NONPRECEDENTIAL DISPOSITION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
Submitted June 11, 2008
Decided June 12, 2008
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐1979
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 05‐CR‐253‐1
PEDRO MARTINEZ,
Defendant‐Appellant. James B. Zagel,
Judge.
O R D E R
Pedro Martinez sold two ounces of methamphetamine to an informant and another
pound to an undercover agent. Following a bench trial, Martinez was convicted of two
counts of distributing methamphetamine, see 21 U.S.C. § 841(a)(1), and sentenced to a total
of 151 months’ imprisonment followed by 60 months’ supervised release. Martinez filed a
notice of appeal, but his appointed counsel now moves to withdraw under Anders v.
California, 386 U.S. 738 (1967), because he is unable to discern a nonfrivolous basis for
appeal. Counsel’s brief is adequate, and Martinez has responded under Circuit Rule 51(b).
We limit our review to the potential issues identified by counsel and Martinez. United States
v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 07‐1979 Page 2
I.
Martinez defended the illicit sales on the ground that he thought he was working for
the Drug Enforcement Administration. On February 9, 2005, a month before the charged
distributions, DEA agents Lou Gade and Don Rospond interviewed Martinez because
Miguel Ocampo, a known methamphetamine dealer, fingered Martinez as his supplier.
Martinez speaks Spanish and the agents do not, so task‐force officer Mario Elias
participated by phone as an interpreter. Martinez testified at trial that the agents threatened
to turn him over to immigration authorities, beat him, or plant drugs on him if he did not
assist them. (Gade, Rospond, and Elias denied making those threats.) But Martinez told the
agents he wasn’t involved in the drug trade and thus could not offer any useful
information. He did, however, give the agents contact information for a man they were
investigating and pointed out the man’s house. The agents never asked Martinez to sign a
formal cooperation agreement, nor did they ask him to initiate a drug deal. Gade gave
Martinez his phone number before the interview ended, but the agent testified that
Martinez never called. (Martinez testified that he tried calling once, but Gade did not pick
up.)
About four days after this interview, Martinez purportedly discovered that Sally
Quinonez, Ocampo’s girlfriend, was cooperating with the DEA. According to Martinez,
Quinonez asked him for help in identifying and buying methamphetamine from dealers the
DEA would want to target. Martinez understood the plan as follows: he would find a
supplier to sell to Quinonez’s acquaintance, “Jay”—whom Martinez said he knew was
working for the DEA—and the DEA would nab the supplier. Martinez testified that he
proceeded with this plan without notifying any DEA agent and despite Quinonez’s warning
that “Gade”—Ocampo’s friend Mike Gade, not DEA agent Lou Gade—was trying to set
him up.
Although Martinez insisted that he had never before touched methamphetamine, he
was able to deliver two ounces on March 7 and a pound on March 18. Martinez testified
that he found a supplier through an associate of Ocampo’s known as “El Tigre.” El Tigre
took Martinez to a bar, where he introduced him to a large‐scale dealer known only as
“Angel.” Martinez recounted that he first bought $20 worth of methamphetamine from
Angel, and within a few weeks after that Angel was willing to front the methamphetamine
for the two March transactions, which together totaled $13,500. Martinez explained that he
provided “references” to earn Angel’s trust.
Quinonez, a government witness, denied telling Martinez that she was assisting the
DEA. She testified that she told him that she needed to obtain methamphetamine to pay for
Ocampo’s attorney, and that she had found a buyer named Jay (who was in fact undercover
No. 07‐1979 Page 3
agent Jay Zbrozck). The government introduced a recording of a phone conversation in
which Quinonez asked Martinez for two ounces of methamphetamine and he quoted her a
price of “12” per ounce. Martinez did not mention his supplier, Angel—the man he says he
was trying to set up—in the phone call. Martinez ended up delivering two ounces to
Quinonez in exchange for $2,000. He testified that Angel did not make the delivery because
he was suspicious of Zbrozck.
On March 17, Zbrozck telephoned Martinez to order a pound of methamphetamine.
During this conversation, which also was recorded, Martinez did not mention Angel, nor
did he tell Zbrozck about Angel’s suspicions. A first attempt to deliver the drugs failed, but
on March 18 Martinez met with Zbrozck and handed him the agreed quantity. At trial
Martinez testified that Angel was close by watching the transaction and would have made
the delivery himself had there not been a “mix up” between them. But at the time he did
not even mention Angel to Zbrozck.
Upon receiving the package, Zbrozck gave the arrest signal. Agents Gade and
Rospond testified that they, along with other officers, arrived wearing vests with “POLICE”
on the front and “DEA” on the back. Martinez fled on foot. He testified that he did so
instinctively. After he was caught and handcuffed, he did not say anything about being a
cooperator.
Once in custody, Martinez received Miranda warnings in English and in Spanish
from Officer Elias. Martinez then dictated a statement and signed it after Elias wrote what
he said in English and confirmed the translation line‐by‐line with Martinez. He admitted
both of the sales, explained that Angel had fronted the pound of methamphetamine, and
said that he planned to pocket $300 from that sale. The written statement does not mention
Martinez’s purported cooperation with the DEA, although Martinez testified that by the
time he signed the statement he had told the agents that he engaged in the drug deals to
help them nab Angel. Elias and Gade deny that.
In finding Martinez guilty, the district court thought it implausible that as a novice in
the drug trade Martinez was able to meet a large‐scale drug supplier and within weeks
persuade him to front Martinez a pound of methamphetamine. The court also viewed
Martinez’s flight from the officers after his delivery to Zbrozck strong evidence that
Martinez wasn’t cooperating and did not believe otherwise. Moreover, the court reasoned
that Martinez’s failure to contact DEA agent Gade before or after the first sale showed that
he didn’t believe he was cooperating. The court added that, even if Martinez had believed
he was working for the DEA, his belief was unreasonable given his testimony that
Quinonez told him that “Gade” was trying to set him up.
No. 07‐1979 Page 4
After the verdicts Martinez moved for a judgment of acquittal or, alternatively, for a
new trial. He argued that the district court’s last conclusion was erroneous because the
judge had confused Ocampo’s friend, Mike Gade, with agent Lou Gade, and thus assumed
that Martinez could not reasonably have believed he was working for an agent who was
trying to set him up. Martinez urged the court to enter a judgment of acquittal or at least
reevaluate the evidence independent of the court’s mistake about “Gade.” The district court
acknowledged its mistake but denied the motion. The court explained that, even if Martinez
wasn’t told that a DEA agent was trying to set him up, it still was unreasonable for him to
proceed with the deals knowing that someone was trying to set him up, particularly when, as
Martinez acknowledged, he had not made any formal arrangement with the DEA. The court
clarified, moreover, that the reasonableness of Martinez’s belief was not a critical factor in
the verdicts because Martinez’s entire testimony was not credible.
II.
Counsel and Martinez first consider whether Martinez might challenge the district
court’s handling of his posttrial motion. We agree with counsel that any argument would be
frivolous.
With respect to Martinez’s request for a judgment of acquittal, we would overturn his
convictions only if no rational trier of fact could have found Martinez guilty beyond a
reasonable doubt. See United States v. Beaver, 515 F.3d 730, 737 (7th Cir. 2008). Here Martinez
admitted that he knowingly distributed methamphetamine; the only contested issue at trial
was whether he reasonably believed that he was acting under the authority of DEA agents.
The district court, perhaps relying on United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996),
found that the government had disproved Martinez’s public‐authority defense beyond a
reasonable doubt. We have since clarified that when a defendant asserts a public‐authority
defense to a crime, like 21 U.S.C. § 841(a)(1), which on the element of mental state requires
only proof that he knew about the facts constituting the offense, it is his burden to prove this
excuse by a preponderance of the evidence. See United States v. Jumah, 493 F.3d 868, 872‐75
(7th Cir. 2007). Thus the trial judge, as the finder of fact, evaluated the evidence under a
standard far more favorable to Martinez than was authorized. But even judged under the
district court’s more generous standard, the evidence overwhelmingly supports the verdicts.
Martinez never entered into a formal cooperation agreement, he never contacted agents
before arranging his deals with Quinonez and Zbrozck, he was able to convince a
methamphetamine supplier to front a significant quantity of drugs, he fled when the agents
arrived after the second deal, and he never told the agents that he thought he was
cooperating. Indeed, the only evidence that supported Martinez’s position—his
testimony—was found not credible by the district court, and we would defer to the court’s
No. 07‐1979 Page 5
finding. See United States v. Biggs, 491 F.3d 616, 621 (7th Cir. 2007); United States v. McCaffrey,
181 F.3d 854, 856‐57 (7th Cir. 1999).
As for Martinez’s alternative request for a new trial based on the district court’s
confusion about which “Gade” was trying to set up Martinez, see FED. R. CRIM. P. 33(a), we
are skeptical that Martinez could even argue that he didn’t get exactly what he asked for.
This was a bench trial, and in that context the presiding judge may respond to a motion for a
“new” trial by taking additional evidence and entering a new judgment. See id. In effect,
that is what happened here. The trier of fact did reweigh the evidence, free of its earlier
mistake, and concluded that the verdicts should stand. And even if we characterize the
court’s action as a denial of Martinez’s motion, the verdicts are overwhelmingly supported by
the evidence, and thus we would not conclude that the court abused its discretion. See
United States v. Swan, 486 F.3d 260, 266 (7th Cir. 2007).
Counsel and Martinez also consider whether to argue that the district court erred in
admitting Martinez’s confession. Martinez testified that he did not understand the content
of his written statement and signed it only because he had to as a condition of receiving
medical treatment. Since Martinez would be raising the suppression argument for the first
time on appeal, and since neither he nor counsel has offered good cause for its tardiness, we
would not review the claim. FED. R. CRIM. P. 12(b)(3)(C), (e); United States v. Johnson, 415 F.3d
728, 731 (7th Cir. 2005). And even if Martinez could show good cause that would allow us to
review the claim, he would then have to establish that the confession was involuntary and
that admitting it was plain error. Id. at 731‐32. But Martinez did not offer credible evidence
that his confession was involuntary, and anyway the district court explicitly stated that the
confession was insignificant because it did not conflict with Martinez’s testimony at trial.
We agree with counsel, then, that an argument about the confession would be frivolous.
The remaining potential issues arise from Martinez’s sentencing, and here counsel
first evaluates whether there is a nonfrivolous argument that the district court erred in
finding that Martinez was ineligible for the “safety valve,” which allows first‐time offenders
to be sentenced below a statutory minimum if they meet certain requirements. See 18 U.S.C.
§ 3553(f); U.S.S.G. §§ 2D1.1(b)(11), 5C1.2. The district court found that Martinez was
ineligible because he did not fully and truthfully cooperate with the government. See 18
U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). We would reverse that finding only if it is clearly
erroneous, United States v. Olivas‐Ramirez, 487 F.3d 512, 516 (7th Cir. 2007), and it is not.
Martinez never came clean about his own role in the crimes, not even after the district court
found that his public‐authority defense was a sham. As far as this record shows, Martinez
never gave the government useful information about “Angel” (if he exists), and he never
offered any information about his relationship with Ocampo. Accordingly, we agree with
No. 07‐1979 Page 6
counsel that it would be frivolous to challenge the district court’s finding that Martinez was
not eligible for safety‐valve treatment.
Counsel next considers whether to challenge the district court’s calculation of the total
offense level, which included no reductions for minor participation, see U.S.S.G. § 3B1.2, or
acceptance of responsibility, see id. § 3E1.1. Although advisory, the guidelines still must be
properly calculated. United States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006). Because
Martinez did not object to the guidelines calculations, he at best has forfeited any challenge,
see United States v. Jaimes‐Jaimes, 406 F.3d 845, 848‐49 (7th Cir. 2005), and limited our review
to a search for plain error, see United States v. Wainwright, 509 F.3d 812, 815 (7th Cir. 2007).
We agree with counsel that the proposed arguments would be frivolous.
First, we could not conclude that the district court committed plain error by not
giving Martinez a mitigating‐role reduction. The district court understandably found that
Martinez played a significant—even central—role in the charged offenses: he arranged the
deals, produced large quantities of methamphetamine, and expected to profit from the
transactions. See United States v. Sandoval‐Vasquez, 435 F.3d 739, 745 (7th Cir. 2006); United
States v. McKee, 389 F.3d 697, 700 (7th Cir. 2004).
We likewise could not conclude that the district court committed plain error by
denying a reduction for acceptance of responsibility. Martinez put the government to its
burden of proof at trial, thereby rendering himself generally ineligible for the reduction. See
U.S.S.G. § 3E1.1 cmt. n.2; United States v. Hicks, 368 F.3d 801, 808 (7th Cir. 2004). And his
own testimony denying his guilt demonstrates that he did not accept responsibility.
Counsel also considers whether Martinez could challenge the reasonableness of his
prison sentence but rightly concludes that such a challenge would be frivolous. Martinez’s
sentence is at the bottom of a properly calculated guidelines range and thus would be
presumed reasonable on appeal. See United States v. Rita, 127 S. Ct. 2456, 2462‐63 (2007);
United States v. Gama‐Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006). Counsel is unable to
articulate any reason why the presumption would be overcome. The district court gave
detailed and meaningful consideration to relevant factors in 18 U.S.C. § 3553(a), see United
States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006), for example, discussing why he believed the
prison’s initial inattention to Martinez’s medical problems weighed in favor of a sentence at
the bottom of the guidelines range. Ultimately, the undisputed drug quantity drove the
sentence.
Finally, Martinez informs us that he wishes to argue that he received ineffective
assistance of counsel. Any such claim, however, is better suited to collateral attack, at which
No. 07‐1979 Page 7
time a full record may be developed. See Massaro v. United States, 538 U.S. 500, 504‐05 (2003);
United States v. Harris, 394 F.3d 543, 557‐58 (7th Cir. 2005).
Accordingly, counselʹs motion to withdraw is GRANTED, and Martinez’s motion for
the appointment of substitute counsel is DENIED. The appeal is DISMISSED.