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United States v. Contreras

United States Court of Appeals, Seventh Circuit

October 20, 2017

United States of America, Plaintiff-Appellee,
v.
Daniel Contreras, Defendant-Appellant.

          Argued October 3, 2017

         Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CR 9-2 - Amy J. St. Eve, Judge. No. 15 CR 10-2 - Harry D. Leinenweber, Judge. No. 14 CR 544-1 - James B. Zagel, Judge.

          Before Kanne, Rovner, and Sykes, Circuit Judges.

          Per Curiam.

         Daniel Contreras pleaded guilty to various drug-trafficking offenses in three separately charged criminal cases assigned to three different district judges. When calculating the guidelines range at sentencing, each district judge applied an upward adjustment of two offense levels after finding that Contreras maintained a premises-his home-

          "for the purpose of manufacturing or distributing a controlled substance." See U.S.S.G. § 2Dl.l(b)(12). Contreras appeals his concurrent 87-month sentences, arguing that each judge erred by not comparing the frequency of legal activity to the frequency of illegal activity that occurred at his residence. We affirm the sentences because the eight drug transactions that Contreras conducted at his home support a finding that drug trafficking was a primary use of the residence, not an incidental or collateral one.

         I. BACKGROUND

         On January 7, 2015, a grand jury returned three indictments against Contreras, charging him with drug trafficking offenses including distribution of cocaine, possession with intent to distribute cocaine, conspiracy, and unlawful use of a telephone to distribute drugs. Specifically, the indictments charged Contreras as follows:

• In Case 15 CR 9-2 (Appeal No. 16-1721), which was assigned to Judge Amy St. Eve, Contreras and two code-fendants were charged with one count of distributing 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). The government alleged that on April 15, 2013, one codefendant sent a courier to Contreras's residence with a kilo of cocaine, which Contreras then stored and sold to another codefendant inside the residence.

         • In Case 15 CR 10-2 (Appeal No. 16-1914), assigned to Judge Harry D. Leinenweber, the grand jury returned a 13-count indictment against Contreras and four code-fendants. Contreras was charged with two counts of possession with intent to distribute 500 grams or more of cocaine, 21 U.S.C. 841(a)(1), one count of distributing cocaine, id., and two counts of using a cellular phone to distribute drugs, id. § 843(b). The government alleged that on April 25, 2013, Contreras stole 2 kilograms of cocaine from a package that a codefendant had mailed to Contreras's home, intended for his roommate (also a codefendant). Contreras then delivered some of the stolen cocaine to a third codefendant.

• In Case 14 CR 544-1 (originally charged by complaint), which was assigned to Judge James B. Zagel, the grand jury indicted Contreras and two defendants for nine counts of drug trafficking, seven of which named Contreras. He was charged with one count of conspiracy to distribute 500 grams or more of cocaine, 21 U.S.C. §§ 846, 841(a)(1), two counts of distributing 500 grams or more of cocaine, id. § 841(a)(1), and four counts of using a cell phone to distribute drugs, id. § 843(b). The government alleged that on February 26, 2013 and March 13, 2013, a codefendant brought cocaine to Contreras at his residence. Contreras then sold this cocaine to a second co-defendant in four transactions, three occurring between March and April of 2013, and a fourth in the fall of that year. Lastly, Contreras directed his roommate to pay the first codefendant $5, 000, in partial payment of a narcotics debt, at his residence.

         In summary, the government alleged that Contreras engaged in a total of seven drug transactions from his home in the two-month period of March and April 2013, and one more in the fall of that year.

         Contreras pleaded guilty to all counts in each of his three cases, with the exception of one count of distributing 500 grams or more of cocaine, which was dismissed from Case 15 CR 10-2. The probation officer who prepared the presentence investigation reports concluded (and both sides agreed) that Contreras's base offense level in each case was 30, and proposed in each case to add two levels under U.S.S.G. § 2Dl.l(b)(12) because Contreras had "maintained a premises for the purpose of manufacturing or distributing a controlled substance." In his objections to the presentence reports and at his sentencing hearings, Contreras consistently argued that the two-level adjustment did not apply.

         Judge St. Eve, the first to sentence Contreras, concluded that the two-level adjustment should be added to Contreras's offense level. Based upon the eight transactions involving wholesale quantities of cocaine that occurred at Contreras's residence, she found the sale of drugs at the premises to be more than incidental; in fact, she said, the residence was "integral" to the transactions. (Rl. 73 at 8.)[1] At the next sentencing hearing, Judge Leinenweber explained that the adjustment applied because the drug activity was "almost...regular, " not occasional. (R2.112 at 4.) At the final sentencing hearing Judge Zagel also applied the two-level increase, adopting the same rationale as the other two judges, without elaboration. (R3.195 at 16.) The defendant and his attorney (the same for each case) were present at each hearing.

         After crediting Contreras with a three-level reduction for acceptance of responsibility, each judge found the total offense level to be 29. Contreras's criminal history category of I resulted in a guidelines range of 87-108 months' imprisonment in each case. All three judges imposed 87-month sentences, each to run concurrently with the others.

         II. ...


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