USA v. Raul and Paqul Romero, 05-3294 and 05-3681.   A grand jury in the returned an 18-count superseding indictment charging narcotics violations against seven individuals including Raul and Ricardo Romero.   The government alleged that Raul Romero was a drug dealer in the organization while Ricardo Romero was a drug courier.

Raul Romero pled guilty to one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 130 months’ imprisonment. Ricardo Romero was found guilty by a jury of one count of conspiring to distribute cocaine in violation of 21 U.S.C. § 846, one count of possession of five grams or more of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Ricardo Romero to a term of 151 months’ imprisonment.

On appeal, Raul and Paqul Romero argue that the district court erred when it found that he was responsible for 2.5 kilograms of cocaine

Although Booker has transformed the Guidelines from binding to advisory, the "district court remains oblig[ated] to consult the Guidelines." United States v. Garner, 454 F.3d 743, 747 (7th Cir. 2006).  This obligation requires the district court to have "a correct understanding of [the Guidelines’] application to the defendant’s conduct." United States v. Avila, 465 F.3d 796 (7th Cir. 2006). Consequently at sentencing, the "district [court] must resolve [factual disputes], determine relevant conduct by a preponderance of the evidence, and apply the appropriate sentenc[ing] enhancements in order to compute the advisory [G]uidelines Sentenc[ing] range." United States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006).

"The [district] court’s sentenc[ing] determinations [as to factual disputes] must be based on reliable evidence, not speculation or unfounded allegations." United States v. Noble, 246 F.3d 946, 951 (7th Cir. 2001). The defendant’s "due process right to be sentenced on the basis of accurate information . . . is generally satisfied when the facts in question are found by a preponderance of the evidence using information that has a sufficient indicia of reliability to support its probable accuracy." United States v. Lister, 432 F.3d 754, 762 (7th Cir. 2005).

"The [G]uidelines instruct district courts to calculate sentences based on types and quantities of drugs not specified in the counts of conviction but that were ‘part of the same course of conduct or common scheme or plan’ as the convicted offenses." United States v. Arroyo, 406 F.3d 881, 888-89 (7th Cir. 2005).  "Two or more offenses are part of a common scheme or plan when they are substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi." United States v. Sumner, 265 F.3d 532, 540 (7th Cir. 2001). 

In determining relevant conduct, "the district court is entitled to estimate drug quantity using testimony about the frequency of dealing and the amount dealt over a specified period of time." Noble, 246 F.3d at 952.  The district court is also entitled to credit testimony that it finds reliable even when that testimony is provided by an "admitted liar, convicted felon, or large scale drug-dealing, paid government informant." United States v. Blalock, 321 F.3d 686, 690 (7th Cir. 2003).

"Generally, a court is entitled to rely on the PSR in ruling on factual issues in the sentencing context so long as the PSR is based upon sufficiently reliable information." United States v. Willis, 300 F.3d 803, 807 (7th Cir. 2002).  "When the [district] court relies on such information in sentencing a defendant, the defendant bears the burden of showing that the [PSR] is inaccurate or unreliable." United States v. Salinas, 365 F.3d 582, 587 (7th Cir. 2004).  The "defendant cannot show that a PSR is inaccurate by simply denying the PSR’s truth. Instead, he must produce some evidence that calls the reliability or correctness of the alleged facts into question." United States v. Jones, 209 F.3d 991, 996 (7th Cir. 2000).

The Seventh Circuit reviews the district court’s application of the Guidelines de novo and its factual determinations for clear error." United States v. Warren, 454 F.3d 752, 762 (7th Cir. 2006).  We will not overturn the district court’s factual findings unless we are "left with the definite and firm conviction that a mistake" was made by the district court. United States v. Bennett, 461 F.3d 910, 912 (7th Cir. 2006). 

The district court determined that Raul Romero was selling drugs out of a stash located in Anthony Romero’s Kennedy Heights apartment and therefore Raul Romero was responsible for the 1000 grams of cocaine witnessed by Ticey in Anthony Romero’s apartment.  Romer points to application note 6 to Guidelines § 1B1.3(a)(2) that states that the two street level drug dealers are not responsible for the conduct of the other dealer, despite having the same supplier.

The Seventh Circuit finds no reason to disturb the district court’s finding that Raul Romero is responsible for the 1000 grams of cocaine in Anthony Romero’s Kennedy Height’s apartment. The drug sale to Ticey and the offense conduct of the sale to the undercover officer share the common factors of similar modus operandi and common purpose. See United States v. Sumner, 265 F.3d 532, 540 (7th Cir. 2001).

The Seventh Circuit is also unconvinced by Raul Romero’s argument that he and Anthony Romero were merely two "street level" dealers who were sharing a common stash of drugs but otherwise were not working together. The district court heard testimony at the sentencing hearing from the DEA agent as to the significant number of wiretaps, undercover buys and other observations made by the government during its investigation of the Romero organization. This evidence demonstrated the extent of the Romero organization’s drug dealing activities and Raul’s participation in those activities. This evidence is also extensively set forth in the PSR and Raul Romero has done nothing to rebut this evidence.

As such, the Seventh Circuit affirms the relevant conduct calculations and sentences.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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