Argued February 11, 2013.
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:10-cr-00444-1&2 — Samuel Der-Yeghiayan, Judge.
Before Easterbrook, Chief Judge, and Posner and Tinder, Circuit Judges.
TINDER, Circuit Judge.
These consolidated criminal sentencing appeals are brought by two brothers, Jose and Ismael Zuno, who were involved in the distribution of cocaine and marijuana in the Addison, Illinois area from November 2008 until December 2009. In June 2010, their illicit activities resulted in federal criminal charges being filed against them. The Zunos were charged with being members of a conspiracy to possess cocaine and marijuana with the intent to distribute it. See 21 U.S.C. § 846. Ismael also was charged in nineteen cocaine distribution counts. See id. § 841(a)(1). His younger brother, Jose, was charged in twenty-one additional counts: nineteen for cocaine distribution, see id., and two for the use of a communication facility to commit a drug trafficking offense, see id. § 843(b). Both brothers had prior felony drug convictions, so the prosecution filed an information pursuant to 21 U.S.C. § 851 as to both, triggering for each of them the potential of a ten-year mandatory minimum term of incarceration. Ultimately, both Zunos pleaded guilty to the conspiracy count and Ismael also pleaded guilty to the nineteen distribution counts. Jose's plea was entered pursuant to a plea agreement which included provisions resulting in the dismissal of all of the other charges against him and the prior conviction information; he was sentenced to an 80-month term of incarceration. Ismael's guilty plea was entered without an agreement with the government, which is sometimes called a "blind" plea; he was sentenced to a prison term of 120 months.
In calculating the brothers' Sentencing Guideline offense levels at their respective sentencing hearings, the district judge determined that both brothers were organizers or leaders of a drug organization that involved five or more participants or was otherwise extensive pursuant to U.S.S.G. § 3B1.1(a), resulting in a four-level increase in their base offense levels. Both Zunos dispute that guideline determination on appeal. Ismael also challenges the drug quantity attributed to him and the mandatory minimum ten-year sentence he received because of the application of the § 851 prior drug conviction enhancement. We will relate the facts relevant to these issues as they were developed in the district court and then discuss the sentencing challenges raised.
The Federal Bureau of Investigation (FBI) began an undercover investigation of Ismael Zuno in April 2008. A law enforcement officer posed as a cocaine purchaser and from May 2008 until January 2009, purchased cocaine from Ismael about nineteen times, with two of those purchases also including marijuana. It appears that Jose began assisting Ismael with the operation around November 2008. As time went on, the investigation expanded to include Jose and affiliates of the Zunos. In the latter part of the investigation, a wiretap order for a cell phone used principally by Jose was issued and numerous phone conversations related to the Zuno drug trafficking were intercepted.
Twice in 2008, first in late November and then in early December, Jose delivered cocaine (approximately 55 grams on each occasion) that the undercover officer had ordered from Ismael. Apparently unbeknownst to the FBI, the Chicago Police Department (CPD) was interested in Ismael too, and on November 16, 2008, the CPD executed a state-court-issued search warrant for Ismael's residence. The search yielded approximately 125 grams of marijuana and a .357 magnum revolver. Ismael was charged in an Illinois court with the manufacture/delivery of a controlled substance and possession of drug paraphernalia and a firearm without having a Firearm Owner's Identification Card. He pleaded guilty to the manufacture/delivery charge and was sentenced to one year of imprisonment.
But that wasn't the only legal problem Ismael had besides the FBI investigation. He was also arrested in January 2009 for multiple counts of murder arising from a shooting (unrelated to the drug investigation) and was jailed pending trial in Cook County Circuit Court. Obviously, during that incarceration, Ismael's hands-on involvement in the drug distribution efforts was involuntarily limited, so Jose stepped up to direct the operation. Part of Jose's increased involvement began with a contact he made with the undercover officer who had been ordering cocaine from Ismael. Jose provided the officer with his cell phone number for the placement of future cocaine orders, thus leading to the wiretap. Subsequently, and continuing up until December 2009, the undercover officer placed orders directly with Jose on about sixteen occasions, and the deliveries were either made or arranged for by Jose, totaling about 1400 grams of cocaine.
During Ismael's incarceration, Jose continued to consult Ismael about their drug business. Two calls in early May 2009 exemplify that continuing involvement. On the first of May, Jose told Ismael about his concerns regarding a particular drug customer who had seen Jose's drug stash. The following day, Ismael was recorded asking Jose about another regular drug buyer, and Ismael criticized the prices that Jose was charging that customer. Later on, in November of that year, Jose reported to Ismael that a competing drug dealer had been stealing their customers so Jose had begun stealing that dealer's customers. Jose's plea agreement contained several relevant admissions, including that he and Ismael "were the leaders of the Zuno Drug Trafficking Organization" and that during Ismael's incarceration, Jose "repeatedly consulted with Ismael … on their drug trafficking operation."
Ismael and Jose had help in the drug distribution from friends and family. Their brother-in-law, Juan Rochel, was their cocaine supplier. The Zunos often received the cocaine from him on credit, which enabled them to pay the cost of it after they had redistributed the multiple-ounce quantities to their various customers, a practice known as "fronting." From various intercepted telephone calls between Jose and Rochel, the investigators learned that Jose would allow Rochel to enter his house when he was away to make cocaine deliveries. Rochel would store the cocaine in a cereal box or pots in Jose's kitchen and then communicate the location to Jose. For example, to explain one such delivery, Rochel told Jose that he should "eat some cereal" when he returned to his residence. Similarly, when a certain quantity of cocaine Rochel had delivered was not moving, Rochel was able to ask for a return of the drugs so he could supply them to another outlet. Rochel was also aware that Ismael's girlfriend's residence was used for storage of the Zuno drugs.
Another Juan (Juan Zuno), a cousin of the brothers, assisted them by delivering and picking up cocaine at their direction. He also served as a driver for Ismael and later Jose when they were delivering drugs. One of the assignments included driving Ismael to deliver drugs to a customer who was, in fact, the undercover officer. On other occasions, Juan Zuno drove Jose to deliver cocaine to the undercover officer. On one specific occasion, Juan delivered about 250 grams of cocaine to the officer to fill an order placed with Jose.
Ismael's girlfriend (Individual D) allowed Jose to store drugs at her residence. On occasion, she delivered cocaine from her home to him. On November 6, 2009, a phone conversation between Individual D and Jose was intercepted. During the call, Jose told Individual D to retrieve a box under her bed and bring him the "little white bag." He explained that he did not like driving around with drugs (which he referred to as "shit") in his vehicle because he did not have a license. Her response was "Oh, just this little one?" Zuno also informed Individual D of certain important developments in the operation. For example, after Juan Zuno's delivery of the cocaine to the undercover officer, he was stopped by law enforcement agents who seized the buy money, $6, 740, from him. Later that day, Jose called Individual D to inform her about the stop. During that intercepted conversation, Jose also told her that there were currently no drugs stored at her residence so she did not have to worry, even though he thought the DEA ...