United States of America v. Lazaro Medina

In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐1930
U NITED STATES OF A MERICA,
Plaintiff‐Appellee,
v.
LAZARO MEDINA,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09‐cr‐00994 — Elaine E. Bucklo, Judge.
A RGUED D ECEMBER 3, 2012 — D ECIDED A UGUST 27, 2013
Before WOOD and HAMILTON, Circuit Judges, and D ARROW,
District Judge.*
D ARROW, District Judge. Lazaro Medina appeals the sen‐
tence he received after pleading guilty to conspiracy to
distribute cocaine and possession of cocaine with intent to
distribute. Medina challenges the district court’s drug quantity
* Of the Central District of Illinois, sitting by designation.

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2 No. 12‐1930
calculation at sentencing, arguing that the court should have
required proof of drug quantity beyond a reasonable doubt
rather than by a preponderance of the evidence. Medina also
maintains that, even if the preponderance‐of‐the‐evidence
standard applies, it was not met in his case because the
evidence supporting the district court’s drug quantity finding
was unreliable. We reject both arguments and affirm Medina’s
sentence.
I. Background
In 2007, law enforcement began investigating brothers
Mario Melendez (“Melendez”) and Abel Cadena‐Melendez
(“Cadena‐Melendez”) for their involvement in a drug traffick‐
ing organization operating out of the Little Marketa General
Store in Plano, Illinois. Government agents obtained a wiretap
and conducted surveillance of Melendez’s store and home. The
trail soon led to Lazaro Medina, who was fronting cocaine to
the Melendez brothers. Telephone and physical surveillance
confirmed the negotiation and subsequent delivery of one
kilogram of cocaine by Medina to Melendez in August of 2008.
Medina was charged by criminal complaint with conspiring to
distribute cocaine on December 9, 2009, and was arrested at his
home the next day. During a subsequent search of Medina’s
garage, agents discovered 9.5 kilograms of cocaine, packaging
materials, $124,124 in cash, and $51,890 worth of jewelry.
On February 3, 2010, a grand jury returned a five‐count
indictment charging Medina with, among other things,
conspiracy to distribute cocaine (Count One) and possession of
cocaine with intent to distribute (Count Three) in violation of
21 U.S.C. § 841(a)(1) and § 846. Medina pleaded guilty to

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No. 12‐1930 3
Counts One and Three of the indictment on September 28,
2010, without a written plea agreement. At the change of plea
hearing, government counsel summarized the evidence to
establish a factual basis for Medina’s plea. The government
stated that between approximately 2001 and December 2009,
Medina supplied kilogram quantities of cocaine to Melendez
and Cadena‐Melendez on a regular basis without receiving
immediate payment. The government also detailed Medina’s
delivery of a kilogram of cocaine to Melendez on August 18,
2008, as well as the 9.5 kilograms of cocaine found in Medina’s
garage. Following the summary of the evidence, the district
judge asked Medina, “Have you heard the statement of the
Assistant United States Attorney?” to which Medina re‐
sponded, “Yes.” When asked by the court whether the govern‐
ment’s statement was “true,” Medina said, “Yes.” The court
then asked Medina to summarize what he did, to which
Medina responded, “I had that substance to sell, yes … . That
substance was cocaine.” The court then accepted Medina’s plea
of guilty. 1 A few months later, on April 4, 2011, Medina
provided a safety valve interview to the government under 18
U.S.C. § 3553(f) in an effort to obtain relief from the ten‐year
mandatory minimum sentence. In that interview, however,
Medina claimed that he did not begin supplying Melendez
1 On May 11, 2011, Medina filed a written motion to withdraw his guilty
plea on the grounds that Medina’s former attorney had never reviewed the
consequences of a blind plea with him, and that Medina did not speak
sufficient English to understand the charges to which he pleaded guilty.
Following an evidentiary hearing, the district court denied the motion,
finding that Medina had understood the charges against him and had
voluntarily entered his guilty plea.

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4 No. 12‐1930
with cocaine until January or February of 2009, and that he
never provided Melendez with kilogram quantities.
In Medina’s Presentence Investigation Report (“PSR”), the
probation officer determined that Medina was responsible for
at least 67.5 kilograms of cocaine, a calculation supported by
two post‐arrest statements made by Melendez that detailed a
history of prior dealing with Medina going back to 2001.
Medina objected to the PSR, claiming that only the cocaine
seized during the course of the investigation should be
attributed to him. According to Medina, that cocaine (9.5
kilograms from his garage, two 1‐ounce controlled buys, 249
grams seized from a codefendant’s vehicle, and 208 grams
found in the Little Marketa store) placed him in the 5–15
kilogram range.
In a supplemental sentencing memorandum, the govern‐
ment provided further detail regarding Melendez’s statements.
In Melendez’s first post‐arrest statement he admitted that
Medina began supplying cocaine to him after they met at a
party in 2001. Medina started out fronting Melendez one‐
quarter kilogram quantities of cocaine, but it soon picked up
such that from 2001 to 2006, Medina was supplying Melendez
with one kilogram every four to six weeks. Between 2006 and
2009, Melendez stated that the frequency decreased to one
kilogram every six to eight weeks, and estimated that he had
received ten kilos from Medina since 2006. The government
therefore argued that Medina should be held responsible for
70.5 kilograms: 40 kilograms from 2001 to 2006, 21 kilograms
from 2006 to 2009, and the 9.5 kilograms seized from Medina’s
garage.

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No. 12‐1930 5
In Melendez’s second statement, given pursuant to a safety
valve interview on January 24, 2011, his story changed some‐
what. Melendez said that after he met Medina in 2001, Medina
began fronting him one‐quarter kilograms every month for six
months; after six months, Melendez received one‐half kilo‐
grams every month for another six months. In 2002 or 2003,
Medina started fronting Melendez one kilogram of cocaine
every six to eight weeks. In 2005, the frequency dropped to one
kilogram every two months, and in 2007 Medina went back to
fronting one‐quarter kilogram quantities. Based on Melendez’s
second statement, the government’s estimate dropped to 52.5
kilograms: 4.5 kilos in the first year of dealing, 32.5 kilos from
2002 to 2007, and the 9.5 kilograms seized. Accordingly, based
on Melendez’s statements and the cocaine seized from Medina,
the government took the position at sentencing that Medina
was accountable for more than 50 kilograms of cocaine.
At the sentencing hearing, the government affirmed that its
position regarding Medina’s drug quantity calculation was
based mostly on Melendez’s statements. Although Melendez
did not testify at the hearing, the government argued that his
prior statements were reliable because they were made against
interest and were corroborated by evidence gathered during
the course of the investigation. Medina argued that the
statements were not made against interest. Further, Medina
challenged the court’s reliance on Melendez’s statements
because the court did not have the opportunity to judge his
credibility firsthand. After hearing argument, the district court
placed Medina in the 15–50 kilogram range, stating:
It’s going to be 15 to 50. If he’s wrong because
it’s—the difference there admittedly on your conser‐

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6 No. 12‐1930
vative estimate is two and a half kilograms, but he’s
found in his garage with 9.5 kilograms? People don’t
have 9.5 kilograms of cocaine sitting around who
aren’t big dealers, let alone the hundred and some
thousand dollars in jewelry and whatever else there
was. All right. It may be awfully conservative, but
he’ll get the benefit of the doubt. It’s between 15 and
50 kilograms.
I do believe that Mr. Melendez’s statements are so
against his own interests that they can be believed in
terms of general substance. What bothers me in
saying it’s over 52.5 is we are talking about going
back a long time and remembering exactly how
much it would be every month or how often. So I
am more comfortable in saying that it is someplace
50 or below, but I’m sure it’s well over the 15.
Based on this drug quantity finding, Medina’s base offense
level was 34. After including a two‐level enhancement for
obstruction of justice, and denying Medina credit for accep‐
tance of responsibility under U.S.S.G. § 3E1.1, the court found
that Medina had an advisory Sentencing Guidelines range of
188–235 months. Following additional argument from the
parties concerning application of the Guidelines factors set out
in 18 U.S.C. § 3553(a), the court imposed a sentence of 190
months imprisonment on Counts One and Three of the
indictment and five years of supervised release. This appeal
followed.

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No. 12‐1930 7
II. Discussion
Medina raises two issues on appeal. He first argues that
proof of drug quantity, for purposes of determining relevant
conduct at sentencing, should be proved beyond a reasonable
doubt instead of by a preponderance of the evidence. His
second argument is that, even under the preponderance‐
of‐the‐evidence standard, the district court erred by basing its
drug quantity finding on Melendez’s unreliable statements. We
address each argument in turn.
A. Standard for Proving Drug Quantity at Sentencing
We can easily dispose of Medina’s first argument. Medina
asserts that the district court should have required that drug
quantity be proved beyond a reasonable doubt for purposes of
determining relevant conduct at sentencing. Anything less,
Medina claims, impinges upon his due process rights by
allowing the judge’s findings at sentencing to disproportion‐
ately increase his sentence relative to the evidence supporting
the underlying offense. We have previously disavowed this
argument and do so again here, as it is well‐established that a
preponderance of the evidence is all that is required for a
factual finding of drug quantity under the Sentencing Guide‐
lines, due process concerns notwithstanding. See United States
v. Johnson, 342 F.3d 731, 735 (7th Cir. 2003); United States v.
Reuter, 463 F.3d 792, 793 (7th Cir. 2006). In any event, Medina
raised this point to preserve it for appeal, and we will move on.
B. The District Court’s Drug Quantity Finding
Medina’s second argument is that the district judge’s drug
quantity determination was not supported by even a prepond‐

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8 No. 12‐1930
erance of the evidence. We review a district court’s factual
finding of drug quantity for clear error and will reverse “only
if, after reviewing the entire evidence, we are left with the
definite and firm conviction that a mistake has been made.”
United States v. Hankton, 432 F.3d 779, 789 (7th Cir. 2005)
(citations and quotes omitted). To prove drug quantity by a
preponderance of the evidence, the government must show
that it was more likely than not that Medina possessed the
15–50 kilograms of cocaine upon which his sentence was
based. United States v. Breland, 356 F.3d 787, 795 (7th Cir. 2004).
In making its drug quantity finding, the district court is not
limited to evidence admissible at trial, but it must base its
sentence on information with “sufficient indicia of reliability to
support its probable accuracy,” United States v. Longstreet, 567
F.3d 911, 924 (7th Cir. 2009).
In this case, for purposes of determining Medina’s offense
level, the district court based its drug quantity finding on two
statements made by Melendez that were contained in Medina’s
PSR. Before addressing whether the district court improperly
relied on Melendez’s statements, some context is appropriate.
Even without taking into account the drugs that Melendez
attributed to him, Medina was looking down the barrel of 10.5
kilograms of cocaine: 9.5 kilograms from his garage plus the 1
kilogram he admitted to in his plea agreement (not to mention
the $124,124 in cash, which translates to about 5 kilograms, but
the government did not make a cash‐to‐drugs conversion
argument). The point is that getting Medina over the 15
kilogram hurdle did not require much: all the district judge
needed to find was an extra 4.5 kilograms. The question is
therefore whether the judge clearly erred in relying on

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No. 12‐1930 9
Melendez’s testimony to increase Medina’s drug quantity from
10.5 kilograms to 15.
Medina claims that the district court erred by relying on
Melendez’s statements because they were self‐serving and
therefore inherently unreliable. According to Medina, Melend‐
ez was actually getting his drugs from sources that included
the Arellano‐Felix cartel, and when Melendez got caught he
decided to finger Medina rather than risk reprisals from the
cartel. Medina claims that Melendez’s statements were not
against interest because they shielded him from the cartel’s
retribution. But Medina overstates the role of the Arellano‐Fel‐
ix cartel in Melendez’s drug operation (the cartel’s involvement
was minimal) and understates the damaging nature of
Melendez’s admissions. The police only seized about half a
kilogram from Melendez over the course of two years, yet
Melendez admitted to receiving between approximately 40 and
60 kilograms of cocaine since 2001. It was certainly against
Melendez’s penal interest to admit to about 100 times as much
cocaine as law enforcement seized from him. Accordingly, we
find no error in the district court’s determination that
Melendez’s statements were sufficiently against interest that
they could be believed in terms of general substance.
Medina also claims that the district court’s reliance on
Melendez was in error due to the court’s inability to judge
Melendez’s credibility firsthand. While it is true that the court
and counsel lacked the opportunity to examine Melendez in
person (since Melendez’s statements were contained in Me‐
dina’s PSR, and Melendez refused to testify), Melendez’s
admissions were corroborated by ample evidence that affirms
their reliability. First and foremost is the 9.5 kilograms of

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10 No. 12‐1930
cocaine found in Medina’s garage, which lends credence to
Melendez’s statements and belies Medina’s contention at
sentencing that he had distributed no more than about one
kilogram of cocaine to Melendez through all of 2008 and 2009.
On top of that was the $124,124 in cash (which equals about 5
kilograms of cocaine) and $51,890 worth of jewelry, which
further corroborates Melendez’s admissions as to the breadth
and scope of the conspiracy. Medina essentially asks us to
pretend that these drugs, money, and jewelry shed no light on
whether Medina did in fact deal more than 4.5 kilograms of
cocaine to Melendez. But of course they do bear on that
question, and the district court appropriately considered them.
As the district judge noted, small time dealers do not keep
nearly ten kilograms of cocaine on hand, much less cash and
jewelry worth about $175,000. District courts may reasonably
estimate the quantity of drugs attributable to a defendant,
United States v. Acosta, 534 F.3d 574, 582 (7th Cir. 2008), and
given this evidence there was nothing unreasonable about the
district court’s cautious reliance on Melendez’s testimony in
order to estimate Medina’s drug quantity.
For these reasons, we find no error on the part of the district
judge, who adequately considered the potential pitfalls raised
by relying on Melendez’s testimony and adopted a conserva‐
tive estimate of drug quantity that was supported by the
evidence. There was no improper speculation or “nebulous
eyeballing” going on here, see United States v. Jarrett, 133 F.3d
519, 530 (7th Cir. 1998), only reasonable estimations and
inferences. Because the district court’s drug quantity calcula‐
tion was supported by a preponderance of the evidence, we
affirm.

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No. 12‐1930 11
III. Conclusion
The judgment of the district court is AFFIRMED.

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