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United States v. Felix-Felix

April 10, 2009


The opinion of the court was delivered by: Judge Joan B. Gottschall


Petitioner Guadalupe Felix-Felix ("petitioner" or "Guadalupe") has filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons explained below, that petition is denied.


In September 1997, Drug Enforcement Administration ("DEA") agents conducting surveillance of a known center for drug transactions in Cicero, Illinois, observed Guadalupe and his cousin Francisco Felix-Felix ("Francisco") making calls from pay phones and conducting brief meetings with other individuals in and around that area. At one point, the agents followed the two Felix-Felixes to an apartment in Cicero, where the officers asked for and received consent from Guadalupe and Francisco to search the premises. Two handguns and $6,100 in cash was discovered and seized. They made no arrests at the time, and the September 1997 event is not at issue in this case.

Several weeks later, agents observed Guadalupe and Francisco at a currency exchange and followed them to a house at 211 Vintage Road in Buffalo Grove, Illinois. A few months later, on April 1, 1998, they followed their lead on the house and interviewed some of the neighbors. The neighbors confirmed that Guadalupe and Francisco frequented the Buffalo Grove residence. The neighbors also mentioned that they rarely saw Guadalupe and Francisco outside the home, but they often saw them driving in and out of the garage in a white Jeep.

At about 1:45 p.m. the next day, DEA agents conducting surveillance of the Buffalo Grove residence saw Guadalupe leave the garage driving a rented maroon van. The agents also saw a parked white Jeep Wrangler inside the garage. Agents followed the maroon van to a McDonald's fast food restaurant in Hickory Hills, Illinois. While they watched, Guadalupe exited the van, went inside to have a meal, walked to a nearby pay phone, and placed several calls. He waited by the telephone until a man, later identified as Eduardo Vargas, approached and looked inside the van. Vargas spotted Guadalupe, walked to the pay phone, and shook hands with him. Vargas then climbed into the van alone, and drove it about a mile away, as agents followed. Without making any stops, Vargas returned to the McDonald's parking lot and placed a telephone call from the same pay phone.

In the meantime, DEA agents had continued surveillance of Guadalupe, who had left the McDonald's and walked to a nearby Walgreen's drug store. After Vargas used the pay phone, Guadalupe left the drug store and met Vargas at the McDonald's. The two then left the McDonald's together and hurriedly walked to the rear of the building. As they walked away from the McDonald's, Guadalupe bent down and placed the van keys on the ground.

After a glance through the van windows revealed a black suitcase and a box for a measuring scale, the agents approached the two men, who by this time had walked into a residential neighborhood south of the shopping center, and asked them if the van belonged to one of them. Initially, they both denied ownership, but after further questioning, Guadalupe admitted that he had been driving the van earlier that day. Agents then brought Guadalupe and Vargas back to the McDonald's restaurant. Guadalupe took the agents to the parking lot area where he had placed the keys to the van on the ground, and he gave the keys to the agents. At some point, either before or after returning to the parking lot, Guadalupe gave the agents written consent, in Spanish, to search the van.

The police conducted their search with the help of a drug-sniffing dog. As soon as the dog jumped into the back of the van, he provided a positive alert for the presence of drugs in the box and the suitcase. A search of the box and the suitcase revealed 50 kilograms of cocaine (confirmed by a field test). The agents then informed Guadalupe and Vargas of their Miranda rights and formally arrested them.

After Guadalupe's arrest, DEA agents returned to the house in Buffalo Grove and recommenced their surveillance while they waited for a search warrant. At approximately 9:15 p.m., agents observed Francisco pull into the subdivision driving a white Jeep like the one the agents observed earlier in the garage. When Francisco turned into his cul-de-sac and saw the agents' cars, he sped past the agents and did not stop at the house. They pursued him until he was forced to stop at a dead-end street. The agents approached Francisco and asked him, in Spanish, why he was driving in the area and why he did not pull into the garage of the house. He gave some evasive answers, but before too long he signed a written consent form permitting the agents to search the house and garage; he also gave them the garage door opener and keys to the house.

Two agents stayed outside with Francisco while the search was conducted. Soon after the search began, an agent came back out and reported that he had found syringes and pharmaceuticals. Asked about these items, Francisco denied ownership. The agents then discovered a suitcase in the foyer closet containing 50 kilograms of cocaine. At this time, the agents advised Francisco of his rights (in Spanish) and arrested him. He requested counsel, at which point all questioning ceased.

On April 22, 1998, Guadalupe, Francisco and Vargas were all indicted on one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and two counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Guadalupe filed a motion to suppress the statements he made during the agents' questioning of him and the evidence obtained from the search of the van. He argued that the seizure was an arrest for which probable cause was required. Guadalupe further urged that the evidence should be suppressed because the DEA agents had failed to advise him that, as a citizen of Mexico, he had a right to communicate with a consular officer of his country pursuant to Article 36 of the Vienna Convention on Consular Relations, art. 36, April 24, 1963, 21 U.S.T. 77.

On September 28, 1999, then district court Judge Ann Claire Williams denied Guadalupe's motion and his accompanying request for an evidentiary hearing. The court found that Guadalupe's confrontation with the agents did not violate the Fourth Amendment. Additionally, the court found that while the Vienna Convention had been violated, Guadalupe had not shown that the violation warranted exclusion of the evidence. After this ruling, Guadalupe and Francisco (whose motion to suppress was also denied) entered guilty pleas on all three counts, reserving their rights to appeal the district court's denial of their suppression motions. After the entry of the pleas, the case was transferred from Judge Williams to this court. On July 13, 2000, this court denied Guadalupe's request for a reduction in his offense levels based on his minor role in the conspiracy as well as his acceptance of responsibility, and sentenced him to 151 months on each count, to run concurrently, and five years of supervised release.

On appeal, the Seventh Circuit affirmed the district court's decision on the suppression ...

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