United States v. Alvarado-Tizoc
2011 U.S. App. LEXIS 18604
| 7th Cir. | 2011Background
- Defendants pleaded guilty to conspiracy to distribute fentanyl and heroin, with wholesale sales to retailers at issue.
- Duran defendants were sentenced to 170 months (Antonio) and 121 months (Noe); Alvarado-Tizoc received 200 months.
- retailers diluted fentanyl and sold mixtures containing fentanyl to end users; total retail doses exceeded wholesale fentanyl sold by defendants.
- Guidelines base offense level used the 2.5:1 fentanyl-to-heroin equivalency based on a jointly undertaken activity finding.
- District court found a jointly undertaken activity including retail sales, attributing retailers’ quantities to wholesalers for sentencing.
- This court vacates the sentences of Alvarado-Tizoc and Antonio Duran and remands for resentencing; Noe Duran’s sentence is affirmed on his unrelated claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a valid jointly undertaken activity tying retailers to wholesalers for sentencing? | Government: retailers are part of the same criminal enterprise; wholesalers foresee and share accountability. | Alvarado-Tizoc/Antonio: no conspiracy or joint undertaking with retailers; cannot attribute retail quantities. | No; joint undertaking not proved; no attribution of retail quantities. |
| Was the 2.5:1 fentanyl-to-heroin equivalency double counting properly avoided in sentencing? | Government: 2.5:1 reflects potency; increases sentence for fentanyl. | Defendants: double counting occurs when retail doses are attributed to wholesalers; sentencing should reflect approximate dosage impact. | Double counting improper; adjust without applying 2.5 multiplier to retail-dose attribution. |
| Should safety-valve relief have been granted under § 5C1.2 or would diminished mental capacity affect Noe Duran's sentence? | Government: safety valve not satisfied; Noe Duran's diminished capacity claim weak but not dispositive. | Alvarado-Tizoc: safety valve; Noe Duran: claim of diminished capacity warrants consideration. | Safety valve rejected for Alvarado-Tizoc; Noe Duran’s diminished-capacity claim affirmed as a non-weighty point; no adjustment for Noe Duran. |
Key Cases Cited
- United States v. Salem, 597 F.3d 877 (7th Cir. 2010) (conspiracy-like reasoning for jointly undertaken activity in guidelines)
- United States v. Soto-Piedra, 525 F.3d 527 (7th Cir. 2008) (jointly undertaken activity vs conspiracy distinctions)
- United States v. Vallar, 635 F.3d 271 (7th Cir. 2011) (seller-buyer relationship not automatically conspiratorial)
- United States v. Colon, 549 F.3d 565 (7th Cir. 2008) (illustrates limits of joint undertaking analysis)
- United States v. McDuffy, 90 F.3d 233 (7th Cir. 1996) (treatment of joint activity and conspiracy concepts)
- Gray-Bey v. United States, 156 F.3d 733 (7th Cir. 1998) (interchangeability of conspiracy and jointly undertaken activity)
- United States v. Lezine, 166 F.3d 895 (7th Cir. 1999) (foreseeability standard for joint liability within conspiracy framework)
- United States v. Martinez, 301 F.3d 860 (7th Cir. 2002) (knowledge of controlled substance suffices for sentencing purposes)