United States of America v. Salvador Guerrero-Martinez

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2444
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SALVADOR GUERRERO-MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 480--James F. Holderman, Judge.
Argued November 30, 2000--Decided February 15, 2001
Before FLAUM, Chief Judge, EASTERBROOK and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. Salvador Guerrero-
Martinez pled guilty to one count of possession
with intent to distribute in excess of 100
kilograms of marijuana in violation of 21 U.S.C.
sec. 841(a)(1) and 18 U.S.C. sec. 2. On appeal,
he maintains that the district court clearly
erred when it sentenced him based on a greater
quantity of marijuana than he actually purchased
without also finding that this larger amount was
part of jointly undertaken criminal activity.
Because we find that the district court properly
sentenced him for aiding and abetting the
delivery of a larger shipment, we affirm.
I.
In June 1999, federal drug enforcement
authorities in Nebraska notified their
counterparts in Chicago that they were en route
to Chicago with a person who was cooperating in
a controlled delivery of a large quantity of
marijuana. The cooperating individual, who
eventually rescinded his cooperation, was Pedro
Guerrero. According to the Nebraska agents who
interviewed him, Guerrero had made previous trips
to Chicago carrying marijuana. On this occasion,
he was to meet Guerrero-Martinez on his arrival,
and Guerrero-Martinez was to pay him $20,000 or
$25,000 in cash for the shipment. Based on

-- 1 of 7 --

previous deliveries, Guerrero expected to
communicate with Guerrero-Martinez via telephone
while he was en route, and planned to meet him at
a warehouse where the exchange would take place.
In preparation for the controlled delivery, the
agents inventoried the contents of Guerrero’s
truck, counting fifteen boxes of marijuana, with
each box containing approximately one hundred
pounds of the drug.
The agents set up surveillance at the warehouse
site where the delivery was to occur. As Guerrero
was en route to Chicago, the agents recorded a
number of phone calls between Guerrero and
Guerrero-Martinez, including one in which
Guerrero-Martinez directed Guerrero to deliver
the marijuana to the warehouse the following day,
July 1, 1999. Guerrero-Martinez instructed
Guerrero to deliver the load during normal
business hours so as not to draw attention to the
delivery. At the appointed time, the agents
observed Guerrero’s marijuana-laden truck pull up
to the warehouse to meet Guerrero-Martinez. Also
in the parking lot was a white van, and Guerrero-
Martinez watched as eleven of the fifteen boxes
were loaded into the van by Guererro and by the
van’s driver, Victor Davis. Guerrero-Martinez
moved his car in closer to the truck so that he
could load two of the boxes into the car he was
driving. As he walked to his car to deposit his
two boxes, the agents on the scene arrested him.
The government later learned that, prior to
this delivery, Guerrero-Martinez had met with
Alcario Sanchez and a man identified as "Mario"
at a restaurant to discuss preparations for the
delivery. At this meeting, Guerrero-Martinez
agreed to meet the truck at a warehouse, and
agreed to deliver a carload of marijuana to
Sanchez, who was going to sell the drugs to
another individual. On the day of the delivery,
Guerrero-Martinez drove Sanchez’s car to the
warehouse parking lot and helped unload the
marijuana from the truck.
The government also learned that this was at
least the second such transaction that Guerrero-
Martinez had engaged in with the same suppliers.
A few months earlier, Guerrero-Martinez had met
Sanchez and Mario at a different restaurant to
discuss another delivery. At that meeting, the
men discussed where the load would be delivered,
who was delivering the marijuana and who would be
receiving the load. They also discussed a
potential buyer for a portion of the load, and
Guerrero-Martinez agreed to purchase two hundred
pounds of the marijuana. He also agreed to meet
the truck at a warehouse to pick up his share. As
he did with the second load, Guerrero-Martinez
agreed to use Sanchez’s car to pick up his share.

-- 2 of 7 --

He coordinated the delivery via telephone, and
picked up his two boxes. He saw that the truck
contained other boxes, but the government was
unable to determine with certainty how much
marijuana was in the first load or to what extent
Guerrero-Martinez participated in the first
delivery. After picking up the two boxes from the
first delivery, Guerrero-Martinez met Sanchez
with the car and returned the keys. Sanchez took
the two hundred pounds to sell as they had
discussed at the restaurant, and Guerrero-
Martinez told him to return the money to Mario
who would then pay Guerrero-Martinez. Guerrero-
Martinez did not pay for the drugs prior to the
delivery to Sanchez. Rather, the drugs were
provided to him on credit. Two weeks later, as
they had previously agreed, Sanchez and Mario
paid Guerrero-Martinez $5500, his share of the
profits for the two hundred pound load he
purchased on credit. The second delivery was to
work the same way, but law enforcement intervened
and Guerrero-Martinez was arrested.
Guerrero-Martinez pled guilty to one count of
possession with intent to deliver in excess of
100 kilograms of marijuana, in violation of 21
U.S.C. sec. 841(a)(1), and aiding and abetting
possession of that same 100 kilograms, in
violation of 18 U.S.C. sec. 2. The government
sought to hold Guerrero-Martinez responsible for
the entire quantity of marijuana in both the
first and second shipments. Guerrero-Martinez
objected, insisting that he could only be held
liable for the 400 pounds he actually purchased
unless the government proved that more than that
amount was within the scope of his jointly
undertaken criminal activity. The district court
held a hearing to determine the appropriate
quantity of drugs under Sentencing Guideline
1B1.3, commonly known as the relevant conduct
provision. After hearing testimony from Guerrero-
Martinez himself as well as government agents who
participated in the controlled delivery, the
district court found that, for the first
delivery, Guerrero-Martinez was liable only for
the amount he purchased, approximately two
hundred pounds, because the government did not
have evidence regarding the circumstances of the
delivery or the total quantity contained in the
truck. For the second delivery, the court found
that Guerrero-Martinez should be held liable for
the entire amount of the shipment, approximately
1533 pounds of marijuana:
With regard to the second load, the second
delivery, we do have information regarding the
circumstances of that delivery, and Mr. Guerrero-
Martinez, in addition to knowing that he was
receiving supplies from a supplier that was
supplying others, did not operate independently

-- 3 of 7 --

of other purchasers, but, in fact, went to the
location of the delivery, participated in the
delivery to the extent that he remained and
observed the delivery to others, and so it was
foreseeable to him, and he was aware then of the
conspiracy greater than his own, rather than the
circumstances in Footnote 6 in which there is
some--at least some knowledge on the part of each
purchaser--or each seller of the street level
sales of drugs that there are others, drug
dealers in the same location, who sell the same
type of drugs.
Here Mr. Guerrero-Martinez actively joined the
delivery process of others by standing by and by
going to the location at the prescribed time and
becoming aware of the fact that there was
additional marijuana being delivered to others
beyond what otherwise would be considered
operating independently.
And so accepting Mr. Guerrero-Martinez’s
testimony, and relying upon it as my sole basis
for determining the drug quantity that was
foreseeable, I believe the entire shipment of the
second delivery was foreseeable to Mr. Guerrero-
Martinez.
Tr. at 144-45. The court determined that, based
on the total quantity of 1736 pounds (203 pounds
from the first delivery and 1533 from the
second), Guerrero-Martinez’s base offense level
would be 30. After adjustments, his offense level
was 25, and the sentencing range was 57 to 71
months of incarceration. The court sentenced
Guerrero-Martinez to 57 months of incarceration,
and he appeals.
II.
On appeal, Guerrero-Martinez contends that the
government did not meet its burden of
establishing the quantity of drugs attributable
to him by a preponderance of the evidence. He
admits that he agreed to purchase 200 pounds of
marijuana on two separate occasions. He also
concedes that he knew the trucks contained
marijuana for other buyers. However, he maintains
that he did not know how much marijuana the
trucks held, did not know who the other buyers
were, and did not know the price anyone else was
paying. He argues that Section 1B1.3 requires
more before he may be held liable beyond the 400
pounds he agreed to purchase. Section 1B1.3
requires the court to find that the additional
amounts were reasonably foreseeable to the
defendant, and that he took acts in furtherance
of jointly undertaken criminal activity,
according to Guerrero-Martinez. He claims he was
merely a retail dealer of the 400 pounds he

-- 4 of 7 --

purchased from a wholesaler, and that the
government presented no evidence on the scope of
any jointly undertaken criminal activity.
We review the district court’s sentencing
determinations with great deference, reversing
only for clear error. United States v.
Berthiaume, 233 F.3d 1000, 1002 (7th Cir. 2000).
This standard applies to the calculation of drug
quantities. Id. A reviewing court may reverse a
district court’s sentencing conclusion only if
after reviewing the record, it is left with the
firm and definite conviction that a mistake has
been made. Id. The district court calculated the
amount of drugs attributable to Guerrero-Martinez
under Section 1B1.3 of the Sentencing Guidelines,
the provision that determines the Guideline range
for relevant conduct. That section provides, in
relevant part, that the base offense level and
certain adjustments shall be determined on the
basis of the following:
(1) (A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured,
or wilfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert
with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and
omissions of others in furtherance of the jointly
undertaken criminal activity,
that occurred during the commission of the
offense of conviction, in preparation for that
offense, or in the course of attempting to avoid
detection or responsibility for that offense.
U.S.S.G. sec. 1B1.3. Guerrero-Martinez claims
that neither part (A) nor part (B) apply to him
because he agreed only to purchase particular
amounts, and did nothing to aid the sales to
anyone else. Moreover, he claims that he had no
idea how much marijuana was on the truck in the
second shipment, and could not reasonably foresee
that it contained 1500 pounds of marijuana.
As we noted, the district court found that the
full amount of the second shipment was
foreseeable to Guerrero-Martinez, and also that
he aided in the delivery of that shipment. Under
the aiding and abetting theory, the district
court may hold a defendant liable if he aided his
principal to commit a crime, and also wanted the
principal to succeed in committing it. United
States v. Ortega, 44 F.3d 505, 507 (7th Cir.
1995). Here, Guerrero-Martinez met with Mario and
Sanchez ahead of time, and was aware that the
marijuana he agreed to buy was just a part of the

-- 5 of 7 --

total shipment. Guerrero-Martinez also spoke with
the driver of the truck to arrange the delivery,
met the truck at the prearranged destination and
watched over the unloading of not only his own
boxes but boxes being placed into a van belonging
to another buyer. The court found that Guerrero-
Martinez participated in the delivery of
marijuana not just to himself but to others who
were present as he oversaw the unloading of the
truck. This is sufficient for aiding and
abetting. See United States v. Magana, 118 F.3d
1173, 1206 (7th Cir. 1997), cert. denied, 522
U.S. 1139 (1998) (finding aiding and abetting
liability when defendant allowed his car, which
had a secret compartment, to be used to transport
cocaine); Ortega, 44 F.3d at 507 (defendant aided
and abetted sale of heroin by pointing out
location of bag of heroin in van, and by watching
over van).
That Guerrero-Martinez was integral to the
entire delivery, and not just the delivery of the
amount he purchased, was brought out in his
direct testimony regarding the first delivery.
Guerrero-Martinez testified that he was buying
200 pounds of marijuana on credit, and that he
merely picked up the marijuana from the agreed
delivery site, and immediately drove it to
Sanchez and Mario, who had already arranged for
another buyer. Tr. at 62-63. Sanchez and Mario
then paid him $5500 in profits from the resale of
the amount he bought on credit. Tr. at 61. The
second deal was to work the same way, where the
marijuana would be fronted to Guerrero-Martinez,
whose only responsibility was to meet the truck,
take delivery and transport the drugs to Sanchez
and Mario. Guerrero-Martinez wondered aloud at
the sentencing hearing:
I don’t know what was going on with them, but
they were just using me, because now--now that
all this has happened to me, what was the reason
that these two people were using me? They were
only going to sell me two boxes, and they were
going to sell them, themselves, . . . giving me
the profits. They were just using me, you know,
because of all of this that has happened to me.
I think that’s what they wanted to do with me.
Tr. at 62-63. Indeed, they were using him. In
hindsight, the deal sounded too good to be true
even to him. Without putting up a single dollar
of his own money, he was allowed to purchase
$100,000 worth of marijuana, and was given the
profits from the resale without so much as
locating a second buyer. All that was expected of
him was to arrange to meet the truck, oversee
delivery for himself and others, and drive away
with 200 pounds of marijuana in the trunk of his
car. Sanchez and Mario and others in the scheme

-- 6 of 7 --

used Guerrero-Martinez to physically distance
themselves from the delivery of 1500 pounds of
marijuana. They needed someone to arrange and
oversee the delivery, and Guerrero-Martinez was
that someone. He thus aided others in the
delivery of not just the 200 pounds he purchased
himself, but the entire truckload.
Because we find that Guerrero-Martinez is liable
under the aiding and abetting provision of
Section 1B1.3, we need not consider whether he
could also be held liable under the provision for
jointly undertaken criminal activity. Thus, we
need not consider whether the amount of marijuana
contained in the second truckload was reasonably
foreseeable to him. The Application Notes for
Section 1B1.3 clarify that the requirement of
reasonable foreseeability applies only to
subsection (a)(1)(B), the jointly undertaken
criminal activity provision. "It does not apply
to conduct that the defendant personally
undertakes, aids, abets, counsels, commands,
induces, procures, or wilfully causes; such
conduct is addressed under subsection (a)(1)(A)."
U.S.S.G. sec. 1B1.3, Application Note 2. We
therefore affirm the judgment of the district
court.
AFFIRMED.

-- 7 of 7 --