USA v. Jose Vasquez

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. William J. Bauer, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Michael S. Kanne, Circuit Judge. [6817115-1] [6817115] [16-2404]

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Argued January 24, 2017
Decided February 7, 2017
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 16-2404
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

Appeal from the United States District
Court for Northern District of Illinois,
Eastern Division.

v.
No. 14 CR 542-3
JOSE VASQUEZ,
Defendant-Appellant.

Samuel Der-Yeghiayan,
Judge.
ORDER

Jose Vasquez pled guilty to distributing heroin, 21 U.S.C. § 841(a)(1), and
admitted to dealing 187 grams of it. In calculating his guideline sentence, the district
court found that Vasquez had also distributed a kilogram of cocaine and another
150 grams of heroin. Vasquez appeals his sentence and argues that the district court had
insufficient evidence to attribute these unadmitted drug weights to him because during
intercepted phone conversations, on which the court relied, Vasquez never used the
words “cocaine” or “heroin.” But an FBI agent, relying on context and experience, gave
an unrebutted sworn statement that Vasquez was discussing cocaine and heroin during

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these phone calls. Because the agent’s statement is sufficient evidence to support the
district court’s drug-weight findings, we affirm Vasquez’s sentence.
After the government intercepted several phone calls between Vasquez and his
co-conspirator Juan Moyano in 2013, Vasquez pled guilty to distributing heroin, a
violation of 21 U.S.C. § 841(a)(1). In a plea declaration, he admitted responsibility for
distributing, or possessing with intent to distribute, heroin on three occasions in 2013:
July 18 (100 grams), August 29 (6.4 grams), and September 30 (80.6 grams)—for a total of
187 grams. Vasquez conceded that this drug weight resulted in a base offense level of 24.
In the presentence investigation report, a probation officer concluded that, in
addition to the heroin (187 grams) to which Vasquez admitted, he also was responsible
for cocaine (1 kilogram) and additional heroin (150 grams). The officer relied on a
government memo summarizing an FBI agent’s sworn interpretation of two intercepted
conversations between Vasquez and Moyano. That agent relied on “the contents and
context of the recorded conversations, [his] knowledge of the investigation as a whole,
[his] experience and training, and the experience and training of other [agents] in this
investigation.” The agent’s interpretations of the words in these two conversations
appear below in brackets.
The first conversation occurred during a phone call on July 14. Vasquez asked
Moyano if he had any “cabbage [cocaine].” After Moyano confirmed that he didn’t,
Vasquez said “I have a whole one [kilogram of cocaine].” Moyano said “I need to get the
real [uncut cocaine].” Moyano asked for the “number [price].” Vasquez responded “9
times 4 is 36 [$36,000].” After some equivocation, Moyano said “bring me la mita [1/2
kilogram of cocaine].” The government interpreted this conversation to mean that
Vasquez told Moyano that he had a kilogram of cocaine available for $36,000.
The second conversation occurred on August 1. Vasquez called Moyano and asked
him to “[L]ook around and get 40 or 50 [grams of heroin].” Moyano responded, “I
thought you had 50,” prompting Vasquez to say, “That’s already redone [Vasquez had
already cut that heroin with unknown additives].” In addition to these 50 grams of
heroin, Vasquez also asked for “a dollar [100 grams of heroin].” Moyano said “I called
the other guy [unknown supplier] and it is at 70 [$70 per gram of heroin].” The two
agreed to talk later that day, and hours later Moyano sent Vasquez a text saying, “That’s
all u need papi we call tomorrow [they would do the deal the following day].” The
probation officer noted that, although Vasquez never said “heroin,” one could infer that
he was discussing heroin because the unit of measurement was grams, not ounces, and
the pricing was consistent with the price of heroin in Chicago at that time.

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Based on this evidence, the district court calculated the guidelines range as follows.
The total drug weight—the admitted amounts of heroin plus the cocaine and heroin
from the two conversations—converted under U.S.S.G. § 2D1.1 to a marijuana
equivalent of 537 kilograms. This quantity produced a base offense level of 26. After a
3-level downward adjustment for acceptance of responsibility, the total offense level was
23. When combined with Vasquez’s criminal history category of VI, the guideline
sentence was 92 to 115 months. If either the kilogram of cocaine or 150 grams of heroin
were not attributed to Vasquez, his total offense level (after the 3-level reduction) would
have been 21, instead of 23. The corresponding guideline sentence would have been
15–19 months shorter.
The district court overruled Vasquez’s objection that the government had not proven
these unadmitted drug quantities by a preponderance of the evidence. Vasquez noted
that during the two phone calls he never mentioned heroin explicitly, and he suggested
that in the drug trade the term “cabbage” could mean money or marijuana rather than
cocaine. He concluded that the total offense level should be 21. The district court
disagreed. Looking at “the totality of all the conversations and all the transactions,” it
found that the government had proven the drug quantities by a preponderance of
evidence, and it adopted the probation officer’s guideline-sentence calculation. The
court sentenced Vasquez to 92 months’ imprisonment followed by 6 years’ supervised
release.
On appeal Vasquez argues that the district court clearly erred in finding him
responsible for the unadmitted drug quantities—the additional 150 grams of heroin and
kilogram of cocaine—without sufficient reliable evidence.
We review for clear error the district court’s finding that the drug weights are
supported by a preponderance of the evidence. See United States v. Brown, 822 F.3d 966,
976 (7th Cir. 2016), cert. denied, 137 S. Ct. 248 (2016); United States v. Artley, 489 F.3d 813,
821 (7th Cir. 2007). To determine drug weight, the district court may rely on information
reflected in the presentence report if it is reliable. U.S.S.G. § 6A1.3(a); United States v.
Garrett, 757 F.3d 560, 572 (7th Cir. 2014); United States v. Noble, 246 F.3d 946, 951–52
(7th Cir. 2001). When challenging information from the report, the defendant bears the
burden of proving unreliability. United States v. Rollins, 544 F.3d 820, 838 (7th Cir. 2008);
Artley, 489 F.3d at 821. Information that is only a “naked or unsupported charge” is
unreliable. United States v. Moreno-Padilla, 602 F.3d 802, 808–09 (7th Cir. 2010);
see also United States v. Vold, 66 F.3d 915, 920 n.3 (7th Cir. 1995).
Reliable, corroborated, and uncontested information reflected in the presentence
report supports the district court’s finding that Vasquez sold 150 grams of heroin during

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the August call. Although heroin was not mentioned explicitly during that phone call,
the government offered an FBI agent’s sworn interpretation of the conversation. Based
on the context of the discussion and the agent’s training and experience, the agent
opined that Vasquez was selling 150 grams of heroin. The probation officer confirmed
the reliability of that view. The officer explained that the unit of measurement (grams)
and the per-unit pricing ($70 per gram) discussed in the phone call were consistent with
the current street price of heroin; therefore the discussion supported an inference that
the conversation was about heroin and no other drug. Vasquez offered no evidence to
dispute the reliability of this inference. The district court did not clearly err by finding
that Vasquez dealt 150 grams of heroin during the August call.
The presentence report also contains reliable and unrebutted information supporting
the district court’s cocaine finding. Vasquez disputes the conclusion that the July phone
call—discussing a “whole one” of “cabbage”—was really about a kilogram of cocaine.
Unlike the evidence supporting the heroin finding, the agent’s interpretation was not
corroborated by a unit-of-measurement or per-unit price. The government did argue at
sentencing that the price referred to in the phone call ($36,000) was the market price for a
kilogram of cocaine. But that argument itself is not evidence. See United States v. Stevens,
500 F.3d 625, 628–29 (7th Cir. 2007). The government could have but did not offer
testimony from witnesses to establish the price for cocaine. See United States v. Betts,
576 F.3d 738, 742–43 (7th Cir. 2009); United States v. Hankton, 432 F.3d 779, 790–91 (7th
Cir. 2005). Instead, the government provided a call transcript, an FBI agent’s sworn
interpretation that a whole cabbage was code for a kilogram of cocaine, and the agent’s
explanation for that interpretation—context and his experience. The call transcript and
the agent’s sworn, explained interpretation supply a preponderance of reliable evidence.
See United States v. Clark, 538 F.3d 803, 812–14 (7th Cir. 2008) (deciding that complaint
affidavit was reliable evidence); United States v. Abdulahi, 523 F.3d 757, 761 (7th Cir. 2008)
(concluding that drug ledger, FBI agent’s report, and detailed explanation of report’s
conclusion were reliable evidence of drug-weight). Vasquez offered no evidence to
contradict the agent’s interpretation. The district court did not clearly err in finding
Vasquez responsible for the kilogram of cocaine.
AFFIRMED.