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United States v. Acosta

July 15, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
NICOLAS J. ACOSTA, ERNESTO ESTRADA III, GREGORIO M. ACOSTA, JR., JORGE N. BARRAGAN, JR., PEDRO ZAMORA, FLORENTINO CASTILLO, DONALD K. FAIRBANKS, AND ROBERT G. SMITH, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Western District of Wisconsin. No. 05 CR 39-Barbara B. Crabb, Chief Judge.

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

ARGUED APRIL 30, 2007

Before ROVNER, WOOD, and SYKES, Circuit Judges.

The eight defendants in this case participated in what we have previously described as a "long-running" conspiracy involving the distribution of "vast amounts of crack cocaine" by the Latin Kings gang on the Lac Courte Oreilles Reservation in Northern Wisconsin. United States v. Acosta, 474 F.3d 999, 1000 (7th Cir. 2007). Four of the defendants were convicted following a jury trial; the others pleaded guilty. In addition to various individual issues raised on appeal, all of the defendants (with the exception of Robert Smith, whose attorney filed an Anders brief) challenge the district court's sentencing findings regarding drug quantity. We affirm.

I. Background

On March 22, 2005, a grand jury sitting in the Western District of Wisconsin returned an eight-count indictment against 11 defendants stemming from their involvement in the Latin Kings crack distribution network on the Lac Courte Oreilles ("LCO") Reservation in Sawyer County, Wisconsin. The case was assigned to Chief Judge Barbara Crabb, who also presided over the prosecution of other defendants involved in the LCO Latin Kings drug organization. See Acosta, 474 F.3d at 999-1000.

Count 1-the centerpiece of the indictment-accused John A. Radermacher, Pedro Zamora, Donald K. Fairbanks, Andre R. Lasieur, Robert G. Smith, Gregorio M. Acosta, Jr., Nicolas J. Acosta, Jorge N. Barragan, Jr., Florentino Castillo, Ernesto Estrada III, and Nicholas W. Thayer of conspiracy to distribute cocaine and cocaine base in excess of 50 grams. The drugs were obtained primarily from sources in Milwaukee and transported to the reservation for distribution and resale by members of the Latin Kings gang operating there. Some of the incoming drugs were handled as "the Nation's Dope," that is, drugs obtained and sold by the Latin Kings with some of the proceeds returning to the gang.

Because of the sprawling scope of this case, the number of defendants, and the variety of issues each raises on appeal, we will initially provide only a brief, general overview of the conspiracy, leaving the necessary details for our analysis of the arguments made by the individual defendants. Beginning in January 1999 and running through December 2003, the Milwaukee Latin Kings gang established and maintained a crack distribution network on the LCO Reservation in collaboration with members of the LCO Latin Kings. Gang members and nonmember coconspirators obtained powder and crack cocaine from various sources-mainly suppliers in Milwaukee but also some in Minneapolis-and transported the drugs to the reservation for "rocking up" (if the cocaine was not already in crack form), packaging, and resale from various drug houses.

The two LCO drug houses central to the charged conspiracy were residences maintained by Yvonne Dennis (together, at various times, with certain of the charged coconspirators) and Gregorio Acosta, Jr. (a "boss" in the Milwaukee Latin Kings and "regional officer" in the LCO Latin Kings), and his wife, Spring Lasieur Acosta. Dennis, Spring Acosta, and two other women figuring prominently in the conspiracy, Candace Radermacher (wife of John Radermacher) and Jacqueline Martinson (girlfriend of Jorge Barragan), were charged separately.

The illicit activities of the LCO Latin Kings crack conspiracy were facilitated by an organizational structure typical of the Latin Kings-led by an "Inca," with a "Cacique" as the second-in-command, and an Enforcer who addressed violations of Latin Kings law. "Shorties" were adolescents too young to be full-fledged gang members, but who could work their way up to membership by doing the bidding of more senior members of the gang. The core gang members would hold semiformal meetings (or "demos") at which they would discuss (among other things) the details of the drug distribution operation and receipt of its proceeds.

II. Analysis

A. Gregorio Acosta, Jr.

Gregorio Acosta, Jr., was charged with conspiracy to distribute cocaine and cocaine base and several counts of distribution of cocaine and cocaine base. He pleaded guilty to the conspiracy count and was sentenced to 339 months, the bottom of the advisory sentencing guidelines range of 360 months to life, minus 21 months he spent in state prison for related drug-trafficking conduct.

A "boss" in the Milwaukee Latin Kings, Gregorio supplied powder and crack cocaine to the LCO Latin Kings organization from early in January 1999 until his imprisonment on state drug charges in January 2001. He also maintained a residence on the LCO Reservation from which crack was sold to retail customers. After his release from state prison in October 2002, he resumed crack-cocaine trafficking (there was evidence that he remained involved in the conspiracy while he was in prison), and this continued until his arrest on the charges in this case in August 2003. Apart from the basic concessions made in his guilty plea, the specifics of Gregorio's role in the conspiracy-and hence, the evidentiary basis for the district court's drug-quantity findings, which he challenges-were established largely through the statements and trial testimony of his wife, Spring Lasieur Acosta.

Spring, a "Latin Queen," was involved in the LCO Latin Kings drug conspiracy essentially from its inception. In 1997 Spring Lasieur met and started dating coconspirator Jorge Barragan, a member of the Milwaukee Latin Kings. Through him she met coconspirator Florentino Castillo, also a Latin Kings gang member, and coconspirator Ernesto Estrada III, Barragan's cousin. In late 1998 or early 1999, Barragan, Castillo, and Estrada began making regular trips to the LCO in connection with the establishment of a "region" between the Milwaukee and LCO Latin Kings for the distribution of crack cocaine. Gregorio Acosta, his brother Nicolas Acosta, Barragan, and Castillo (among others) were initial "regional members" of the LCO Latin Kings "region." Spring did not meet Gregorio, her future husband, until mid-1999; by then the Milwaukee Latin Kings had established a foothold on the LCO Reservation and, with LCO Latin Kings members, were distributing large amounts of crack there.

From January 1999 to August 1999, Spring made regular drug-running trips with Estrada in furtherance of the LCO crack-distribution conspiracy, traveling from Milwaukee to the reservation at least twice a week with between one and four ounces of "mostly formed cocaine-crack cocaine" and, on some trips, large quantities of marijuana. Gregorio moved from Milwaukee to the LCO sometime in 1999, and in August 1999 Estrada introduced Gregorio to Spring. At that point, Spring testified, Gregorio had already been involved in supplying cocaine to the LCO Latin Kings for some time. From September 1999 to January 2000, Spring and Gregorio, occasionally accompanied by Estrada, traveled between Milwaukee and the LCO two or three times a week, bringing between three and four ounces of powder and crack cocaine to the reservation on each trip. In December 1999 Spring became pregnant with Gregorio's child, and the couple married in 2000.

Spring testified that from January 2000 to January 2001, Gregorio traveled to Milwaukee at least every three weeks or so, returning to the LCO with between one and four ounces of cocaine on each trip. Spring and Gregorio's residence on the LCO served as a drug house from which they, Castillo, and Nicolas Acosta would prepare, package, and sell crack cocaine to users on the reservation. In March 2000 Gregorio was arrested in Washburn County, Wisconsin, in possession of 30 grams of crack. He was released on bond and resumed cocaine trafficking. In January 2001 he was convicted and sentenced to prison on state drug charges stemming from the Washburn County arrest. He was released from prison in October 2002 and resumed selling crack cocaine with Spring, resupplying as needed from Milwaukee. This activity continued until his arrest in August 2003.

Various aspects of Spring's testimony were corroborated by other coconspirators-most notably, according to the district court, Candace Radermacher, Donald Fairbanks, and Sundown Doney (a member of the LCO Latin Kings), among others. Gregorio's presentence report ("PSR") also described controlled buys of crack from Gregorio at the Lasieur-Acosta drug house in July 2003, and the recovery of a quarter kilogram of cocaine that had not yet been "rocked up" (converted into crack) in their house at the time of Gregorio's August 2003 arrest.

Gregorio argues on appeal that the district court improperly denied him the two-level sentencing guidelines adjustment for acceptance of responsibility, see U.S.S.G. § 3E1.1, because the court considered his objections to the PSR's relevant-conduct analysis to be frivolous. The government initially recommended that the court consider Gregorio's acceptance of responsibility but withdrew that recommendation based on his objections to the PSR. The district court's decision to deny credit for acceptance of responsibility is reviewed for clear error. United States v. Lister, 432 F.3d 754, 758 (7th Cir. 2005).

The commentary to the acceptance-of-responsibility guideline suggests that "a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility." U.S.S.G. § 3E1.1 cmt. n.1(a). We have said that "a defendant should not be denied a reduction for acceptance of responsibility when he only challenges the legal conclusion that should be drawn from facts that he has admitted." United States v. Booker, 248 F.3d 683 (7th Cir. 2001) (citing United States v. Purchess, 107 F.3d 1261, 1266 (7th Cir. 1997) (emphasis added)). Further, in Purchess,we observed that "where the defendant remains otherwise silent as to relevant conduct but his lawyer challenges certain facts alleged in the PSR, we think the court should attempt to ensure that the defendant understands and approves the argument before attributing the factual challenges in the argument to the defendant for purposes of assessing acceptance of responsibility." 107 F.3d at 1268. We have recently emphasized that Purchess is best understood as requiring the sentencing court to attempt to clarify the defendant's understanding of relevant-conduct objections only where there is reason to believe the defendant might be confused or disagrees with counsel. See United States v. Chen,497 F.3d 718, 720-21 (7th Cir. 2007); Lister, 432 F.3d at 760.

Gregorio's objections to the PSR's relevant-conduct determination were factual, not legal; he challenged the drug-quantity amounts attributable to him during different phases of the conspiracy. Furthermore, there is nothing in the record to indicate he was confused about or disagreed with his counsel's objections to the PSR's relevant-conduct analysis. Judge Crabb asked him if he had read the PSR and its addendum, and inquired whether there was anything he objected to that his attorney had not already raised in his written objections. Gregorio confirmed that he had read the documents and had nothing to add. Following lengthy arguments from the government and Gregorio's counsel, Judge Crabb credited Spring Acosta's testimony, found it corroborated by coconspirators, and held that a "reasonable and fair estimate" of Gregorio's relevant conduct involved "well in excess of 1.5 kilograms of cocaine base or crack cocaine." As we will explain in a moment, this finding is amply supported by the record. Accordingly, it was not clear error for the district court to conclude Gregorio had frivolously contested relevant conduct and deny his request for the two-level adjustment for acceptance of responsibility.

Gregorio also claims several due-process violations based on the district court's determination of drug quantity. Gregorio's argument rests in part on Judge Crabb's reference to having sat through the trial of certain other defendants and heard substantial evidence to support a finding of 1.5 kilograms of crack. Gregorio takes this to mean that the district court relied on information unavailable to him and thus deprived him of notice and the opportunity to respond. The government notes in response that before sentencing, Gregorio was provided all the excerpts of trial testimony on which the government intended to rely for the determination of relevant conduct. Gregorio acknowledges this, but suggests that Judge Crabb's comment might mean she considered other parts of the trial testimony not available to him. This is sheer speculation, and in any event, of no consequence; the district court does not violate the due-process rights of a coconspirator who pleads guilty by relying, for sentencing purposes, on evidence presented at the trial of coconspirators. Gregorio was on notice that under the sentencing guidelines, he would be held responsible for the relevant conduct of his coconspirators if reasonably foreseeable to him (more on this point later). See U.S.S.G. § 1B1.3(a)(1)(B). We reject this aspect of Gregorio's due-process argument.

Gregorio also contests the reliability of the evidence related to drug quantity, framing his argument as a due-process challenge. See United States v. McEntire, 153 F.3d 424, 435-37 (7th Cir. 1998); United States v. Townsend, 73 F.3d 747, 751 (7th Cir. 1996) ("[A] defendant has a due process right to be sentenced on the basis of accurate information."). "Due process is specifically satisfied when the district court determines the quantity of drugs attributable to a defendant by a preponderance of the evidence . . . [using information that] has 'sufficient indicia of reliability to support its probable accuracy.' " Townsend, 73 F.3d at 751 (quoting United States v. Ewers,54 F.3d 419, 421 (7th Cir. 1995) (other citations omitted)). Here, the district court relied primarily on the trial testimony of Spring Lasieur Acosta, as corroborated by Candace Radermacher and other coconspirators. (Spring Acosta pleaded guilty and was herself held responsible for more than 1.5 kilograms of cocaine. See Acosta, 474 F.3d at 1001.) This sort of sentencing information plainly carries "sufficient indicia of reliability" to satisfy due-process minimums. We think Gregorio is using the language of due process to make what is really a challenge to the factual sufficiency of the district court's drug-quantity determination.

The district court's factual findings regarding drug quantity are reviewed under the deferential clear-error standard. United States v. Cross, 430 F.3d 406, 410 (7th Cir. 2005). A factual finding is clearly erroneous "only when, on the entire evidence, the reviewing court is left with the definite and firm conviction that a mistake has been committed." United States v. Johnson, 227 F.3d 807, 813 (7th Cir. 2000) (quotations omitted). Drug quantity for purposes of determining the applicable sentencing guideline may be established by the use of reasonable estimates. United States v. Joiner, 183 F.3d 635, 640 (7th Cir. 1999). In the case of jointly undertaken criminal activity, the sentencing guidelines direct that the relevant-conduct determination should take account of "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity," see U.S.S.G. ยง 1B1.3(a)(1)(B), whether or not charged as a conspiracy. Booker, 248 F.3d at 688. This requires the ...


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