In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1479
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
N ORBERTO A RAUJO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 374-1—Ronald A. Guzmán, Judge.
A RGUED F EBRUARY 18, 2010—D ECIDED S EPTEMBER 23, 2010
Before E ASTERBROOK, Chief Judge, and K ANNE and
R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Norberto Araujo entered into
a plea agreement with the government in which he
both acknowledged that his heroin trafficking involved
a quantity of 30 or more kilograms of heroin and yet
reserved the right to assert that he should be held to
account for a lesser amount. He subsequently objected
to the probation officer’s proposed finding that he was
2 No. 09-1479
responsible for at least 30 kilograms of heroin, arguing
that the evidence warranted a finding that his traf-
ficking involved more than 10 but less than 30 kilo-
grams. In response to the objection, the government cited,
among other evidence, Araujo’s earlier proffer statement,
in which Araujo had acknowledged the distribution of
more than 30 kilograms of heroin. Based on Araujo’s
factual admission in the plea agreement, his proffer,
and alternatively based on independent evidence con-
cerning the extent of his trafficking, the district court
concluded that Araujo was responsible for distributing
at least 30 kilograms of heroin. That finding triggered
an advisory sentencing range of 235 to 293 months in
prison. The court sentenced Araujo to the minimum
recommended term of 235 months. Araujo appeals, con-
tending that the plea agreement is unavoidably am-
biguous on the subject of the drug quantity, that it was
improper for the government and, in turn, the court to
rely on his proffer to establish the drug quantity, and
that the evidence otherwise did not support a finding
that he trafficked in at least 30 kilograms of heroin.
We affirm.
I.
Araujo and his son Steven were arrested on June 6,
2007, shortly after they supplied 177 grams of heroin to
a person (“Individual B”) who was cooperating with the
authorities. Araujo had supplied the same individual
89 grams and 143 grams of heroin in the preceding two
weeks. Following their arrest, both father and son made
statements to law enforcement agents in which they
No. 09-1479 3
acknowledged their involvement in heroin trafficking.
Norberto Araujo confessed not only to the June 6 sale to
the cooperating individual but to a nine-year history
of drug trafficking. He disclosed that he had more than
one source of heroin: he had obtained 1.3 kilograms
of heroin from one organization approximately two
months before his arrest and had placed an order for
an additional two kilograms from the same source;
and from a second individual he had obtained 300 to
400 grams of heroin monthly for about one year. Araujo
in turn had distributed heroin to multiple customers:
he had sold the narcotic to an individual named “Spinks”
(Individual B) for nine years, in amounts ranging
from 28 to 200 grams; and he had sold 25- to 175-gram
quantities “straight from the brick” (i.e., undiluted,
directly from a kilogram) to “Ray” every ten days. Araujo
indicated that he had other customers as well, although
he usually diluted the heroin with a cutting agent
before distributing to those individuals. Like his father,
Steven Araujo admitted the June 6 sale. He told the au-
thorities that his father had stopped working (legiti-
mately) in 1997 or 1998.
A grand jury indicted Araujo on charges that he con-
spired with his son and others to possess heroin with the
intent to distribute, see 21 U.S.C. § 846, knowingly and
intentionally distributed heroin, see 21 U.S.C. § 841(a)(1),
and possessed heroin with the intent to distribute, see
id. Araujo would ultimately plead guilty to the con-
spiracy charge.
In the course of negotiating his guilty plea, Araujo
agreed to make a proffer of the facts underlying his
4 No. 09-1479
criminal activity. The terms of the proffer were set forth
in a letter that the government’s counsel sent to Araujo’s
lawyer. R. 83-1. Araujo’s counsel was admonished that
“if your client should subsequently testify contrary to the
substance of the proffer, or otherwise present a position
inconsistent with the proffer, nothing shall prevent the
government from using the substance of the proffer at
sentencing for any purpose . . . .” R. 83-1 at 1. Both Araujo
and his counsel acknowledged and consented to this
and the other terms of the proffer by signing the let-
ter. When Araujo subsequently made the proffer, he
indicated among other things that he had distributed in
excess of 30 kilograms of heroin over the course of his
drug-dealing.
Within days of the proffer, Araujo entered into a
written plea agreement with the government pursuant
to which he would plead guilty to the conspiracy charge.
R. 38. The agreement included a three-page “factual
basis” in which Araujo admitted “that from at least as
early as in or about 1998, and continuing until on or
about June 6, 2007, defendant was involved in the dis-
tribution of wholesale quantities of heroin to others,
including Individuals B and C, at locations in Berwyn,
Melrose Park, Harwood Heights, Chicago, Illinois and
elsewhere.” R. 38 at 3. The final sentence of the factual
summary stated, “The amount of heroin that was dis-
tributed during the course of the conspiracy and that
was reasonably foreseeable to defendant was at least 30
kilograms.” R. 38 at 4. Although that unequivocal state-
ment on its face appeared to resolve the drug quantity
for which Araujo was responsible, the agreement else-
No. 09-1479 5
where treated the relevant drug quantity as if it
remained an open question. Specifically:
The government believes the amount of heroin in-
volved in the offense of conviction and relevant con-
duct for which the defendant is accountable is
over 30 kilograms. Therefore, pursuant to Guideline
§ 2D1.1(a)(3) and § 2D1.1(c)(1), the government be-
lieves the base offense level is level thirty-eight. The
defendant reserves the right to assert that the
amount of heroin involved in the offense of convic-
tion and relevant conduct for which the defendant
is accountable is between 10 and 30 kilograms of
heroin and that the base offense level is therefore
thirty-six pursuant to Guideline § 2D1.1(a)(3) and
§ 2D1.1(c)(2).
R. 38 at 6 ¶ 9(b)(i). We are told that this provision was
added to the agreement at the eleventh hour at the
request of Araujo and his counsel. Apparently, little
thought was given to how Araujo’s reservation of rights
with respect to the drug quantity squared with the agree-
ment’s unqualified factual statement that the con-
spiracy to which he was pleading guilty entailed the
distribution of at least 30 kilograms of heroin and that
this amount was reasonably foreseeable to him.
Araujo pleaded guilty before the district judge on the
day after he signed the plea agreement. During the plea
colloquy, when the government was asked to recite
the key facts supporting the plea, the prosecutor stated
generally that Araujo had, in concert with others, dis-
tributed wholesale quantities of heroin from about 1998
6 No. 09-1479
until the date of his arrest in June 2007 and more specifi-
cally that he had sold 89 grams, 143 grams, and then 177
grams heroin to the cooperating individual on three
occasions in the run-up to his arrest. R. 106 at 15-17. The
court asked Araujo if these representations were
true and Araujo said that they were. R. 106 at 17-18.
But the total quantity of heroin for which Araujo was
responsible was not addressed. The court accepted
Araujo’s change of plea, and the case was continued
for a presentence investigation and sentencing.
Steven Araujo also pleaded guilty to the conspiracy
charge. In his own pre-plea proffer, Steven indicated
that he had been involved with his father’s drug traf-
ficking for approximately three years. His involvement
was not constant but instead focused on periods when
his father was visiting family members in Mexico. In
his plea agreement, Steven admitted that distribution of
between three and 10 kilograms of heroin pursuant to
the conspiracy was foreseeable to him. R. 36 at 4. That
was the quantity for which Steven ultimately was held
responsible at sentencing.
In anticipation of Araujo’s sentencing, the govern-
ment prepared its version of the offense and submitted
it to the probation officer. In that account, the govern-
ment reiterated its position that the conspiracy involved
at least 30 kilograms of heroin and that Araujo should
be held responsible for that quantity:
Defendant has acknowledged his heroin trafficking
spanned nine years. He distributed large amounts
of heroin at a time, and had no other appreciable
No. 09-1479 7
sources of income, all while having homes and
families in both the United States and Mexico. Defen-
dant’s son, who was only involved in the heroin
trafficking for a few years and who was not involved
in all of his father’s dealings, acknowledged a drug
quantity of up to 10 kilograms. Thus, the evidence
establishes that the defendant was involved in the
trafficking of over 30 kilograms of heroin.
R. 95, Government’s Version of the Offense at 3. Interest-
ingly, although the government relied upon other parts
of the plea agreement’s factual basis, it did not cite or
rely upon the averment that the distribution of 30 or
more kilograms of heroin was foreseeable to Araujo.
In her presentence report (“PSR”), the probation
officer determined that the heroin quantity which Araujo
should be held accountable was 30 or more kilograms,
which resulted in a base offense level of 38. R. 95 at 5.
Although the report acknowledged Araujo’s contention
that the conspiracy involved less than 30 kilograms, the
probation officer nonetheless deemed the higher quantity
of at least 30 kilograms appropriate, reasoning that “be-
cause the defendant agreed to this amount in his
plea agreement and did not provide any information to
refute it, it is the undersigned’s position that an offense
level of 38 is applicable.” R. 95 at 5.
Araujo objected to the proposed drug quantity, arguing
that the available “objective” evidence did not sup-
port a finding that he was responsible for 30 or more
kilograms. R. 79. The plea agreement’s factual basis
could not be relied on for a finding of 30-plus kilograms,
8 No. 09-1479
he argued, given that the agreement also reserved his
right to argue for a lesser quantity. R. 79 at 2. Walking
through the various witness statements that had been
produced to him in discovery, Araujo argued that
none of the statements was sufficient to establish with
sufficient reliability and precision that his trafficking
was sufficiently extensive to have involved 30 or more
kilograms of heroin. Pointing to his own post-arrest
statement, Araujo noted that he had started out as a
purveyor of cannabis, not heroin. R. 79 at 11. Although
he had also admitted trafficking in heroin for nine
years, “he did not say that this activity was constant for
the entire nine years.” R. 79 at 16. Moreover, in Araujo’s
view, the collective evidence did not demonstrate that
any and all of the heroin transactions in which he took
part from 1998 to 2007 were part of a single course
of conduct, such that they should all be included in the
drug-quantity calculation. R. 79 at 17. A finding of 30-
plus kilograms “must necessarily include quantities that
have absolutely no temporal proximity to those charged
herein and would not have been part of the same course
of conduct as that charged in the conspiracy.” R. 79 at
17. In sum, “[b]ased upon the discovery that has been
made available by the government, including Norberto’s
statement and those of his coconspirators, the heroin
involved was less than 30 kilograms.” R. 79 at 16. The
proper amount for which to hold him accountable was
thus more than 10 but less than 30 kilograms. R. 79 at 16.
In response to Araujo’s objection, and to make the
case that he was responsible for the distribution of 30
or more kilograms of heroin, the government cited two
No. 09-1479 9
categories of evidence. It cited the proffer statement,
in which Araujo had conceded distributing 30 or more
kilograms over the nine-year course of his heroin traf-
ficking. R. 83 at 4. Consideration of the proffer was ap-
propriate, the government argued, because in con-
tending that the conspiracy and relevant conduct in-
volved a lesser quantity of heroin, Araujo had taken a
position inconsistent with the substance of his proffer
and thereby forfeited the protections of the proffer letter.
The government also pointed to other evidence which
it believed independently supported the notion that
Araujo was responsible for that amount, including his
post-arrest admission that he had supplied the co-
operating witness, Individual B, with heroin for nine
years; the statement of another witness who said that
Araujo and his son had supplied him with more than
five kilograms of heroin “over the years”; and Steven’s
admission that, despite his relatively limited involve-
ment in the conspiracy, he himself was responsible for
up to 10 kilograms of heroin. R. 83 at 2-4.
After reviewing the parties’ submissions and hearing
argument on the drug quantity at sentencing, the district
court found Araujo responsible for 30 kilograms and set
his base offense level at 38. The court found, in the
first instance, that by challenging the notion that dis-
tribution of 30 or more kilograms of heroin during the
conspiracy was foreseeable to him, Araujo had taken a
position inconsistent with his proffer and had thereby
opened the door to the government’s use of the proffer
at sentencing. R. 105 at 19. Second, setting aside the
contents of the proffer, the court found that the evi-
10 No. 09-1479
dentiary record as a whole supported a finding that
Araujo was responsible for at least 30 kilograms. The
court noted in particular that Araujo had admitted to a
nine-year history of wholesale heroin distribution, that
he sold 677 grams to the confidential informant in the
weeks preceding his arrest, and that his son Steven, who
was involved in the conspiracy for just three years and
on an intermittent basis, had admitted responsibility
for three to 10 kilograms of heroin. R. 105 at 19-20. Finally,
the court pointed out that Araujo’s plea agreement con-
ceded distribution of no less than 30 kilograms of heroin.
R. 105 at 20.
II.
Under the Sentencing Guidelines, the base offense
level for a defendant convicted of a drug trafficking
offense typically turns on the total quantity of drugs
involved in the offense. U.S.S.G. § 2D1.1(a)(5) & (c). This
total includes transactions (and the amounts involved)
that constitute relevant conduct under the Guidelines, in
addition to any individual transactions (and amounts)
charged in the offense of conviction. See §§ 1B1.3, 2D1.1
comment. (n.12). As to a jointly undertaken offense,
which of course includes a conspiracy, relevant conduct
includes not only those acts and omissions of the defen-
dant, § 1B1.3(a)(1)A), but “all reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity” that occurred during the
conspiracy, § 1B1.3(a)(1)(B). For drug trafficking offenses,
it also includes any such acts and omissions “that were
No. 09-1479 11
part of the same course of conduct or common scheme
or plan as the offense of conviction.” § 1B1.3(a)(2); see
§ 3D1.2(d). The evidence on which the district court
bases its determination of the drug quantity for which
the defendant is responsible “must have ‘sufficient
indicia of reliability to support its probable accuracy.’ ”
United States v. Barnes, 602 F.3d 790, 794 (7th Cir. 2010)
(quoting United States v. Bautista, 532 F.3d 667, 672 (7th
Cir. 2008)). The court’s finding as to the relevant drug
quantity is one of fact that we review for clear error. Id.
Araujo contends that the district court’s drug-quantity
finding is not adequately supported by the record. The
plea agreement, in his view, is hopelessly ambiguous on
that subject: although he conceded in the agreement’s
recitation of the factual basis for his plea that 30 or more
kilograms were distributed in the course of the con-
spiracy and that this amount was foreseeable to him,
he also reserved the right to argue that he was re-
sponsible for less than 30 kilograms. He points out that
the government did not rely on that portion of the plea
agreement’s factual basis below, and that neither the
government nor the court attempted to pin him down
on the drug quantity during his plea colloquy. Araujo
does not dispute that he conceded responsibility for a
quantity of 30-plus kilograms of heroin in his proffer,
but contends that the contents of the proffer could not
be used against him at sentencing. Finally, he argues
that the evidence of his trafficking presented to the
court, although sufficient to establish his liability for
more than 10 but less than 30 kilograms, was insufficient
12 No. 09-1479
to support the court’s finding that he was responsible
for 30 or more kilograms.
We need not resolve the asserted conflict between the
plea agreement’s unequivocal statement that the dis-
tribution of 30 or more kilograms of heroin in the course
of the conspiracy was foreseeable to Araujo and the
reservation of his right to argue in favor of a lower
drug quantity. The government suggests that Araujo
might have been reserving a legal argument with
respect to the drug quantity without attempting to con-
tradict or retract the factual concession as to the 30-
plus kilograms that the agreement said were foreseeable
to him. In any case, that is not the type of argument
that Araujo, through his counsel, went on to make. He
instead argued that the evidence did not support a
finding that he and his co-conspirators distributed 30 or
more kilograms over the life of the conspiracy and that
this amount was foreseeable to him. That position is
difficult, if not impossible, to reconcile with the plea
agreement’s factual basis; and yet the government
did not contend below that this type of argument was
foreclosed to Araujo by the plea agreement, and the
government in fact pointedly refrained from citing the
factual basis in response to Araujo’s objection to the
drug quantity proposed in the PSR. It seems likely to us
that one or both parties forgot about or ignored the
factual basis when they agreed to let Araujo reserve the
relevant drug quantity for further argument. In any
event, the government has not relied on the factual basis
in defending the drug-quantity calculation.
No. 09-1479 13
The government does defend the court’s reliance on
Araujo’s proffer, and we agree that the proffer became
fair game once Araujo disclaimed responsibility for 30
or more kilograms of heroin. The proffer letter that
Araujo and his counsel signed included the standard
limitation on the use of any information that Araujo
conveyed in the proffer:
Anything related to the government by you or your
client during the proffer cannot and will not be used
against your client, NORBERTO ARAUJO in . . .
aggravation of your client’s sentence, in accordance
with Sentencing Guideline 1B1.8. . . . [I]f your client
should subsequently testify contrary to the sub-
stance of the proffer, or otherwise present a position
inconsistent with the proffer, nothing shall prevent
the government from using the substance of the
proffer at sentencing for any purpose . . . .
R. 83-1 at 1. The Guideline referenced in this provision
in turn states:
Where a defendant agrees to cooperate with the
government by providing information concerning
unlawful activities of others, and as part of that co-
operation agreement the government agrees that self-
incriminating information provided pursuant to the
agreement will not be used against the defendant,
then such information shall not be used in deter-
mining the applicable guideline range, except to
the extent provided in the agreement.
U.S.S.G. § 1B1.8(a). Taken together, the two provisions
precluded the government from relying on Araujo’s
14 No. 09-1479
proffer to establish the drug quantity for sentencing
purposes unless and until Araujo took a position
contrary to the proffer.
Araujo appears to read the plea agreement’s reserva-
tion of rights with respect to the drug quantity to give
him full license to oppose a heroin quantity of 30-plus
kilograms without fear that the government would turn
around and use his own proffer statement against him
when he exercised that right; otherwise, he reasons, the
right he so carefully preserved in the plea agreement
would be of little practical value. On Araujo’s reading of
the plea agreement, even if he had taken the stand
at sentencing and testified that he and his cocon-
spirators distributed less than 30 kilograms of heroin,
his contrary statement at the proffer would have
remained off limits to the government.
This is an implausible reading of the plea agreement.
That agreement said nothing about Araujo’s proffer or
its terms. The reservation of rights in the plea agree-
ment permitted Araujo to make at least some types of
arguments in favor of a lower drug quantity. We have
abstained from deciding whether the reservation freed
him from his otherwise binding factual admission in the
same agreement that the conspiracy foreseeably involved
the distribution of more than 30 kilograms. But whatever
type of argument the reservation preserved for Araujo,
it did not declare any type of evidence off limits to the
government in meeting that argument. The evidentiary
use of Araujo’s proffer statement was instead governed
by the terms of the proffer, which the plea agreement left
No. 09-1479 15
undisturbed. By the terms of the proffer letter, if and when
Araujo took a position inconsistent with his proffer, the
government was free to make use of his statement
at sentencing.
A fair reading of Araujo’s objection to the drug
quantity is that it affirmatively disclaimed culpability
for 30 or more kilograms of heroin. We may assume that
the proffer terms left Araujo free to challenge the suffi-
ciency of the evidence, independent of his proffer state-
ment, that the government cited in the first instance to
support a finding that he was responsible for more than
30 or more kilograms. It was the government’s burden
to establish the relevant drug quantity by a prepon-
derance of the evidence. E.g., United States v. Turner,
604 F.3d 381, 385 (7th Cir. 2010). A contention that the
government had not carried that burden, because the
transaction amounts reported by its witnesses did not
total up to 30 or more kilograms, would not by itself be
inconsistent with Araujo’s proffer statement. See United
States v. Krilich, 159 F.3d 1020, 1025 (7th Cir. 1998). “State-
ments are inconsistent only if the truth of one implies
the falsity of the other.” Id. at 1025-26. Saying that the
government has not proven a particular drug quantity
does not imply that the defendant was lying when he
conceded that quantity in plea negotiations. See id. at
1025. But Araujo’s written objection to the drug quantity
went beyond this type of argument. Araujo generally
asserted that “the appropriate amount of heroin for
which he should be held responsible and accountable
is more than 10 but less than 30 kilograms,” R. 79 at
16, and in support of that position he argued among
16 No. 09-1479
other things that he had started out as a distributor of
marijuana rather than heroin, R. 79 at 11; that using
the three- to 10-kilogram amount his son Steven ad-
mitted was distributed over the three-plus years of
his involvement in the trafficking enterprise, Araujo
himself should be held to account for just under three
times that amount, i.e., less than 30 kilograms, R. 79
at 6; and that “it appears from the discovery that the
greater than 30 kilogram quantity of heroin [for] which
the government seeks to hold [him] accountable must
necessarily include quantities that have absolutely
no temporal proximity to those charged herein and
would not have been part of the same course of conduct
as that charged in the conspiracy,” R. 79 at 17. Arguments
in this vein could reasonably be understood as a denial
that the conspiracy to which Araujo had pleaded guilty,
and any related conduct, involved a total of 30-plus
kilograms and, as such, a position that was inconsistent
with Araujo’s proffer statement. On that view of Araujo’s
objection, the terms of the proffer permitted the gov-
ernment to cite that statement as a means of rebutting
Araujo’s position.
This is not a case, like United States v. Farmer, 543 F.3d
363 (7th Cir. 2008), in which the prosecution cited the
defendant’s proffer in support of the version of the
offense it submitted to the probation officer, before a
presentence report had been prepared and thus before
the defendant pursued an objection that was incon-
sistent with the proffer. Id. at 373-74. When the govern-
ment submitted its version of Araujo’s offense to the
probation officer, it said nothing of the proffer and
No. 09-1479 17
instead relied on evidence wholly independent of
Araujo’s admission in the proffer (and his similar admis-
sion in the plea agreement) for the proposition that he
was responsible for 30 or more kilograms of heroin. For
her part, the probation officer relied on the plea agree-
ment’s factual basis in arriving at the quantity of 30 or
more kilograms. Araujo, in objecting to that quantity,
anticipated that the government might rely on his
proffer and contended that it would be inappropriate
for the government to do so. But it was only after Araujo
contested the propriety of the 30-plus kilogram drug
amount that the government actually cited and relied
on his proffer statement. This was appropriate and con-
sistent with the terms of the proffer.
Araujo’s proffer statement is probative evidence that
by itself supports the district court’s drug-quantity cal-
culation. As an intermediary who both acquired whole-
sale amounts of heroin and then supplied it to others for
resale, Araujo was in as good a position as anyone to
know how much heroin was distributed over the life of
the conspiracy and his related course of drug dealing.
By the time he gave his proffer, Araujo had been in-
dicted and consulted with counsel, so he no doubt ap-
preciated the significance of the drug quantity. By
entering into the proffer agreement, promising to be
truthful, and agreeing to let the government use his
statement against him should he later contradict him-
self, he imbued his statement with greater credibility.
Krilich, 159 F.3d at 1024-25.
We add that the amount Araujo acknowledged in his
proffer is consistent with and reinforced by the other
18 No. 09-1479
evidence presented in the case. As conceded by Araujo
in both the plea agreement and at his change of plea
hearing, he had distributed wholesale quantities of
heroin for nine years. (Although the conspiracy charged
in the indictment did not commence until 2004, when
Araujo’s son became involved in the heroin trafficking,
the plea agreement makes clear that Araujo had been
trafficking in wholesale quantities of heroin since
1998 in the same area of metropolitan Chicago, together
with some of the same co-conspirators, including Indi-
viduals B and C, as he did during the period of the
charged conspiracy. See R. 38 at 2-3. It is reasonable to
conclude that Araujo’s trafficking prior to 2004 was
part of the same course of conduct as his trafficking
during the alleged conspiracy.) Araujo had no verifiable
legitimate employment during that time, but supported
family members in both the United States and Mexico.
Steven Araujo, who had aided his father’s trafficking
operation on a part-time basis and over a period of
roughly three years, conceded that the distribution of
as much as 10 kilograms of heroin was foreseeable to
him. In his post-arrest statement, Araujo Senior acknowl-
edged that he had multiple sources of heroin: he had
obtained more than a kilogram of heroin roughly two
months prior to his arrest from one source, and had
a pending order for another two kilograms; from a
second source, he had purchased 300 to 400 grams
monthly over the course of a year, for a total of 3.6 to 4.8
kilograms acquired in that year. If Araujo was pur-
chasing four kilograms of heroin per year, which is a
reasonable estimate given the amounts he acquired from
No. 09-1479 19
these two sources, then he obtained at least 36 kilograms
of heroin for resale over the nine years of his traf-
ficking operation. What we know about the sales side
of his operation is consistent with that estimate. Araujo
sold two-thirds of a kilogram of heroin to the govern-
ment’s informant in May and June 2007; multiplying
that amount by six indicates that he was selling four
kilograms of heroin per year.1 Araujo had other cus-
tomers, of course: he acknowledged in his post-arrest
statement that he had been selling heroin to “Ray” in
amounts between 75 and 175 grams of heroin every
ten days in undiluted form, for example. As those
1
Araujo points out that, contrary to his own post-arrest
statement that he had been supplying heroin to Individual B
for nine years, Individual B told the authorities that he only
transacted business with Araujo and his son from 2003 until
2005, at which time he began to obtain heroin from Individual
C, whom the Araujos (among others) also supplied. Individual
B also described a smaller range of transaction amounts than
Araujo himself did. But these conflicts do not undermine the
district court’s drug-quantity calculation. Araujo conceded in
the plea agreement that he had dealt in wholesale quantities
of heroin for nine years. The transaction amounts and fre-
quencies that both Individual B and Araujo recounted were
consistent with wholesale distribution on a significant scale.
Moreover, the amounts of heroin involved in the charged
transactions leading up to Araujo’s arrest were themselves
large, consistent with the totals that Araujo said he had histori-
cally sold to Individual B, and indicative of an overall level
of trafficking consistent with the 30-kilogram total attributed
to Araujo.
20 No. 09-1479
amounts are consistent with the amounts that Araujo
sold to Individual B in the weeks preceding his arrest,
they dispel doubt that the sales to the government’s
agent were unusual either in frequency or amount. The
sales to “Ray” alone would total between 2.7 kilograms
and 6.3 kilograms per year.
Obviously, determining the total drug quantity for
which Araujo is responsible requires extrapolation,
as the record does not include any sort of book-
keeping data on his purchases and sales nor comparable
year-by-year witness accounts of his transactions. But
such extrapolation is permissible so long as it is based
on reliable data regarding the size and frequency of the
defendant’s transactions. E.g., United States v. Easter,
553 F.3d 519, 524 (7th Cir. 2009) (per curiam), petition for
cert. filed (U.S. Mar. 26, 2009) (No. 08-9560), and cert.
denied, 130 S. Ct. 1281 (2010) (No. 08-10584). Araujo
himself admitted to a nine-year history of wholesale
trafficking, and there is nothing in the record suggesting
that the substantial amounts of heroin he is known to
have acquired and sold to the government’s informant
and to his second identified customer were dispropor-
tionate to the level of his trafficking in other years. The
available evidence confirms the total drug quantity
that Araujo conceded in his proffer.
III.
The district court did not clearly err in finding Araujo
responsible for the distribution of 30 or more kilograms
of heroin and setting his base offense level at 38. The
No. 09-1479 21
sentence that the court imposed was within the
advisory range corresponding to that offense level and
therefore is presumptively reasonable; and beyond chal-
lenging the drug quantity, Araujo has posed no other
objection to his sentence on appeal. We therefore A FFIRM
his sentence.
9-23-10