the pseudoephedrine Dominguez supplied. Dominguez described Bautista as standing anywhere from right next to Dominguez to ten feet away during this conversation. Bautista testified during his direct testimony that he only stayed in the warehouse for ten minutes before returning to the car to wait with Perez and warm up. On cross-examination, however, he admitted standing next to Dominguez and hearing the discussion set forth above.*fn3 At the conclusion of this meeting, Dominguez and Lopez agreed to meet the next day for delivery of the pseudoephedrine.

On January 25, 2005, Dominguez and another undercover agent met Gomez-Alberanga, Olivas-Ramirez, Lopez, Perez, and Bautista at Gomez-Alberanga's residence in Chicago to finalize their plans, and so that Olivas-Ramirez could give Dominguez some chemicals for the manufacturing process. At the direction of the defendants, Dominguez and the other agent went to a restaurant named Chela's to deliver the pseudoephedrine. A third undercover agent arrived in a vehicle carrying the pseudoephedrine. Dominguez, Lopez, and Bautista began carrying boxes of pseudoephedrine into the basement of Chela's. At this time, Dominguez observed many items used in meth manufacturing in the room to which they were bringing the pseudoephedrine, including cans of acetone, cutting agents, a funnel, a pitcher, a beaker, a flask, and coffee pot.*fn4 Dominguez and Bautista went outside to retrieve more pseudoephedrine, and when Dominguez handed Bautista another box, he was arrested.

A four-count indictment was returned against Bautista, Gomez-Alberanga, Lopez, Olivas-Ramirez, and Perez on March 22, 2005. Bautista was charged in Count One with conspiring from August 2004 until January 25, 2005, to manufacture and distribute 500 grams or more of meth, in Count Three with distributing approximately one pound of meth on September 24, 2004, and in Count Four with attempting to manufacture approximately 450 grams of meth on January 24 and 25, 2005. The case against Bautista proceeded to trial on November 7, 2005. In addition to the testimony noted above, Kreft testified generally regarding the process by which meth is manufactured. The government also asked Kreft how much meth could have been produced from the 150,000 pseudoephedrine pills. Bautista objected to this testimony, and his objection was sustained when Kreft admitted that he did not know how much meth the defendants could have made because of his lack of knowledge regarding their background and abilities in chemistry. On November 14, 2005, the jury returned a verdict finding Bautista guilty on all three counts in which he was charged.

Bautista's sentencing took place over four hearings during which Gomez-Alberanga, Olivas-Ramirez, and Perez testified in support of Bautista's motion for an offense level reduction based on minor or minimal participation in the conspiracy. Each of the men testified that they never discussed meth with Bautista, and Gomez-Alberanga repeatedly stated his belief that Bautista had nothing to do with the operation. The district court stated that upon consideration of the evidence presented at trial and sentencing, as well as after weighing the ...


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