United States of America v. Everardo De La Cruz-Cuevas

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 29, 2008
Decided June 12, 2008
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐2877
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
EVERARDO DE LA CRUZ‐CUEVAS,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 06 CR 27
Larry J. McKinney, Judge.
O R D E R
Everardo De La Cruz‐Cuevas was charged with conspiracy to distribute in excess
of 500 grams of a mixture or substance containing methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 846, in connection with an October 28, 2006, transaction. Shortly
thereafter, his defense counsel filed an ex parte motion requesting the appointment of a
“Spanish speaking mitigation specialist” to interview several categories of people and
compile a “social history” for De La Cruz‐Cuevas. The district court (Chief Judge Larry
J. McKinney) denied the motion. De La Cruz‐Cuevas preserved his right to appeal the
decision when he entered a conditional guilty plea to the charge against him. After
accepting the plea, Judge McKinney held a sentencing hearing; he ultimately imposed a
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07-2877 Page 2
sentence of 235 months, which was within the applicable guidelines range. De La Cruz‐
Cuevas now appeals the district judge’s refusal to appoint a mitigation specialist as well
as two factual findings made at sentencing.
De La Cruz‐Cuevas first challenges the district judge’s refusal to appoint a
mitigation specialist, arguing that the decision violated his rights under the Due Process
Clause of the Fifth Amendment and the Criminal Justice Act of 1964, 18 U.S.C. § 3006A.
We review a district court’s denial of a defendant’s request for expert services for an
abuse of discretion. United States v. Smith, 502 F.3d 680, 686 (7th Cir. 2007), cert.
denied, 128 S. Ct. 1270 (2008).
Under both the Due Process Clause and the Criminal Justice Act, a defendant
requesting the appointment of an investigator (or someone like a “mitigation
specialist”) must demonstrate a necessity for the expert, not a mere possibility of
assistance. See id. (applying the Criminal Justice Act standard); Moore v. Kemp, 809
F.2d 702, 712 (11th Cir. 1987) (applying the due process standard). De La Cruz‐
Cuevas’s motion fell well short of meeting this burden. Defense counsel sought an
expert to compile a “social history” for his client by interviewing roughly twenty
categories of people. The blunderbuss request, which we quote verbatim, asked for an
expert to interview
parents, siblings, spouses or significant others, children,
other neighbors, school personnel, including teachers,
principals, guidance counselors, social workers,
psychologists, coaches, ministers or other church personnel;
employers, job supervisors and co‐workers; social service
and court personnel, including juvenile or adult
probation/parole officers; other service providers, such as
counselors; physicians or medical personnel; mental health
experts who have assessed the Defendant at any time in the
past or for purposes of the present proceeding.
This request was more than a tad over the top. It did not assert a plausible defense or a
specific mitigation factor that the expert could shed light on. Instead, the motion stated
that an expert’s services were necessary “[i]n order to effectively represent the
Defendant.” We can see no indication here that a denial of expert assistance would
result in a fundamentally unfair process.

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No. 07-2877 Page 3
On appeal, De La Cruz‐Cuevas argues that the witnesses could have supported
his claim that he only sold drugs to obtain money for his mother’s surgery (she had
been injured the previous month). But De La Cruz‐Cuevas presented‐‐and the district
judge accepted‐‐this explanation for the commission of the offense at the sentencing
hearing. Specifically, the district judge recognized that De La Cruz‐Cuevas came from
poverty and that his family was experiencing sadness due to his mother’s health but
stated that these were not the only factors to be considered. Accordingly, the district
judge did not abuse his discretion in denying the request for the appointment of a
mitigation specialist.
De La Cruz‐Cuevas also challenges two factual findings made at sentencing,
which we review for clear error. See United States v. Artley, 489 F.3d 813, 821 (7th Cir.
2007), cert. denied, 128 S. Ct. 415 (2007); United States v. Roth, 201 F.3d 888, 891 (7th Cir.
2000). First, he argues that he should not have been held accountable for over 1.5
kilograms of actual methamphetamine because only the gross weight of the drugs, and
not their purity, was alleged in the indictment. De La Cruz‐Cuevas contends that the
district judge’s finding was based on inadmissible evidence, in violation of the
Confrontation Clause and hearsay rule. However, neither the hearsay rule nor the
Confrontation Clause applies at sentencing; instead, the Due Process Clause provides
the proper framework for analysis. United States v. Roche, 415 F.3d 614, 618 (7th Cir.
2005). The sentencing guidelines add that judges may consider any evidence that has a
“sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a).
De La Cruz‐Cuevas’s presentence report stated that the methamphetamine
obtained during a transaction on October 28 weighed approximately 13 pounds and
contained over 1.5 kilograms of actual methamphetamine. But De La Cruz‐Cuevas did
not file an objection to this statement. Instead, he objected to the purity of the
methamphetamine for the first time at the sentencing hearing. In response, Detective
Dennis Holt contacted his office and obtained the precise results of the laboratory
analysis, which he jotted down on a piece of paper. He then testified that the weight of
the methamphetamine mixture was 4,924 grams, the purity level was 70 percent, and
the amount of actual methamphetamine was 3,446 grams. De La Cruz‐Cuevas contends
that this evidence is inadmissible and unreliable.
We need not even examine that evidence, however, because De La Cruz‐Cuevas
admitted at the change of plea hearing that the amount of actual methamphetamine
contained within the substance seized on October 28 weighed over 1.5 kilograms.

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No. 07-2877 Page 4
During the hearing the government presented a factual basis to support De La Cruz‐
Cuevas’s guilty plea, which included a statement of the amount of actual
methamphetamine recovered on October 28. Defense counsel disputed the
government’s allegations regarding events that occurred before October 28, but De La
Cruz‐Cuevas specifically agreed to the factual basis regarding the October 28
transaction. As a result, the district judge did not commit clear error in holding De La
Cruz‐Cuevas accountable for over 1.5 kilograms of actual methamphetamine.
Finally, De La Cruz‐Cuevas challenges the district court’s finding that he
qualified for an aggravating role adjustment under U.S.S.G. § 3B1.1 for serving as a
supervisor in the commission of criminal activity. Again, De La Cruz‐Cuevas contends
that the district judge’s finding was based on inadmissible evidence, in violation of the
Confrontation Clause and hearsay rule. As we previously noted, however, neither the
hearsay rule nor the Confrontation Clause applies at sentencing, and the Due Process
Clause provides the proper framework for analysis.
At the sentencing hearing, Detective Holt testified about his interviews with
Kenneth Rooksberry and Jorge Enrique Pasallo‐Morales. According to Holt, Pasallo‐
Morales admitted to participating with De La Cruz‐Cuevas in the October 28
transaction. Pasallo‐Morales also told Holt that De La Cruz‐Cuevas recruited him to
transport the methamphetamine to Terre Haute and directed his actions throughout the
October 28 transaction. The government corroborated these statements with facts
presented during the change of plea hearing, to which De La Cruz‐Cuevas expressed
his agreement. This evidence had “sufficient indicia of reliability to support its
probable accuracy.” Thus, the district judge did not commit clear error in finding that
De La Cruz‐Cuevas performed an aggravating role in the commission of the offense.
For the foregoing reasons, the judgment of the district court is AFFIRMED.

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