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United States v. Valenzuela

United States District Court, N.D. Illinois, Eastern Division

October 19, 2016

UNITED STATES OF AMERICA,
v.
WATKETA VALENZUELA,

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey United States District Judge.

         Defendant Watketa Valenzuela (“Defendant”) was originally sentenced to 360 months imprisonment for conspiring to distribute cocaine base or “crack.” Defendant now seeks a reduction of that sentence [174], based upon amendments to the Federal Sentencing Guidelines. For the reasons discussed below, Defendant's motion is denied.

         I. Background

         On March 10, 1997, Defendant executed a written plea agreement with the government, pleading guilty to Count One (Conspiracy to Possess Cocaine With Intent to Distribute, 21 U.S.C. § 846) and Count Two (Employment or Use of Persons Under Eighteen Years of Age in Drug Operations, 21 U.S.C. § 861(a)(1)), of an eight-count indictment. [180] Ex. A. Defendant admitted that over a seven-month period he conspired with (and indeed, “managed”) others in the distribution of crack and powder cocaine in the south side of Chicago. Id. The parties disputed the applicable base offense level under the Federal Sentencing Guidelines, primarily due to disagreements regarding the quantity of crack attributable to the Defendant. Id. Ex. C.

         The pre-sentence investigation report (“PSR”) recommended the following answer to this disputed question:

This officer found that the preponderance of the evidence supports that in excess of 1.5 kilograms of cocaine base, crack, was distributed during the period of the charged conspiracy. Surveillance and taped conversations of the conspirators support a finding that crack was sold 24 hours a day, seven days per week, and that a conservative estimate is 15 to 20 sales per half hour. Based upon a conservative estimate of 30 sales per hour of .1 gram of crack per sale, the amount sold over the period of the conspiracy results in over 10 kilograms of crack. This position is further supported by the fact that the co-conspirators sold 61 grams of crack to the undercover officer within 15 purchases during this period. In addition, the defendants own post arrest statements reflect that he estimates drug proceeds of $15, 000 to $20, 000 per day during this period. This would translate into sales of 150 grams per day, or over 22 kilograms during the charged conspiracy. Therefore, the base offense is level 38.

[180] at 3-4.

         A. Defendant's Sentencing

         After the PSR was submitted, Judge George M. Marovich presided over a two-day sentencing hearing. At that hearing the government presented witnesses who testified, inter alia, that undercover police officers and an informant purchased 61.78 grams of cocaine (the vast majority of which was crack) from Defendant's organization and that over a seven-month period Defendant's organization sold user-quantities of crack at four locations twenty-four hours a day, sometimes servicing as many as thirty buyers an hour. Id. Ex. D.

         After hearing the testimony and the parties' arguments, Judge Marovich first noted that Defendant's lawyer had conceded that there were at least fifty grams of crack involved in the conspiracy. Id. Ex. C at 24. The Court further stated that it was convinced that the cocaine sold during the undercover investigation was primarily crack (as opposed to powder cocaine). Id. Judge Marovich's determination was based upon the laboratory reports and the testimony of the police officers who handled the contraband. Id. at 24-25.

         Judge Marovich then announced an appropriate mathematical formula designed to determine the amount of crack for which Defendant should be held criminally accountable, based upon the evidence adduced at the sentencing hearing. Id. at 27-28. Judge Marovich's calculus differed from the formulas proffered by both the government and pretrial services. Id. The Court first divided the total amount of crack obtained during the course of the undercover investigation (approximately 61 grams) by the total number of undercover sales (15), and found that the average amount of crack per sale was four grams. Id. at 27. The Court then, based upon the testimony given at the sentencing hearing, observed that there were at least three to four people selling crack at any given time, and that up to thirty sales were accomplished per hour. Id. at 27-28.

         Recognizing that his task implicated “some conclusions and some extrapolations, ” Judge Marovich reduced the number of grams per sale from four to two, the number of buyers per hour from thirty to fifteen, and the number of selling points from four to two. Id. at 26, 28. In his formula, Judge Marovich then cut the amount of hours that crack was being sold from twenty-four hours per day to twelve. Id. at 28. Ultimately, under his rubric, Judge Marovich concluded that, based upon the evidence adduced at Defendant's sentencing hearing, Defendant's organization sold 144 kilograms grams of crack (2 grams per sale x 15 sales per hour x 2 selling points x 12 hours per day x 200 days of operation) during the period of the charged conspiracy. Id.

         In light of these calculations, Judge Marovich made the following findings of fact at sentencing:

So, I feel to come to the conclusion that we are dealing with 1.5 kilograms, at least, is a very conservative conclusion and by my math has a fudge factor of about times ten[1] and by the government's factor about times three or four, and therefore, it is my finding based upon the preponderance of the evidence that the amount of cocaine attributable to Mr. Watketa Valenzuela is at least 1.5 kilograms of crack cocaine.

Id. The Court limited its ruling to “at least” 1.5 kilograms because at the time of Defendant's sentencing, that was the amount of crack required to reach a base offense level of 38 under the Federal Sentencing Guidelines. Id.

         The Court then increased Defendant's base offense level of 38 by 5 (due to Defendant's leadership role and the fact that Defendant's offense involved the use of minors), for a total offense level of 43. Id. The Court reduced that figure by 2, to 41, to reflect Defendant's acceptance of responsibility. Id. at 28-30. The Court further found that Defendant's prior conduct merited a Criminal History Category of III. Id. at 28-30. With a combined offense level of 41 and a Criminal History Category of III, the Court determined that Defendant's ...


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