UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE JAIME LOPEZ, Defendant-Appellant.
No. 17-1391
United States Court of Appeals For the Seventh Circuit
Decided October 24, 2018
ARGUED SEPTEMBER 26, 2018
Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. A jury convicted Jose Jaime Lopez of several drug-related offenses and the district court sentenced him to life in prison. In this direct appeal, Lopez challenges the denial of his motion to suppress, the sufficiency of the evidence on his conviction for attempting to possess with the intent to distribute 50 grams or more of methamphetamine, and his sentence of life in prison. We affirm both Lopez‘s conviction and sentence, though we again remind district courts
I. Background
Beginning in late September 2014, law enforcement agents intercepted communications over a cellular telephone pursuant to a Maryland state court order revealing that Heliodoro Moreno, through courier George Salinas, planned to transport to Lopez a large quantity of illegal drugs from Texas to Illinois. Lopez arranged for his friend Andrew Linares to pick up the illegal drugs from Salinas and bring them to him. Law enforcement intercepted the illegal drugs at an Illinois bus stop, arresting Salinas and Linares and seizing 10 ounces of methamphetamine from Salinas. By 2015, the government developed a source who engaged in three controlled purchases of illegal drugs from Lopez, who law enforcement later arrested and charged in this case with several drug crimes.
A.
On February 4, 2016, a federal grand jury indicted Lopez on numerous drug-related offenses including, pertinent here, that on or about October 1 to October 3, 2014, Lopez knowingly attempted to possess 50 grams or more of methamphetamine with intent to distribute, in violation of
The district court denied Lopez‘s motion, concluding that the court order complied with
On October 24, 2016, about a week before trial, the government filed an information pursuant to
B.
1.
The case proceeded to trial on November 1, 2016. During trial, the jury heard from 17 witnesses, including Salinas, who testified about his transportation of methamphetamine via bus from Texas to Illinois and his communications with Lopez and Moreno; Linares, who testified about the instructions he received from, and the communications with, Lopez relating to picking up Salinas with the drugs from the bus stop in Illinois and bringing him to Lopez; Special Agent Joe Green, who testified about the events surrounding the receipt of information about Salinas’ transportation of drugs from Texas to Illinois and the arrest of Salinas and Linares; and other law enforcement officers. The government additionally presented many exhibits, including intercepted phone calls, extracted data from Salinas’ and Linares’ cell phones; the methamphetamine that Salinas transported from Texas to Illinois; and various items seized from Lopez‘s Illinois home pursuant to a federal search warrant, including, among other things, address books with contact information for Salinas and Linares, five digital scales, ingredients that can be used as current agents for cocaine and methamphetamine, and two heat sealers that can be used to package illegal drugs.
2.
On September 27, 2014, pursuant to the Maryland state court order, agents of the Drug Enforcement Agency (“DEA“) intercepted a telephone call between Moreno and an individ-
On the call, Moreno confirmed that Lopez knew Salinas—the eventual drug courier—and told Lopez that Salinas would contact him. Salinas had known Lopez for more than six years and had twice traveled to Illinois to bring Lopez “a little bit of weed.” On September 28, 2014, Salinas and Lopez spoke about Salinas “bringing a package up” from Texas to Illinois.
Over the next three days, Moreno, Salinas, and Lopez made plans for Salinas to travel by bus from Houston to Illinois to deliver “ten little onions” to Lopez. Salinas would remain in Illinois until he received $4,000 in partial payment from Lopez, which Lopez thought would take him a few days to obtain. Lopez would then “work it, get rid of it” and settle the remaining balance with Moreno. As part of the plan, Lopez asked his friend Linares to pick up Salinas at the bus stop and Linares agreed to do so.
On the morning of October 2, 2014, Salinas arrived at a Houston bus station where one of Moreno‘s workers took him to pick up a cellophane-wrapped package that Salinas then hid in his crotch area before boarding the bus bound for Rantoul, Illinois, a town near Lopez‘s hometown of Hoopeston, Illinois. Salinas periodically sent text messages
On October 3, 2014, Linares was waiting at the Rantoul bus stop for Salinas’ arrival. Linares, who knew Salinas only by the nickname “old man,” had met him through Lopez on Salinas’ past trips to Illinois. Earlier that morning, Lopez reminded Linares to pick up Salinas and informed Linares of the status of the Salinas’ bus, confirmed the pick-up location (“the usual Walmart“), and directed him where to take Salinas (“to town,” meaning Lopez‘s home).
When Linares arrived at the bus stop on October 3, 2014, he sent a text message to Lopez stating, “I‘m here looks all clear,” to which Lopez responded, “Cool … . see you in a bit.” Salinas informed Lopez via text message when the bus arrived. Lopez responded that Linares is at the bus stop and instructed Salinas not to say anything.
Law enforcement agents were also at the bus stop. On October 2, 2014, the day prior, Baltimore DEA agents had informed their Illinois counterparts about incepted phone calls revealing that illegal drugs were being transported from Texas to Illinois. By that evening, after obtaining a federal search warrant for prospective cell phone location data, the Illinois DEA agents used cellular location data and physical surveillance to identify the bus on which Salinas was traveling and then followed the bus to Rantoul.
The law enforcement agents arrested Salinas and Linares after Salinas exited the bus and entered Linares’ car. Salinas gave them the package which a forensic chemist later determined contained 276.4 grams of a methamphetamine mixture
Law enforcement waited to arrest Lopez. By fall 2015, agents had completed three controlled buys of illegal drugs, including methamphetamine, from Lopez. Then, in early January 2016, law enforcement executed a search warrant on Lopez‘s home, seizing, among other things, address books with contact information for Salinas and Linares, five digital scales, ingredients that can be cutting agents for cocaine and methamphetamine, and two vacuum heat sealers and related packaging materials that can be used to package illegal drugs.
C.
Following the three-day trial, the jury found Lopez guilty on all counts. It also found on a special verdict form that the offense involved 50 grams or more of methamphetamine.
The district court subsequently held a sentencing hearing at which Lopez‘s sole objection to the Presentence Investigation Report (“PSR“) was its reliance on his 1999 guilty plea in Texas state court to enhance his sentence to mandatory life in prison. In short, Lopez contended that the guilty plea was not a “conviction” for purposes of
Without engaging in the colloquy or providing the admonition required by
II. Discussion
On appeal, Lopez makes three basic arguments: first, that the district court improperly admitted certain intercepted communications; second, that the government failed to prove beyond a reasonable doubt that he attempted to possess with intent to distribute 50 grams or more of methamphetamine; and third, that the district court erred in sentencing him to life in prison. We consider each challenge.
A.
We first take up Lopez‘s argument that the district court erred “by allowing the government to present evidence that violated Lopez‘s Fourth Amendment rights and did not meet the requirements of
The district court expressly found that the listening post was located in Maryland and Lopez did not argue otherwise below, see United States v. Daniels, 803 F.3d 335, 351–52 (7th Cir. 2015) (reiterating that suppression arguments made for the first time on appeal are waived absent good cause), and does not now identify any evidence to counter this finding or otherwise attempt to show that it was erroneous. Indeed, he merely speculates about the location of the listening post, while admitting that he failed to develop any record to support his claim. We therefore find no error in the district court‘s denial of Lopez‘s motion to suppress and reject any claim of evidentiary error at trial in this regard.
B.
We next address Lopez‘s sufficiency of the evidence challenge. “Appellants raising insufficiency challenges face ‘a nearly insurmountable hurdle.‘” United States v. Johnson, 874 F.3d 990, 998 (7th Cir. 2017) (citations omitted). In approaching such a challenge, we ask “‘whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‘” United States v. Wilson, 879 F.3d 795, 802 (7th Cir. 2018) (citation omitted) (emphasis in original).
1.
Lopez argues that we should vacate his conviction because the government did not prove beyond a reasonable doubt that he acted with specific intent. He does not focus on the jury‘s finding that he intended to possess methamphetamine, but instead focuses on distribution. We nonetheless address both and conclude that the evidence more than supports the jury‘s finding beyond a reasonable doubt that Lopez intended to possess and distribute at least 50 grams of methamphetamine.
First, on possession, the government presented more than sufficient evidence for the jury to find that Lopez intended to possess at least 50 grams of methamphetamine. Viewed in the light most favorable to the government, the evidence, including communication intercepts and the testimony of Salinas, Linares, and others, established that Lopez specifically agreed
Second, on distribution, the government likewise presented sufficient evidence for the jury to find beyond a reasonable doubt that Lopez intended to distribute the at least 50 grams of methamphetamine he arranged to receive from Salinas. The evidence showed that 10 ounces of methamphetamine exceeds the amount an individual would have for personal use (which is about 1 gram), supporting the reasonable inference that Lopez intended to distribute it, rather than use it for himself, as several government witnesses, including an expert in controlled substances, testified. See United States v. Baker, 655 F.3d 677, 684 (7th Cir. 2011) (observing that “intent to distribute can be inferred from the possession of a quantity of drugs larger than needed for personal use“). Lopez additionally told Moreno that “a lot is moved here” in response to Moreno asking him if he could sell illegal drugs prior to Moreno sending Salinas to Illinois. Moreover, Lopez arranged to pay the balance for the drugs a few days after receiving the drugs, suggesting that he would sell some of the drugs to generate money.
Lopez‘s primary retort is to challenge the intercepted communications, arguing that there is not sufficient evidence to
2.
Lopez next asks us to vacate his conviction because the government failed to prove that he took a substantial step towards committing the underlying offense. “A substantial step is ‘some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.‘” United States v. Muratovic, 719 F.3d 809, 815 (7th Cir. 2013) (citations omitted). “It requires ‘something more than mere preparation, but less than the last act necessary before actual commission of the substantive crime.‘” Id. (citation omitted). This is an “inherently fact
Here, the trial evidence establishes that but for the government‘s intervention Lopez would have received 10 ounces of methamphetamine that he planned to distribute. Although Lopez did not meet Salinas or Linares nor was he in the immediate vicinity of the bus station, the evidence nonetheless shows that he went well beyond the mere preparation stage. Lopez set in motion a complex plan that would have resulted in a large quantity of illegal drugs arriving at his home on October 3, 2014.
Indeed, in less than a week, Lopez agreed to buy a large quantity of illegal drugs from Moreno, and Salinas, at Moreno‘s direction, obtained 10 ounces of methamphetamine, communicated with Lopez about bringing illegal drugs to Lopez, and traveled from Texas to Rantoul—near Lopez‘s house—to meet Linares, who Lopez arranged to pick up Salinas at the bus stop and bring him to Lopez‘s home (and reminded him to do so on the morning of Salinas’ arrival). Lopez also agreed to specific payment terms, methods, and timing. Further showing Lopez‘s resolve to commit the crime, he repeatedly attempted to contact Salinas and Linares after their arrest. Taken together, Lopez‘s actions constitute more than mere preparation or speech; they were a substantial step towards commission of the underlying drug offense.
C.
We finally turn to Lopez‘s sentencing arguments. He contends that the district court erred in enhancing his sentence to life imprisonment because it improperly counted his 1999 guilty plea as a predicate “conviction” for purposes of
We review claims of procedural error at sentencing de novo. See United States v. Tounisi, 900 F.3d 982, 987 (7th Cir. 2018) (per curiam); see also United States v. Lockwood, 840 F.3d 896, 900 (7th Cir. 2016). Where, as here, a sentencing enhancement is at issue, we review “the district court‘s determination of facts at sentencing for clear error, and its interpretation of the guidelines and other statutory enhancements de novo.” United States v. Brown, 822 F.3d 966, 976 (7th Cir. 2016).
Section 841(b) “outlines the penalties for federal drug crimes based upon the quantity of drugs involved and the number of prior drug convictions.” Arreola-Castillo v. United States, 889 F.3d 378, 385 (7th Cir. 2018). If a defendant has two or more prior felony drug convictions that have become final, and his federal offense involves at least 50 grams of methamphetamine, the enhanced sentence is mandatory life in prison.
To impose the statutory enhancement under
If the defendant files a response, “[t]he court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment.” Id.
In addition,
1.
Lopez‘s primary argument is that the district court erred in counting his 1999 guilty plea in Texas as a conviction under
In Dickerson, the Supreme Court considered whether, as a matter of federal law, an individual had “been convicted” of a felony for purposes of evaluating his eligibility to possess a firearm under
Although the formal entry of judgment was absent, the Dickerson court held that the guilty plea constituted a conviction, as a matter of federal law, for purposes of disabling this individual from owning a firearm. The Court reasoned that there was a charge of the disqualifying type; a guilty plea to the charge; and a court order of probation. Reasoning further, the Court explained that a guilty plea “differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.” Id. at 111–13. The historical fact of conviction did not change with the state court‘s later expungement order. Id. at 114–15.
Our case law bolsters this conclusion. Relying on Dickerson, we have held that a guilty plea under Illinois’ first-time offender law,
Our sister circuits are in accord. See United States v. Pritchett, 749 F.3d 417, 425 (6th Cir. 2014) (deferred adjudication under Tennessee law); United States v. Craddock, 593 F.3d 699, 701 (8th Cir. 2010) (per curiam) (deferred sentence under Missouri law); Cisneros, 112 F.3d at 1275 (deferred adjudication under Texas law); United States v. Mejias, 47 F.3d 401, 403-04 (11th Cir. 1995) (per curiam) (deferred adjudication under Florida law). The district court therefore did not err in counting Lopez‘s 1999 conviction as a predicate conviction to enhance his sentence under
Lopez also argues that we should remand for resentencing because the district court violated
Lopez, who had notice from the government and the PSR that the government intended to seek an enhancement based on the 1999 guilty plea, never disputed the factual existence of the plea. In fact, his trial and appellate briefs acknowledge it and so did his counsel at oral argument. Lopez instead challenges the legal status of the 1999 guilty plea, arguing that it cannot qualify as a “conviction” under
Although we find harmless error, we emphasize that the availability of the harmless error analysis is not a license to skirt mandatory procedures. We remind district courts to follow the detailed procedures set forth in
3.
Lopez finally argues that the district court‘s “application of the recidivist sentencing enhancement ran afoul of due process and government policy.” This argument merits little discussion. Lopez reiterates his procedural objections without connecting them to due process and further attacks the government for its exercise of prosecutorial discretion in seeking a sentencing enhancement. Not only did Lopez fail to raise this argument below, and makes no attempt to show plain error, but his argument is merely an expression of his discontent with his mandatory life sentence, which is severe but not a violation of due process. See United States v. Franklin, 547 F.3d 726, 735 (7th Cir. 2008) (“mandatory minimum sentences are not a violation of a defendant‘s due process rights“).
For the foregoing reasons, Lopez‘s conviction and sentence are AFFIRMED.