In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3715
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARIANO O RTIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 438-2—Virginia M. Kendall, Judge.
A RGUED M AY 6, 2011—D ECIDED JUNE 14, 2011
Before B AUER, K ANNE, and E VANS, Circuit Judges.
K ANNE, Circuit Judge. Jarbaree Williams sold Mariano
Ortiz a car and then took him for a ride. After the ill-fated
road trip with Williams to buy drugs, Ortiz pled guilty
to attempted possession with the intent to distribute
controlled substances. Ortiz appeals the statutory-mini-
mum sentence he received under 21 U.S.C. § 841(b),
arguing that his offense involved only the substance
he intended to personally possess and distribute. But
2 No. 09-3715
Ortiz pled guilty to aiding and abetting Williams’s at-
tempted possession with the intent to distribute, so his
offense involved all the controlled substances he helped
Williams attempt to purchase. Accordingly, we affirm
Ortiz’s sentence.
I. B ACKGROUND
In late June 2007, Ortiz bought a used GMC Jimmy from
Williams, a former high school classmate. About two
weeks later, Williams proposed that Ortiz join him on a
road trip to Tinley Park, Illinois, where Williams had
arranged to buy 135 pounds of marijuana and 7 kilograms
of cocaine. Ortiz knew about the transaction—and
supplied between $5,000 and $20,000 of the purchase
money—but Williams had organized the deal and planned
the trip. Neither Williams nor Ortiz knew that the pro-
fessed wholesaler was an undercover law enforcement
agent.
The two traveled separately, and only Williams got
out of his vehicle when they arrived at the point of sale.
After Williams inspected the drugs, officers arrested him
and Ortiz. The officers found $20,000 in Ortiz’s Jimmy
and about $50,000 in Williams’s vehicle. After his
arrest, Ortiz admitted he had come to buy marijuana.
He denied any interest in (or knowledge of) the cocaine.
The government charged Ortiz with two counts: con-
spiracy to possess with the intent to distribute control-
led substances in violation of 21 U.S.C. § 846 (Count 1) and
attempted possession with the intent to distribute con-
No. 09-3715 3
trolled substances in violation of 21 U.S.C. § 846 and
18 U.S.C. § 2 (Count 2).1 After Williams pled guilty and
agreed to testify against Ortiz, Ortiz pled guilty to
Count 2. He reserved the right to have the district court
determine the amounts and types of controlled sub-
stances involved in his offense and the appropriate sen-
tence.
Arguments at sentencing focused on 21 U.S.C. § 841(b),
which prescribes the minimum and maximum pen-
alties for any violation of 21 U.S.C. § 841(a). Everyone
agreed that the government was required to show the
amounts and types of controlled substances involved
(for § 841(b) purposes) in Ortiz’s offense beyond a rea-
sonable doubt. See Apprendi v. New Jersey, 530 U.S. 466
(2000). After two rounds of hearings and one round
of briefs, the court found that Ortiz’s offense involved
7 kilograms of cocaine and 135 pounds of marijuana.
Accordingly, the court concluded that 21 U.S.C. § 841(b)
required a minimum sentence of 120 months’ imprison-
ment. The court imposed a sentence of 120 months,
but suggested it would have handed down a shorter
sentence if not for the statutory minimum. Ortiz ap-
pealed, claiming the government had not shown the
drug type and amount involved in his offense beyond
a reasonable doubt.
1
Section 841 of Title 21 criminalizes possession with the
intent to distribute a controlled substance, the offense under-
lying the various charges against Ortiz.
4 No. 09-3715
II. A NALYSIS
We review de novo the interpretation of statutes and
plea agreements. United States v. Bell, 598 F.3d 366, 368
(7th Cir. 2010); United States v. Sowemimo, 335 F.3d 567,
571 (7th Cir. 2003). We usually review for clear error
any factual findings of the type and amount of con-
trolled substances involved in an offense. United States v.
Betts, 576 F.3d 738, 742 (7th Cir. 2009) (type); United States
v. Winbush, 580 F.3d 503, 512-13 (7th Cir. 2009) (amount).
But where the factfinder has found the type and amount
beyond a reasonable doubt in accordance with Apprendi,
we review de novo whether sufficient evidence sup-
ported that finding. See United States v. Arras, 373 F.3d
1071, 1073-74 (10th Cir. 2004).
Ortiz and the government vehemently disagree about
the offense to which Ortiz pled guilty as a principal. The
government argues that Ortiz participated with Williams
as a principal in the attempted purchase of cocaine and
marijuana from the undercover agent. Its theory is that
Ortiz was to provide $20,000 toward the purchase and
receive 2 kilograms of the cocaine and 10 to 30 pounds
of the marijuana, all of which he would later resell. The
government maintains that, regardless of the amount
of drugs Ortiz planned to walk away with, Ortiz’s guilty
plea was based on his participation—as a principal—in
the attempted purchase of drugs from the undercover
agent. Accordingly, the government contends that, for
21 U.S.C. § 841(b) purposes, the offense to which Ortiz
pled guilty involved all the controlled substances
included in the attempted purchase. Because Ortiz does
No. 09-3715 5
not dispute that this attempted purchase involved 135
pounds of marijuana and 7 kilograms of cocaine, the
government argues, Ortiz has no basis to challenge the
district court’s findings of drug types and amounts.
Ortiz argues that two distinct transactions were
planned. In the primary transaction, Williams would buy
a large quantity of drugs, including marijuana at $450
per pound. In a secondary transaction, Ortiz would buy
50 to 60 pounds of marijuana from Williams at about
$800 per pound. Ortiz claims that this secondary trans-
action alone formed the basis of his guilty plea. Thus,
he contends that the offense to which he pled guilty
could not have involved any controlled substances
except the marijuana he planned to buy from Williams.
See United States v. Rodriguez, 67 F.3d 1312, 1324 (7th
Cir. 1995) (noting that, in contrast to the sentencing
guidelines, 21 U.S.C. § 841(b) “looks only to the conduct
which actually resulted in a conviction” (quotation
marks omitted)). Ortiz also contends that, even if we
were to interpret “involves” liberally enough to allow
the government to show that his offense (as he character-
izes it) involved all the drugs Williams attempted to
purchase, the government made no such showing.
Because Ortiz pled guilty to aiding and abetting Wil-
liams’s attempted possession with the intent to
distribute controlled substances, we need not decide
whether the government or Ortiz is accurately charac-
terizing the offense to which Ortiz pled guilty as a prin-
cipal. Ortiz tries to minimize his plea of aiding and abet-
ting, stating in his brief that “[t]he reference to 18 U.S.C.
6 No. 09-3715
§ 2 in the plea is nothing more than an acknowledg-
ment that Mr. Ortiz’s attempt to possess and distribute
also constitutes aiding and abetting Jarbaree Williams’s
attempt to possess and distribute the same substance
(marijuana) and distribute it to him.” But Ortiz’s explana-
tion does not change the fact that he pled guilty to aiding
and abetting Williams’s attempted purchase from the
undercover agent. That attempted purchase was
the means by which Williams attempted to possess the
marijuana Ortiz wanted, and that attempted purchase
involved 135 pounds of marijuana and 7 kilograms of
cocaine.
In short, Ortiz pled guilty to an offense—aiding and
abetting the attempted possession of controlled sub-
stances with the intent to distribute—that involved 135
pounds of marijuana and 7 kilograms of cocaine. The
amount and type of controlled substances Ortiz intended
to personally possess and distribute are irrelevant to his
aiding and abetting liability under 21 U.S.C. § 841(b). Cf.
United States v. Martinez, 301 F.3d 860, 865 (7th Cir.
2002) (“[A]ll that § 841(b) requires is that the offense
involve certain types and quantities, not that the
defendant know the type and quantity.”).
Perhaps recognizing the importance of 18 U.S.C. § 2,
Ortiz argues that the government waived any aiding and
abetting argument. As evidence of this purported waiver,
Ortiz points to the government’s September 21, 2009,
submission to the district court regarding sentencing.
Ortiz refers us to the section of the submission titled
“The Government did not Need to Rely on Title 18,
No. 09-3715 7
United States Code, § 2.” In this section, the govern-
ment argues that it did not need to prove Ortiz had
aided and abetted Williams’s offense because Ortiz pled
guilty as a principal. Ortiz conveniently omits the gov-
ernments statement in the same section that Ortiz “did,
in fact, aid and abet the commission of that offense.”
The government’s message in its September 21 sub-
mission is consistent with its argument at sentencing
on August 27, 2009: “It just seems as though there is a
misunderstanding. [Ortiz] is saying he pled guilty to
this count and that count. He pled guilty to attempting
to knowingly and intentionally possess with the intent
to distribute controlled substances . . . . [A]nd what is
important, Section 2 is also a part of that count. He pled
guilty to 18 U.S.C. § 2, which is aiding and abetting.” The
government further clarified its position at oral argu-
ment before this court: “We don’t concede anything
with respect to aiding and abetting. It was in Count 2
of the indictment.” The government was confident that
it was characterizing Ortiz’s actions as a principal accu-
rately. Still, it did not waive its argument that Ortiz’s
aiding and abetting of Williams’s offense involved 135
pounds of marijuana and 7 kilograms of cocaine.
III. C ONCLUSION
Ortiz pled guilty to aiding and abetting Williams’s
attempted possession with the intent to distribute con-
trolled substances. That offense involved 7 kilograms
of cocaine and 135 pounds of marijuana, so 21 U.S.C.
8 No. 09-3715
§ 841(b) requires a minimum sentence of 120 months’
imprisonment. We thus A FFIRM Ortiz’s sentence.
6-14-11