Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 381-Ronald A. Guzman, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before MANION, EVANS, and TINDER, Circuit Judges.
Victor Sainz-Preciado pleaded guilty to conspiracy and attempt to distribute more than 5 kg of cocaine, but the district court found that he was responsible for more than 150 kg of cocaine for sentencing purposes and imposed a 262-month sentence. On appeal, Sainz-Preciado challenges the district court's drug quantity finding and application of the United States Sentencing Guidelines. Finding no error in the court's sentencing determinations, we affirm Sainz-Preciado's sentence.
Sainz-Preciado and Juan Jose Mena-Aguayo participated in an operation to distribute cocaine imported from Mexico across the United States. Mena-Aguayo would pick up cocaine shipments that arrived in Los Angeles and drive them to Chicago, where Sainz-Preciado would accept delivery. The two men agreed to make one such delivery in April 2004. In Los Angeles, Mena-Aguayo loaded 20 kg of cocaine into a secret compartment of his SUV and began the drive to Chicago. He made it as far as Iowa, where, on April 9, state police pulled him over and discovered the drugs. When questioned by the state police, Mena-Aguayo confessed that he had made similar cocaine deliveries to Sainz-Preciado in Chicago on two prior occasions. However, after the state police turned him over to the Drug Enforcement Agency ("DEA"), Mena-Aguayo changed his story, telling federal agents that he had made nine prior deliveries to SainzPreciado.
The DEA enlisted Mena-Aguayo's help to catch SainzPreciado in a controlled drug delivery, instructing MenaAguayo to contact Sainz-Preciado as though he had arrived in Chicago without incident. On April 10, in a series of recorded conversations, Mena-Aguayo contacted Sainz-Preciado and arranged to deliver the 20 kg of cocaine that he had brought from Los Angeles. During these conversations, the men were able to communicate their whereabouts and plan the logistics of the delivery using short, nondescript terms, apparently a code. For example, in his initial phone call to Sainz-Preciado, Mena- Aguayo stated that he had arrived at "the house," and Mena-Aguayo told Sainz-Preciado that he would meet him "at the seafood." Shortly after this call, both SainzPreciado and Mena-Aguayo traveled separately to a nearby Mexican seafood restaurant where they had also met during prior drug transactions.
Upon arriving at the restaurant, Sainz-Preciado expressed surprise that Mena-Aguayo had brought "only 20" kg of cocaine, implying that this amount was lower than previous shipments. Sainz-Preciado then stated that he would send his "buddy" to complete the transaction, which Mena-Aguayo understood to mean that one of Sainz-Preciado's associates would arrive and take physical delivery of the cocaine. Sainz-Preciado told MenaAguayo to wait at the house while he left and contacted his "guy" to collect the drugs.
Shortly after the men left the restaurant, Sainz-Preciado called Mena-Aguayo and said that they needed to change their delivery plans, as Sainz-Preciado feared that the police were following him. Sainz-Preciado told MenaAguayo to meet him "over here" where they had "bought the tapes," which Mena-Aguayo recognized as a Walgreens store where the men had bought duct tape to wrap the money collected from a previous drug deal. Sainz-Preciado's fears were, of course, justified, as federal agents were monitoring his conversations with Mena-Agauyo and tracking his movements. After MenaAguayo met Sainz-Preciado at the Walgreens parking lot and drove him into downtown Chicago, agents arrested Sainz-Preciado.
On June 8, 2005, Sainz-Preciado pleaded guilty to conspiracy under 21 U.S.C. § 846 to distribute more than 5 kg of cocaine, in violation of 21 U.S.C. § 841(a)(1), and attempted possession with intent to distribute more than 5 kg of cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Prior to sentencing, Sainz-Preciado submitted his "Version of Facts," in which he claimed that he had participated in only two drug deliveries with MenaAguayo, including the April 2004 transaction that led to his arrest. Sainz-Preciado also claimed that he was a mere underling in the drug operation, taking his instructions from Victor Ley, Mena-Aguayo's brother-in-law. According to Sainz-Preciado, Ley called Sainz-Preciado from Mexico and told him when Mena-Aguayo would make a cocaine delivery, how to meet Mena-Aguayo in Chicago, and who to call to take physical delivery of the drugs. Sainz-Preciado also claimed that immigration officials sent him back to Mexico following his March 31, 2003 arrest for illegal entry, meaning that he could not have accepted deliveries from Mena-Aguayo from that date until August 2003, when he made his way back to Chicago.
At his August 7, 2007 sentencing hearing, Sainz-Preciado declined to testify in support of his version of facts.MenaAguayo, on the other hand, did testify for the government and told a story that conflicted with SainzPreciado's version. Consistent with his confession to DEA agents, Mena-Aguayo testified that he made a total of ten cocaine deliveries to Sainz-Preciado between March 2003 and April 2004, including the final, controlled delivery. During each of these transactions, Sainz-Preciado paid Mena-Aguayo $400,000 to $600,000 for 20 to 34 kg of cocaine. Mena-Aguayo further testified that SainzPreciado never accepted the shipment personally but, as with the April 10, 2004 transaction, called various associates to pick up the drugs. As for Victor Ley's purported control over the Chicago operation, Mena-Aguayo acknowledged that he worked for Ley and that SainzPreciado was speaking to Ley on the phone throughout the controlled delivery. However, Mena-Aguayo also stated that Ley had nothing to do with the details of picking up the drug shipments that arrived in Chicago.
To show that Sainz-Preciado and Mena-Aguayo had developed a regular course of conduct for the cocaine shipments, the government introduced the transcripts of the April 10, 2004 conversations between the two men. Referring to the transcripts, Mena-Aguayo explained that he and Sainz-Preciado quickly recognized terms like "house" and "seafood" because they had established common meeting places from their nine prior drug deals. They had also developed common delivery procedures; by simply promising to "take care of things," SainzPreciado was able to communicate to Mena-Aguayo that he was summoning his associates to pick up the drugs.
Faced with Sainz-Preciado's and Mena-Aguayo's conflicting claims regarding the number of drug deals, the district court chose to credit Mena-Aguayo's testimony and concluded that Sainz-Preciado participated in nine or ten cocaine deliveries between 2003 and 2004. The court found Mena-Aguayo to be a convincing witness, noting that he testified against penal interest by admitting his own involvement in the multiple drug deliveries. Based on nine or ten shipments each involving 20 kg or more of cocaine, the court determined that the drug quantity attributable to Sainz-Preciado for sentencing purposes was more than 150 kg of cocaine. Under the United States Sentencing Guidelines, that quantity resulted in a base offense level of 38. U.S. Sentencing Comm'n, Guidelines Manual § 2D1.1(c)(1) (2004).
The court also concluded that Sainz-Preciado exercised managerial control over at least two associates, as he instructed these individuals when and where to take delivery of the cocaine shipments. In light of that finding, the court added three levels to Sainz-Preciado's offense level for his role as a "manager or supervisor" of the criminal activity. U.S.S.G. § 3B1.1(b). Correspondingly, the court rejected Sainz-Preciado's request for a two-level "safety valve" reduction in his offense level, which is available for only those drug offenders who (among other things) do not act as a "manager" or "supervisor" in the offense. U.S.S.G. § 5C1.2(a)(4); see also id. § 2D1.1(b)(7)*fn1 (providing a two-level deduction for defendants who meet the criteria of § 5C1.2(a)). Finally, because SainzPreciado pleaded guilty to the charged offenses, the court granted a two-level reduction ...