United States of America v. Carlos Gutierrez-Herrera

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-3660
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLOS GUTIERREZ-HERRERA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 739--Harry D. Leinenweber, Judge.
ARGUED April 25, 2002--DECIDED June 4, 2002
Before CUDAHY, RIPPLE, and ROVNER, Circuit
Judges.
RIPPLE, Circuit Judge. Carlos Gutierrez-
Herrera ("Gutierrez") pleaded guilty
pursuant to a written plea agreement to
one count of conspiracy to distribute
cocaine, in violation of 21 U.S.C.
secs. 846 and 841(a)(1). At sentencing
the district court found that four
kilograms of cocaine were attributable to
Mr. Gutierrez and sentenced him to 57
months’ imprisonment. Mr. Gutierrez
appeals and argues that it was error to
attribute to him more than two kilograms
of cocaine. For the reasons set forth in
the following opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A. Facts
In his written plea agreement, Mr.
Gutierrez stipulated to the following
facts. In August 2000, he told co-
defendant Marin Aguayo-Robles ("Marin")
that he had two kilograms of cocaine to
sell. Marin passed this information to
co-defendant Jose Aguayo ("Jose"), who
agreed to find a buyer. Jose did so and
informed Marin, who contacted Mr.
Gutierrez. Mr. Gutierrez agreed to sell
the cocaine to Marin and Jose for
$42,000. Marin told Jose that they could

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each make $2,000 on the deal if they
resold the two kilograms of cocaine for
$46,000. Jose contacted the buyer, who
agreed to pay that amount. Marin
subsequently made plans with Mr.
Gutierrez and Jose for the cocaine to be
delivered on August 8, 2000.
On August 8, Mr. Gutierrez delivered the
cocaine to Marin and Jose; they agreed
that Marin and Jose would pay him after
they resold the cocaine later that day.
When Jose met with the buyer, however, he
was robbed of the cocaine. Between August
8 and August 28, Marin repeatedly told
Jose that Mr. Gutierrez and those working
with him would harm Jose’s family unless
Jose returned two kilograms of cocaine or
$42,000 to Mr. Gutierrez.
On September 1, 2000, Marin again spoke
to Jose who, unbeknownst to Marin and Mr.
Gutierrez, had begun working for the FBI.
During their conversation Marin blamed
Jose for losing the cocaine. Jose then
informed Marin that he would have $42,000
or two replacement kilograms of cocaine
for Mr. Gutierrez by September 8. Jose
asked Marin if Mr. Gutierrez and his
associates would refrain from taking any
retaliatory action against him or his
family before he paid Mr. Gutierrez, and
Marin agreed to speak to Mr. Gutierrez on
his behalf.
On September 7, Jose met with Marin at
his job to discuss their debt to Mr.
Gutierrez, and Jose told Marin that he
would have replacement cocaine to give to
Mr. Gutierrez the next day. On September
8, Jose and Marin met at Jose’s
residence, and Jose gave Marin two
kilograms of cocaine that had been
supplied to Jose by the Government. The
FBI and Cicero, Illinois, police
conducted a traffic stop of Marin’s car
as he left Jose’s house, and they
arrested Marin and recovered the two
kilograms of cocaine. Marin immediately
began cooperating with the FBI, and
agreed to deliver the cocaine to Mr.
Gutierrez as planned. Later that day,
Marin called Mr. Gutierrez and told him
in coded language that he had cocaine for
Mr. Gutierrez. This call was recorded by
the FBI. Marin told Mr. Gutierrez that he
was having car trouble, and Mr. Gutierrez
agreed to leave a car at a Popeye’s
restaurant for Marin’s use in bringing
the cocaine to him.

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Mr. Gutierrez drove a grey Buick Regal
to the Popeye’s, and he was followed by a
green Mazda 626. Mr. Gutierrez parked the
Regal next to Marin’s car, then left the
Regal and accompanied Marin to the trunk
of Marin’s car. Marin opened the trunk
and showed Mr. Gutierrez two kilograms of
cocaine inside a paper bag. With Mr.
Gutierrez’s agreement, Marin placed the
bag of cocaine in the passenger
compartment of the Regal. Mr. Gutierrez
got into the Mazda and attempted to leave
the parking lot, but was stopped and
arrested by the police and the FBI.
B. District Court Proceedings
On October 4, 2000, Mr. Gutierrez, Marin
and Jose were indicted. Count I of the
indictment charged all three with
conspiracy to distribute cocaine, in
violation of 21 U.S.C. secs. 846 and
841(a)(1), and Count II charged them with
possession with intent to distribute
cocaine in violation of 21 U.S.C. sec.
841(a)(1) for the August 8 transaction.
Count III of the indictment charged Mr.
Gutierrez and Marin with possession with
intent to distribute cocaine for the
September 8 transaction. On May 25, 2001,
Mr. Gutierrez pleaded guilty to Count I
pursuant to a written plea agreement. At
sentencing the district court found that
four kilograms of cocaine should be
attributed to him--the two kilograms he
delivered to Marin and Jose on August 8
and the two kilograms he accepted from
Marin on September 8--and sentenced Mr.
Gutierrez to 57 months’ imprisonment. Mr.
Gutierrez timely appealed.
II
DISCUSSION
A. Standard of Review
Mr. Gutierrez’s only argument on appeal
is that the district court erred by
attributing to him four, rather than two,
kilograms of cocaine. We review the
district court’s drug quantity
determination for clear error. United
States v. Huerta, 239 F.3d 865, 875 (7th
Cir. 2001). Clear error exists only when
this court is left with a "’definite and
firm conviction that a mistake has been committed.’"
Id. (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395

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(1948)).
B. Relevant Conduct/Reasonable
Foreseeability
Mr. Gutierrez argues that a four-
kilogram quantity was not reasonably
foreseeable to him because the conspiracy
he entered into with Marin and Jose was
for the sale of two kilograms. Mr.
Gutierrez argues that, because he pleaded
guilty to conspiracy, the relevant
conduct for which he can be held
responsible under U.S.S.G. sec. 1B1.3 "is
co-extensive with the responsibility
under the conspiratorial agreement." This
argument is incorrect. Under U.S.S.G.
sec. 1B1.3, a defendant’s base offense
level is computed on the basis of both
his count(s) of conviction and all
"relevant conduct." When a drug offense
is involved, relevant conduct encompasses
"all acts and omissions . . . that were
part of the same course of conduct or
common scheme or plan as the offense of
conviction," U.S.S.G. sec. 1B1.3(a)(2),
including "all acts and omissions
committed, aided, abetted, counseled,
commanded, induced, procured, or wilfully
caused by the defendant." See U.S.S.G.
sec. 1B1.3(a)(1)(A). Thus, whether or not
Mr. Gutierrez’s effort to reacquire the
lost kilograms was part of the conspiracy
to distribute them initially, his
personal involvement in the September
transaction renders it relevant conduct.
When a conspiracy defendant personally
engages in illegal conduct, his actions
are deemed "relevant conduct" for
sentencing purposes without resort to the
"reasonable foreseeability" test of
U.S.S.G. sec. 1B1.3(a)(1)(B). For
example, in United States v. Crockett, 82
F.3d 722, 729 (7th Cir. 1996), a
defendant cocaine supplier argued that
his sale to a co-conspirator, who by then
was cooperating with authorities, did not
constitute relevant conduct in part
because the transaction was made after
the conspiracy had ended and thus the
drugs involved were not "reasonably
foreseeable" to him. We held the
defendant’s argument mistaken because the
transaction involved his own conduct and
therefore the requirement of "reasonable
foreseeability" did not apply. Id. at 729
n.3; see also United States v. Dorsey,
209 F.3d 965, 968 (7th Cir. 2000) (gun
possession that defendant personally
aided by supplying purchase money was

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relevant conduct without resort to the
reasonable foreseeability analysis of
U.S.S.G. sec. 1B1.3(a)(1)(B)); United
States v. Corral-Ibarra, 25 F.3d 430, 438
(7th Cir. 1994) (defendant who played
"direct, personal role" in drug
transaction liable for entire quantity of
drugs involved without resort to
reasonable foreseeability analysis)./1
The same is true here; Mr. Gutierrez went
to the Popeye’s for the specific purpose
of meeting Marin and accepting delivery
of the two kilograms of cocaine. Mr.
Gutierrez personally committed the
wrongful act, and the district court did
not clearly err by attributing the two
kilograms of cocaine to him as relevant
conduct under sec. 1B1.3(a)(1)(A) without
resorting to the "reasonable foreseeable"
analysis of sec. 1B1.3(a)(1)(B).
C. Sentencing Entrapment or Manipulation
Mr. Gutierrez also argues that he should
not be held responsible for the two
kilograms involved in the September 8
exchange because that transaction was
initiated by the Government. He asserts
that if the Government had given Jose and
Marin $42,000 to return to him instead of
cocaine, he could not have been found
responsible for the additional two
kilograms. To the extent that Mr.
Gutierrez is asserting that the
Government engaged in "sentencing
entrapment" in this case, his argument
fails. Sentencing entrapment occurs
"’when the government causes a defendant
initially predisposed to commit a lesser
crime to commit a more serious offense.’"
United States v. Estrada, 256 F.3d 466,
473-74 (7th Cir. 2001) (quoting United
States v. Garcia, 79 F.3d 74, 75 (7th
Cir. 1996)). To show entrapment, a
defendant must prove that he lacked a
predisposition to commit the crime, but
that "his will was overborne by
unrelenting government persistence."
United States v. Cotts, 14 F.3d 300, 306
n.2 (7th Cir. 1994); see also United
States v. Searcy, 284 F.3d 938, 942 (8th
Cir. 2002) ("’entrapment . . . focuses on
the defendant’s predisposition to commit
the crime in question. . . . [The
question then becomes whether] the defen
dant was predisposed to commit the crime,
apart from the government’s inducement.’"
(quoting United States v. Berg, 178 F.3d
976, 980 (8th Cir. 1999))); United States
v. Jones, 18 F.3d 1145, 1153 (4th Cir.

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1994) (an essential element of sentencing
entrapment is the defendant’s lack of
predisposition to commit the crime). Mr.
Gutierrez has not made such a showing
here.
Mr. Gutierrez clearly demonstrated a
predisposition to be involved with the
distribution of cocaine by admitting that
he supplied two kilograms to Jose and
Marin for resale. Furthermore, he was a
willing participant in the September 8
transaction; he traveled to the Popeye’s
restaurant for the specific purpose of
picking up two kilograms of cocaine. Mr.
Gutierrez admitted during his plea
colloquy that he went to the restaurant
knowing that a drug deal would take
place:
THE COURT: Well you knew it was a drug
deal, right?
MR. GUTIERREZ: Yes.
THE COURT: You and your co-defendant Marin
Aguayo-Robles and Jose Aguayo were
involved--you were setting up a two-
kilogram deal, right, cocaine deal?
MR. GUTIERREZ: Yes.
THE COURT: The cocaine got stolen by the
buyer, right?
MR. GUTIERREZ: Yes.
THE COURT: Somebody went out and got two
more kilograms to fulfill the original
deal, correct?
MR. GUTIERREZ: Yes.
R.72-1 at 20. Mr. Gutierrez did not
present any evidence to show that the
Government somehow coerced him to
participate in the September 8
transaction; rather, the evidence shows
that he willingly went to the Popeye’s to
procure the two replacement kilograms of
cocaine. It was Mr. Gutierrez’s
expectation that he would receive either
money or replacement cocaine that led to
the September 8 transaction, not pressure
by the Government. He therefore cannot
show that sentencing entrapment occurred.
Conclusion
For the foregoing reasons, we affirm Mr.
Gutierrez’s sentence.

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AFFIRMED
FOOTNOTES
/1 Other circuits have similarly held that the
"reasonable foreseeability" test of sec. 1B1.3(a)(1)(B)
does not apply when a defendant personal-
ly engages in the wrongful conduct. See United
States v. Anderson, 174 F.3d 515, 528 n.4 (5th
Cir. 1999); United States v. Strange, 102 F.3d
356, 360 (8th Cir. 1996); United States v. Lock-
hart, 37 F.3d 1451, 1454 (10th Cir. 1994); United
States v. Tran, 16 F.3d 897, 905 (8th Cir. 1994).

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