Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 623-Ronald A. Guzman, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before COFFEY, RIPPLE and SYKES, Circuit Judges.
Juan Gonzalez pleaded guilty to one count of attempting to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 87 months' imprisonment, followed by five years' supervised release. On appeal, Mr. Gonzalez contends that the district court clearly erred when it denied him a sentence reduction under U.S.S.G. § 3B1.2 for minor participation in the offense. Because Mr. Gonzalez has not carried his burden of proving that his role in the offense was minor in comparison to that of his associates, we affirm the judgment of the district court.
In Texas, an informant for Immigration and Customs Enforcement ("ICE") received 27.75 kilograms of smuggled cocaine from two brothers, Ruben and Eric Aguas. The informant then drove to Chicago, the location of a scheduled drug deal. Once there, ICE agents replaced the cocaine with a non-cocaine substance resembling cocaine, obtained a tracking order for the informant's truck and installed trigger devices in the containers of fake cocaine. The agents then followed the informant to the site of the drug buy and observed Mr. Gonzalez transfer the fake cocaine from the informant's truck to the trunk of his own car. Mr. Gonzalez then placed $89,785 in cash in the informant's truck. Agents followed Mr. Gonzalez to his home, where they watched him bring the bags of fake cocaine inside. Shortly thereafter, they heard the alarm from the trigger device indicating that a suitcase containing the fake cocaine had been opened.
Authorities then arrested Mr. Gonzalez and, with his consent, searched his apartment. Mr. Gonzalez told them that he rented and lived in the apartment. Authorities discovered the fake cocaine, 248 grams of real cocaine, tape and plastic wrap, a blender with cocaine residue, three digital scales, weights totaling 200 grams, sandwich bags, air freshener cans, Seal-a-Meal bags, acetone, disposable respirators and a drug ledger. These items were in a bedroom that otherwise contained only a mattress and window coverings.
Mr. Gonzalez initially told authorities that he did not know that he was going to pick up cocaine when he drove to the informant's truck, but he later acknowledged that he had known that he would be picking up cocaine. Mr. Gonzalez also admitted that he had met the informant at the direction of a third person, but he refused to identify that person. Mr. Gonzalez pleaded guilty to the charges.
Mr. Gonzalez's presentence report ("PSR") recommended a base offense level of 34, see U.S.S.G. § 2D1.1(c)(4), and a three-level reduction for acceptance of responsibility, see id. § 3E1.1. Mr. Gonzalez's placement in criminal history category I, combined with his total offense level of 31, yielded an advisory guidelines range of 108 to 135 months' imprisonment. The PSR noted that, because each offense carried a mandatory minimum sentence of 10 years, Mr. Gonzalez's restricted guidelines range was 120 to 135 months' imprisonment. See 21 U.S.C. §§ 846, 841(b)(1)(A); U.S.S.G. § 5G1.1(c)(2).
Mr. Gonzalez objected to the PSR's classification of his role in the offense as that of an "average" participant. He submitted that he should receive a reduction under U.S.S.G. § 3B1.2 for being a minor participant. Mr. Gonzalez contended that he had been less involved than an average participant because he had not known the quantity of cocaine he was to pick up and had little prior experience with drug deals. Mr. Gonzalez asserted that he was far less culpable than Ruben and Eric Aguas, who had obtained the cocaine and gave it to the informant, and the "padrino," or "godfather," an associate of the Aguas brothers who had helped plan the delivery. R.28. According to Mr. Gonzalez, the conversation that he had with the informant during the delivery, which was recorded by authorities, made clear that this had been his first drug deal. The informant called the "godfather" when Mr. Gonzalez arrived, and the "godfather" told him that it was okay to leave the "food" with Mr. Gonzalez. Id. Mr. Gonzalez's only role in the scheme, according to him, was that of a courier and guardian of the stash house, his apartment. In exchange for taking the cocaine back to the stash house, Mr. Gonzalez was to receive only $1,000, a small share of the total profit to be made on the transaction. He had no customers of his own and no role in negotiating the price, quantity or transportation of the drugs. Mr. Gonzalez also argued that he should be found eligible for the "safety valve" provision of U.S.S.G. § 5C1.2 because he truthfully provided to the Government all of the information he had, an argument with which the Government agreed.
At the sentencing hearing, Mr. Gonzalez pressed these two objections to the PSR. With respect to his section 3B1.2 claim, Mr. Gonzalez contended at the sentencing hearing that another person stayed in his apartment and was responsible for cutting and distributing the drugs. According to Mr. Gonzalez, he was merely the "babysitter" of the stash house. Sent. Tr. 7. The Government responded that there was only one mattress in the apartment and that the bedroom was full of drug paraphernalia. The Government also noted that Mr. Gonzalez apparently had authority to handle the drugs because he opened the bag full of fake cocaine, setting off the trigger device, while no one else was present. The Government further submitted that the recorded conversation with the informant clearly showed that Mr. Gonzalez was familiar with the drug code because he used and understood the terms "godfather" and "food." Id. Additionally, the "godfather" on the other end of the line confirmed that Mr. Gonzalez could be trusted with the drugs. Id.
The district court considered these arguments and decided that Mr. Gonzalez did not qualify for a minor-participant reduction. The court observed that, "unless you are pretty darn sure you are authorized to do so, when you are dealing with a shipment of drugs on consignment, you don't fool around with the package, not unless you want to risk your life." Id. at 9. The district court agreed that Mr. Gonzalez qualified for the safety-valve reduction, which brought Mr. Gonzalez's total offense level down to 29, with a new advisory guidelines range of 87 to 108 months' imprisonment. The safety-valve reduction also gave the court the option of sentencing below the statutory minimum. The court then sentenced Mr. Gonzalez at the bottom of the resulting advisory guidelines range, to a sentence of 87 months' imprisonment.