United States v. Guzman, Allan R.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Argued February 28, 2007
Decided March 12, 2007

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

No. 06-1858

UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District
of Illinois, Western Division.
v.
No. 04 CR 50071
ALLAN R. GUZMAN,
Defendant-Appellant. Philip G. Reinhard,
Judge.

ORDER

Allan Guzman was indicted in 2004 after a year-long investigation into drug
trafficking near Rockford, Illinois. He went to trial (pro se but with standby
counsel) on the three counts in which he was named: conspiring with intent to
distribute cocaine, possessing cocaine with intent to distribute, and possessing a
firearm as a felon. See 21 U.S.C. §§ 846, 841(a)(1); 18 U.S.C. § 922(g)(1).

At trial, the government presented evidence that Guzman was a mid-level
distributor for a local drug kingpin, Martin Macias. Through phone conversations
taped pursuant to court order and videotapes of meetings between Guzman (and his
associates) and Macias (and his associates), the government presented evidence of
No. 06-1858 Page 2

Guzman’s drug purchases and payments. The government asserts, and Guzman
does not dispute, that the tapes and testimony evidence that Guzman purchased
13.5 ounces of cocaine in or around July 2004 and another 40 ounces between
September 6 and November 6, 2004. Government witnesses testified that Guzman
was caught on tape receiving a bag and placing it in the trunk of the car in which he
was riding; the bag later was found to contain one ounce of cocaine and an assault
rifle. The government also presented evidence that 693 grams of cocaine was seized
from the home of one of Guzman’s alleged co-conspirators, from whom he purchased
cocaine.

The jury found Guzman guilty on all three counts. The verdict form required
the jury to determine the drug quantity for the conspiracy count, and it found that
the amount was between 500 grams and five kilograms of cocaine.

The probation officer prepared a presentence investigation report (PSR) and
a supplement to that report. Citing only the government’s representation that
Guzman was fronted at least four ounces of cocaine a week for 15 months between
September 2003 and December 2004, the probation officer concluded that Guzman
was responsible for 3.412 kilograms of cocaine. This yielded a base offense level of
28 on the drug offenses, see U.S.S.G. § 2D1.1(c)(6), and with the addition of two
levels for possession of a firearm, see id. § 2D1.1(b)(1), resulted in a total offense
level of 30. The drug counts yielded a greater offense level than the gun count, so
the guidelines range for all three convictions was premised on § 2D1.1. See
U.S.S.G. § 3D1.3(a). With Guzman’s criminal history category of IV, the resulting
imprisonment range, as calculated by the probation officer, was 135 to 168 months.

Guzman (still pro se) did not object to the drug-quantity calculation or to the
upward adjustment for possessing a gun, but he did argue that he was a minor
participant in the conspiracy and thus deserved a two-level decrease in offense level
under U.S.S.G. § 3B1.1. At sentencing, however, the district court denied this
request, reasoning that Guzman “was as equal as many of the persons in that
conspiracy” and was not a minor participant “just because Macias was the supplier
and more serious.” Also, without objection from Guzman, the court adopted the
drug quantity recommended in the PSR, reasoning that Guzman “was a distributor
in amounts in excess of two kilos over a little less than a six-month period.” The
court refused Guzman’s request for a sentence at the low end of the guidelines
range because of Guzman’s criminal history, and the court did not “like the fact that
a gun is involved here, even though it wasn’t used.” Still, “based on what
[Guzman’s] role was and based on the fact that there were others who were higher,”
the court denied the government’s request for a sentence at the high end of the
guidelines range and instead chose an overall term of 156 months.

Guzman raises two issues on appeal. First, he argues that the district court
improperly based the drug quantity calculations on unreliable information in the
No. 06-1858 Page 3

PSR. Next, he claims that he played a minor role in the drug conspiracy and
accordingly should have received a two-level reduction in offense level.

On appeal, Guzman first contends that the drug-quantity calculation in the
PSR is not supported by reliable evidence. The quantity of drugs attributable to a
defendant is a factual finding. United States v. Marty, 450 F.3d 687, 689-90 (7th
Cir. 2006). In making this finding, a district court may rely upon facts set forth in
the PSR if they bear sufficient indicia of reliability. United States v. Sumner, 325
F.3d 884, 890 (7th Cir. 2003). In reviewing the district court’s drug-quantity
finding, we review all evidence that was before the district court. United States v.
Hankton, 432 F.3d 779, 790 (7th Cir. 2005).

Guzman did not challenge the drug-quantity calculation in the district court,
so we cannot analyze his forfeited claim of error unless we find (1) an error, (2) that
is plain, and (3) that affects Guzman’s substantial rights; even then, we will not
order a remand unless the error “seriously affects the fairness, integrity, or public
reputation” of the proceedings or results in a “miscarriage of justice.” United States
v. Ngo, 406 F.3d 839, 844 (7th Cir. 2005) (citations and quotation marks omitted).

As the district judge initially noted, the government’s evidence at trial placed
Guzman in the drug conspiracy for about six months. The government did not
produce evidence at trial that Guzman participated in the conspiracy for 15 months
as reported in the PSR. Thus, drug quantity calculations based on a 15 month
conspiracy participation was obviously incorrect. The district judge’s reliance on
that calculation in the PSR constituted plain error. Still, the error did not affect
Guzman’s substantial rights or result in a miscarriage of justice because the record
supports a finding that he was involved with at least two kilograms of cocaine, the
minimum necessary to trigger the base offense level of 28 applied to him. See
U.S.S.G. § 2D1.1(c)(6).

The government’s evidence at trial established that Guzman bought 40
ounces of cocaine in just two months—-September to November 2004.
Extrapolating from that number for the entire six months that he was shown to
have been in the conspiracy, see United States v. Durham, 211 F.3d 437, 444 (7th
Cir. 2000), Guzman may be held accountable for 120 ounces, or 3.4 kilograms of
cocaine, exactly the amount estimated by the probation officer and adopted by the
court. And even if Guzman is right that the district court should have reduced the
amount to account for his incarceration during much of December 2004, the drug
quantity would not fall below the two-kilogram minimum and thus would not
change his offense level, see U.S.S.G. § 2D1.1()(c)(6). Because Guzman cannot show
that the district court’s calculations affected his base offense level, any error is
harmless. See United States v. Frith, 461 F.3d 914, 918 (7th Cir. 2006).
No. 06-1858 Page 4

Guzman next argues that he was not a “primary player” in the drug
conspiracy because “very little evidence” tied him to other members of the
conspiracy. Thus, he says, he should have been deemed a minor participant and
received a two-level reduction in his offense level. See U.S.S.G. § 3B1.2(b).

To receive a deduction as a minor participant, a defendant must
demonstrate, by a preponderance of the evidence, that he was “substantially less
culpable” than the average participant. See U.S.S.G. § 3B1.2 cmt. n.3(A); United
States v. McGee, 408 F.3d 966, 987 (7th Cir. 2005). The district court’s application
of § 3B1.2 is a factual finding that we review for clear error. United States v.
Mendoza, 457 F.3d 726, 729 (7th Cir. 2006).

Here, the government provided evidence that Guzman was a middleman who
received drugs, sold those drugs to customers, and delivered the sales proceeds back
to his higher-ups. This evidence would suggest that Guzman was not “substantially
less culpable” than others in the conspiracy. See McGee, 408 F.3d at 987 (upholding
district court’s finding that mid-level distributor defendant did not establish that he
was substantially less culpable than average member of conspiracy). Accordingly,
no mistake is apparent in the district court’s conclusion that, though others
occupied higher roles in the drug conspiracy, Guzman, as a distributor, was
“essential” to its success.

AFFIRMED.