United States District Court, E.D. Wisconsin
ADELMAN DISTRICT JUDGE.
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.
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. 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.
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.
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. §
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
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).
defendant argues that there was a roughly four-year break in
his dealing after he was diagnosed with cancer in
2011. 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.
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
indicated that he met defendant in prison around
2003. 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.
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.
October or November 2018, Reed's associate Roby was
arrested,  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,  with this discussion involving
marijuana. (Ex. D, E.) In March 2019, they recommenced their
cocaine dealings. (Ex. G.)
estimated that from 2009 to 2019 he obtained about 50-100 kg
of cocaine and ...