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United States v. Arias

United States District Court, E.D. Wisconsin

December 4, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
LUIS ARIAS Defendant.

          MEMORANDUM OPINION

          LYNN ADELMAN DISTRICT JUDGE.

         Defendant Luis Arias pleaded guilty to two counts of distribution of 500 grams or more of cocaine based on incidents occurring on April 3, 2019, and April 16, 2019. The pre-sentence report (“PSR”) included as relevant conduct amounts dating back to 2009. Inclusion of these amounts increased the base offense level from 28, U.S.S.G. § 2D1.1(c)(6), to 34, U.S.S.G. § 2D1.1(c)(3). More importantly, marking the commencement of the instant offense as 2009 (rather than 2019) meant that defendant's prior sentences imposed in 1992 (from which he was released in 1995) and 1994 (from which he was released in 2003) fell within the 15 year look-back provision in U.S.S.G. § 4A1.2(e)(1); with those sentences scoring (3 points each), defendant's criminal history category increased from I to III, rendering him ineligible for the safety valve. See 18 U.S.C. § 3553(f)(1).

         I held a hearing, at which the government presented testimony from co-defendant Reginald Reed, who detailed his dealings with defendant dating back over a decade. The government also submitted text messages between the two men corroborating their more recent dealings. For the reasons that follow, I conclude that the relevant conduct commenced in 2017, and that the drug weight, determined conservatively, is between 15 and 50 kg of Defendant seeks to limit the relevant conduct to his transactions with Reed in March and April 2019, which total 4 kg of cocaine.[1] The government contends that their dealings going back to 2009 should be included; doing that produces a weight of more than 50 kg of cocaine, plus several kg of heroin.

         Defendant does not materially dispute the facts set forth in the PSR. While he indicates that the amounts are a bit overstated, and the time frames provided by Reed not quite accurate, he does not base his argument on that. Rather, the issue is whether the prior dealings qualify as relevant conduct under U.S.S.G. § 1B1.3.[2]

         The mere fact that a defendant engaged in other drug deals is not sufficient to justify treating those transactions as relevant conduct. United States v. Crockett, 82 F.3d 722, 730 (7th Cir. 1996). Rather, those other acts must be part of the “same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2)

         For two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi. U.S.S.G. § 1B1.3 cmt. n.5(B)(i). Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to each other, considering the degree of similarity of the offenses, the regularity of the offenses, and the proximity of the offenses. U.S.S.G. § 1B1.3 cmt. n.5(B)(ii). If one of these factors is absent, a stronger presence of at least one of the other factors is required. See United States v. Baines, 777 F.3d 959, 963 (7th Cir. 2015); United States v. Ortiz, 431 F.3d 1035, 1040-41 (7thCir. 2005).

         Defendant relies on two “breaks” in the dealings alleged here to make his argument. First, in October 2018, one of Reed's fellow dealers, Terrance Roby, was arrested; in response, Reed paused his sales of heroin and cocaine, and he did not resume until March 2019. Defendant cites cases indicating that such “gaps” may render conduct not relevant. See, e.g., United States v. Bacallo, 149 F.3d 717, 719-20 (7th Cir. 1998). He further contends that because this break was voluntary, rather than the result of either of the regular participants being arrested, it should be seen as breaking the chain of relevant conduct. See, e.g., United States v. Ruiz, 178 F.3d 877, 881-82 (7th Cir. 1999); United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir. 1993). Finally, defendant contends that when the dealing resumed in 2019 he used a different supplier than he had in 2018 and earlier, which also distinguishes the two periods. Cf. United States v. Burnett, 805 F.3d 787, 792 (7th Cir. 2015).

         Second, defendant argues that there was a roughly four-year break in his dealing after he was diagnosed with cancer in 2011.[3] He acknowledges that this would not make him eligible for safety valve, although it would affect his criminal history, removing one of the two scored cases, and reduce his relevant conduct by about half.

         While the government initially argued that defendant did not make the full disclosure required by 18 U.S.C. § 3553(f)(5), it later withdrew that argument. The issue is thus whether the pre-2019 conduct is sufficiently related to the offenses of conviction.

         II.

         Reed indicated that he met defendant in prison around 2003.[4] After he was released in 2007, Reed reconnected with defendant to make money selling drugs. In 2008, he obtained one ounce of power cocaine and several pounds of marijuana from defendant once or twice per week. In 2009, Reed began obtaining 4-5 ounces of cocaine from defendant weekly. They usually met to conduct their drug business in the parking lot of the auto parts store where defendant then worked. Eventually, Reed began obtaining 1 kg per week, sometimes more, continuing at that level for about 18 months. In 2011, their dealings became more sporadic, and from 2013 or 2014 to about 2016 they took a break.

         Beginning in 2017, they again started dealing together regularly, with defendant providing cocaine (up to 1 kg every one to two weeks) and heroin (25 grams to start, later increasing to 1 kg), with their dealings continuing into the fall of 2018. They usually met to conduct their business in the parking of the auto parts store where defendant worked at that time.

         In October or November 2018, Reed's associate Roby was arrested, [5] and Reed decided to take a break due to fear that he too would be apprehended (perhaps with Roby's assistance). The text messages presented by the government suggest that the last drug- related contact between Reed and defendant occurred on or about November 10, 2018. (Ex. A.) Their next drug related communication occurred on or about February 23, 2019, [6] with this discussion involving marijuana. (Ex. D, E.) In March 2019, they recommenced their cocaine dealings. (Ex. G.)

         Reed estimated that from 2009 to 2019 he obtained about 50-100 kg of cocaine and ...


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