United States v. Pedro Rodriguez-Nuez

MANION, Circuit Judge,

concurring in part and dissenting in part.

While I concur in the majority’s conclusion that the district court correctly determined the amount of drugs to be used in computing Rodriguez-Nuez’ base offense *468level, I dissent from its reversal of the district court’s two-level enhancements for Rodriguez-Nuez’ role as a supervisor and his possession of dangerous weapons during commission of the offense. I would affirm the sentence imposed by the district court.

This court concludes United States v. Tetzlaff, 896 F.2d 1071 (7th Cir.1990), requires rejection of the supervisor enhancement under Guideline § 3Bl.l(c). Tetzlaff holds that, to be eligible for the supervisor enhancement, a defendant must supervise someone in the actual offense for which he is convicted. The majority concludes Rodriguez-Nuez did not supervise anyone in the “possession with intent to distribute” offense to which he pleaded guilty. Tetz-laff is distinguishable, and the facts of this case support the supervisor enhancement.

In Tetzlaff the defendant was indicted on four counts 1 of selling cocaine to undercover agents; two of the four were for sales where his children were directly involved. The count to which he pleaded guilty, however, involved only Tetzlaff from beginning to end. Tetzlaff obtained the cocaine and, unlike previous sales, was alone when he sold it to undercover agents in his apartment. The court specifically noted that his “children had no involvement” in the transaction. Thus the supervisor enhancement was inappropriate.2

We must give “due deference” to the district court’s application of the guidelines to facts not found to be clearly erroneous. 18 U.S.C. § 3742(d); United States v. Herrera, 878 F.2d 997, 999-1000 (7th Cir.1989). In this case, Rodriguez-Nuez made previous distributions through Vincent Quiroz. This court acknowledges that there was evidence to support the district court’s conclusion that Rodriguez-Nuez “supervised” Quiroz. Further, the court agrees that “it could be inferred that [Quiroz] would be a participant in the contemplated distribution of the cocaine seized.” Ante at 465. It is reasonable to conclude, as the district court did, that this evidence shows that Rodriguez-Nuez was supervising Quiroz in the planned distribution of the seized cocaine. True, Quiroz was not involved in Rodriguez-Nuez’ Oct. 7 possession of the cocaine. But he was convicted of “possession with intent to distribute,” not just possession. If this court agrees that sufficient evidence shows Rodriguez-Nuez intended to distribute the Oct. 7 cocaine through Quiroz, given our deferential standard of review there is also enough evidence to support the district court’s two-level supervisor enhancement.

This court, troubled by the distance between the firearms and the seized drugs, rejects the district court’s two-level enhancement for possession of a dangerous weapon during commission of the offense under Guideline § 2D1.1(b)(1). The drug activity occurred at two separate locations: the duplex where Rodriguez-Nuez lived, and the home a few miles down the street where the drugs were stored. Evidence supports the conclusion that drugs came through the duplex either before or after being stored at the house — cocaine residue was found in mirrors at the duplex, and a government informant testified he bought cocaine from Rodriguez at the duplex. And of course no guns were found at the house where the drugs were stored; it was uncontroverted that Rodriguez-Nuez used the house for storage only, and stopped there for only a few minutes at a time, and never overnight. The guns — a .45 caliber semi-automatic rifle, and a loaded .38 caliber pistol — were kept at the duplex where Rodriguez-Nuez lived, but also where drug transactions obviously occurred. It is also quite possible that he carried the weapons with him when he picked up or delivered cocaine to the storage house, but it is understandable why he would not leave them there.

The cases cited by the majority do not demonstrate that the district court’s decision is erroneous. United States v. Vasquez, 874 F.2d 250 (5th Cir.1989) is not *469“closely similar” to our case. Ante at 467. In Vasquez, the defendant bought drugs from a federal agent in a car several miles from his home. A subsequent search of his home uncovered weapons. The Fifth Circuit relied on the fact that the drugs were provided by a government agent and indisputably never went near the defendant’s weapons. Our case is much closer to United States v. Paulino, 887 F.2d 358 (1st Cir.1989). There the defendants resided in an apartment where police found cash and a loaded semi-automatic pistol. In the same apartment building, but in a separate unfurnished apartment with a separate entrance, the police found drugs. The First Circuit applied the two-level enhancement, even though there was no evidence the drugs and weapons were ever in the same apartment. This case is similar to Paulino in that two locations were used for drug activity — one where the drugs were stored, and another where the defendants lived, sold drugs and kept drug paraphernalia. The only difference is that the locations in this case were further apart. Given all the evidence before the district court, however, it was not “clearly improbable that the weapon[s] [were] connected with the offense.” Commentary n. 3, § 2D1.1. The two-level enhancement was appropriate.

. An additional count involved only the children.

. Similarly, in United States v. Pettit, 903 F.2d 1336 (10th Cir.1990), the. supervisor enhancement was inappropriate because there was no evidence that Pettit planned or intended to supervise anyone in the distribution of the cocaine for which he was convicted.