United States v. Robert Smith

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICOLAS J. ACOSTA, ERNESTO ESTRADA III,

GREGORIO M. ACOSTA, JR., JORGE N. BARRAGAN, JR.,

PEDRO ZAMORA, FLORENTINO CASTILLO,

DONALD K. FAIRBANKS, and ROBERT G. SMITH,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 05 CR 39—Barbara B. Crabb, Chief Judge.

____________

ARGUED APRIL 30, 2007—DECIDED JULY 15, 2008

____________

Before ROVNER, WOOD, and SYKES, Circuit Judges.

SYKES, Circuit Judge. The eight defendants in this case

participated in what we have previously described as a

“long-running” conspiracy involving the distribution of

“vast amounts of crack cocaine” by the Latin Kings gang

on the Lac Courte Oreilles Reservation in Northern Wis-

2 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

consin. United States v. Acosta, 474 F.3d 999, 1000 (7th Cir.

2007). Four of the defendants were convicted following

a jury trial; the others pleaded guilty. In addition to vari-

ous individual issues raised on appeal, all of the defen-

dants (with the exception of Robert Smith, whose attor-

ney filed an Anders brief) challenge the district court’s

sentencing findings regarding drug quantity. We affirm.

I. Background

On March 22, 2005, a grand jury sitting in the Western

District of Wisconsin returned an eight-count indictment

against 11 defendants stemming from their involvement

in the Latin Kings crack distribution network on the Lac

Courte Oreilles (“LCO”) Reservation in Sawyer County,

Wisconsin. The case was assigned to Chief Judge Barbara

Crabb, who also presided over the prosecution of other

defendants involved in the LCO Latin Kings drug organi-

zation. See Acosta, 474 F.3d at 999-1000.

Count 1—the centerpiece of the indictment—accused

John A. Radermacher, Pedro Zamora, Donald K. Fairbanks,

Andre R. Lasieur, Robert G. Smith, Gregorio M. Acosta,

Jr., Nicolas J. Acosta, Jorge N. Barragan, Jr., Florentino

Castillo, Ernesto Estrada III, and Nicholas W. Thayer of

conspiracy to distribute cocaine and cocaine base in excess

of 50 grams. The drugs were obtained primarily from

sources in Milwaukee and transported to the reservation

for distribution and resale by members of the Latin Kings

gang operating there. Some of the incoming drugs were

handled as “the Nation’s Dope,” that is, drugs obtained

and sold by the Latin Kings with some of the proceeds

returning to the gang.

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 3

06-1963, 06-2268, 06-2333 & 06-2594

Because of the sprawling scope of this case, the number

of defendants, and the variety of issues each raises on

appeal, we will initially provide only a brief, general

overview of the conspiracy, leaving the necessary

details for our analysis of the arguments made by the

individual defendants. Beginning in January 1999 and

running through December 2003, the Milwaukee Latin

Kings gang established and maintained a crack distribu-

tion network on the LCO Reservation in collaboration

with members of the LCO Latin Kings. Gang members

and nonmember coconspirators obtained powder and

crack cocaine from various sources—mainly suppliers in

Milwaukee but also some in Minneapolis—and trans-

ported the drugs to the reservation for “rocking up” (if

the cocaine was not already in crack form), packaging,

and resale from various drug houses.

The two LCO drug houses central to the charged con-

spiracy were residences maintained by Yvonne Dennis

(together, at various times, with certain of the charged

coconspirators) and Gregorio Acosta, Jr. (a “boss” in the

Milwaukee Latin Kings and “regional officer” in the LCO

Latin Kings), and his wife, Spring Lasieur Acosta. Dennis,

Spring Acosta, and two other women figuring prom-

inently in the conspiracy, Candace Radermacher (wife of

John Radermacher) and Jacqueline Martinson (girlfriend

of Jorge Barragan), were charged separately.

The illicit activities of the LCO Latin Kings crack con-

spiracy were facilitated by an organizational structure

typical of the Latin Kings—led by an “Inca,” with a

“Cacique” as the second-in-command, and an Enforcer

who addressed violations of Latin Kings law. “Shorties”

were adolescents too young to be full-fledged gang mem-

4 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

bers, but who could work their way up to membership

by doing the bidding of more senior members of the

gang. The core gang members would hold semiformal

meetings (or “demos”) at which they would discuss

(among other things) the details of the drug distribution

operation and receipt of its proceeds.

II. Analysis

A. Gregorio Acosta, Jr.

Gregorio Acosta, Jr., was charged with conspiracy to

distribute cocaine and cocaine base and several counts of

distribution of cocaine and cocaine base. He pleaded

guilty to the conspiracy count and was sentenced to 339

months, the bottom of the advisory sentencing guide-

lines range of 360 months to life, minus 21 months he

spent in state prison for related drug-trafficking conduct.

A “boss” in the Milwaukee Latin Kings, Gregorio sup-

plied powder and crack cocaine to the LCO Latin Kings

organization from early in January 1999 until his impris-

onment on state drug charges in January 2001. He also

maintained a residence on the LCO Reservation from

which crack was sold to retail customers. After his release

from state prison in October 2002, he resumed crack-

cocaine trafficking (there was evidence that he remained

involved in the conspiracy while he was in prison), and

this continued until his arrest on the charges in this case

in August 2003. Apart from the basic concessions made

in his guilty plea, the specifics of Gregorio’s role in the

conspiracy—and hence, the evidentiary basis for the

district court’s drug-quantity findings, which he chal-

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 5

06-1963, 06-2268, 06-2333 & 06-2594

lenges—were established largely through the statements

and trial testimony of his wife, Spring Lasieur Acosta.

Spring, a “Latin Queen,” was involved in the LCO Latin

Kings drug conspiracy essentially from its inception.

In 1997 Spring Lasieur met and started dating cocon-

spirator Jorge Barragan, a member of the Milwaukee

Latin Kings. Through him she met coconspirator Florentino

Castillo, also a Latin Kings gang member, and cocon-

spirator Ernesto Estrada III, Barragan’s cousin. In late 1998

or early 1999, Barragan, Castillo, and Estrada began

making regular trips to the LCO in connection with the

establishment of a “region” between the Milwaukee and

LCO Latin Kings for the distribution of crack cocaine.

Gregorio Acosta, his brother Nicolas Acosta, Barragan, and

Castillo (among others) were initial “regional members” of

the LCO Latin Kings “region.” Spring did not meet

Gregorio, her future husband, until mid-1999; by then

the Milwaukee Latin Kings had established a foothold

on the LCO Reservation and, with LCO Latin Kings

members, were distributing large amounts of crack there.

From January 1999 to August 1999, Spring made reg-

ular drug-running trips with Estrada in furtherance of

the LCO crack-distribution conspiracy, traveling from

Milwaukee to the reservation at least twice a week with

between one and four ounces of “mostly formed co-

caine—crack cocaine” and, on some trips, large quantities

of marijuana. Gregorio moved from Milwaukee to the

LCO sometime in 1999, and in August 1999 Estrada

introduced Gregorio to Spring. At that point, Spring

testified, Gregorio had already been involved in sup-

plying cocaine to the LCO Latin Kings for some time.

From September 1999 to January 2000, Spring and

6 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

Gregorio, occasionally accompanied by Estrada, traveled

between Milwaukee and the LCO two or three times a

week, bringing between three and four ounces of powder

and crack cocaine to the reservation on each trip. In

December 1999 Spring became pregnant with Gregorio’s

child, and the couple married in 2000.

Spring testified that from January 2000 to January 2001,

Gregorio traveled to Milwaukee at least every three

weeks or so, returning to the LCO with between one

and four ounces of cocaine on each trip. Spring and

Gregorio’s residence on the LCO served as a drug house

from which they, Castillo, and Nicolas Acosta would

prepare, package, and sell crack cocaine to users on the

reservation. In March 2000 Gregorio was arrested in

Washburn County, Wisconsin, in possession of 30 grams

of crack. He was released on bond and resumed cocaine

trafficking. In January 2001 he was convicted and sen-

tenced to prison on state drug charges stemming from

the Washburn County arrest. He was released from prison

in October 2002 and resumed selling crack cocaine with

Spring, resupplying as needed from Milwaukee. This

activity continued until his arrest in August 2003.

Various aspects of Spring’s testimony were cor-

roborated by other coconspirators—most notably, ac-

cording to the district court, Candace Radermacher,

Donald Fairbanks, and Sundown Doney (a member of

the LCO Latin Kings), among others. Gregorio’s presen-

tence report (“PSR”) also described controlled buys of

crack from Gregorio at the Lasieur-Acosta drug house

in July 2003, and the recovery of a quarter kilogram of

cocaine that had not yet been “rocked up” (converted

into crack) in their house at the time of Gregorio’s

August 2003 arrest.

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 7

06-1963, 06-2268, 06-2333 & 06-2594

Gregorio argues on appeal that the district court improp-

erly denied him the two-level sentencing guidelines

adjustment for acceptance of responsibility, see U.S.S.G.

§ 3E1.1, because the court considered his objections to

the PSR’s relevant-conduct analysis to be frivolous. The

government initially recommended that the court con-

sider Gregorio’s acceptance of responsibility but with-

drew that recommendation based on his objections to the

PSR. The district court’s decision to deny credit for accep-

tance of responsibility is reviewed for clear error. United

States v. Lister, 432 F.3d 754, 758 (7th Cir. 2005).

The commentary to the acceptance-of-responsibility

guideline suggests that “a defendant who falsely denies,

or frivolously contests, relevant conduct that the court

determines to be true has acted in a manner inconsistent

with acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt.

n.1(a). We have said that “a defendant should not be

denied a reduction for acceptance of responsibility when

he only challenges the legal conclusion that should be

drawn from facts that he has admitted.” United States v.

Booker, 248 F.3d 683 (7th Cir. 2001) (citing United States v.

Purchess, 107 F.3d 1261, 1266 (7th Cir. 1997) (emphasis

added)). Further, in Purchess, we observed that “where

the defendant remains otherwise silent as to relevant

conduct but his lawyer challenges certain facts alleged

in the PSR, we think the court should attempt to ensure

that the defendant understands and approves the argument

before attributing the factual challenges in the argument to

the defendant for purposes of assessing acceptance of

responsibility.” 107 F.3d at 1268. We have recently empha-

sized that Purchess is best understood as requiring the

sentencing court to attempt to clarify the defendant’s

8 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

understanding of relevant-conduct objections only where

there is reason to believe the defendant might be confused

or disagrees with counsel. See United States v. Chen, 497 F.3d

718, 720-21 (7th Cir. 2007); Lister, 432 F.3d at 760.

Gregorio’s objections to the PSR’s relevant-conduct

determination were factual, not legal; he challenged the

drug-quantity amounts attributable to him during differ-

ent phases of the conspiracy. Furthermore, there is

nothing in the record to indicate he was confused about

or disagreed with his counsel’s objections to the PSR’s

relevant-conduct analysis. Judge Crabb asked him if he

had read the PSR and its addendum, and inquired wheth-

er there was anything he objected to that his attorney had

not already raised in his written objections. Gregorio

confirmed that he had read the documents and had nothing

to add. Following lengthy arguments from the government

and Gregorio’s counsel, Judge Crabb credited Spring

Acosta’s testimony, found it corroborated by

coconspirators, and held that a “reasonable and fair

estimate” of Gregorio’s relevant conduct involved “well

in excess of 1.5 kilograms of cocaine base or crack cocaine.”

As we will explain in a moment, this finding is amply

supported by the record. Accordingly, it was not clear

error for the district court to conclude Gregorio had

frivolously contested relevant conduct and deny his

request for the two-level adjustment for acceptance of

responsibility.

Gregorio also claims several due-process violations based

on the district court’s determination of drug quantity.

Gregorio’s argument rests in part on Judge Crabb’s refer-

ence to having sat through the trial of certain other de-

fendants and heard substantial evidence to support a

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 9

06-1963, 06-2268, 06-2333 & 06-2594

finding of 1.5 kilograms of crack. Gregorio takes this to

mean that the district court relied on information unavail-

able to him and thus deprived him of notice and the

opportunity to respond. The government notes in response

that before sentencing, Gregorio was provided all the

excerpts of trial testimony on which the government

intended to rely for the determination of relevant conduct.

Gregorio acknowledges this, but suggests that Judge

Crabb’s comment might mean she considered other

parts of the trial testimony not available to him. This is

sheer speculation, and in any event, of no consequence;

the district court does not violate the due-process rights

of a coconspirator who pleads guilty by relying, for sen-

tencing purposes, on evidence presented at the trial of

coconspirators. Gregorio was on notice that under the

sentencing guidelines, he would be held responsible for

the relevant conduct of his coconspirators if reasonably

foreseeable to him (more on this point later). See U.S.S.G.

§ 1B1.3(a)(1)(B). We reject this aspect of Gregorio’s

due-process argument.

Gregorio also contests the reliability of the evidence

related to drug quantity, framing his argument as a

due-process challenge. See United States v. McEntire,

153 F.3d 424, 435-37 (7th Cir. 1998); United States v.

Townsend, 73 F.3d 747, 751 (7th Cir. 1996) (“[A] defendant

has a due process right to be sentenced on the basis of

accurate information.”). “Due process is specifically

satisfied when the district court determines the quantity

of drugs attributable to a defendant by a preponderance

of the evidence . . . [using information that] has ‘suf-

ficient indicia of reliability to support its probable accu-

racy.’ ” Townsend, 73 F.3d at 751 (quoting United States v.

10 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

Ewers, 54 F.3d 419, 421 (7th Cir. 1995) (other citations

omitted)). Here, the district court relied primarily on the

trial testimony of Spring Lasieur Acosta, as corroborated

by Candace Radermacher and other coconspirators.

(Spring Acosta pleaded guilty and was herself held re-

sponsible for more than 1.5 kilograms of cocaine. See

Acosta, 474 F.3d at 1001.) This sort of sentencing infor-

mation plainly carries “sufficient indicia of reliability” to

satisfy due-process minimums. We think Gregorio is

using the language of due process to make what is really

a challenge to the factual sufficiency of the district

court’s drug-quantity determination.

The district court’s factual findings regarding drug

quantity are reviewed under the deferential clear-error

standard. United States v. Cross, 430 F.3d 406, 410 (7th Cir.

2005). A factual finding is clearly erroneous “only when,

on the entire evidence, the reviewing court is left with

the definite and firm conviction that a mistake has been

committed.” United States v. Johnson, 227 F.3d 807, 813

(7th Cir. 2000) (quotations omitted). Drug quantity for

purposes of determining the applicable sentencing guide-

line may be established by the use of reasonable estimates.

United States v. Joiner, 183 F.3d 635, 640 (7th Cir. 1999). In

the case of jointly undertaken criminal activity, the sen-

tencing guidelines direct that the relevant-conduct deter-

mination should take account of “all reasonably foresee-

able acts and omissions of others in furtherance of

the jointly undertaken criminal activity,” see U.S.S.G.

§ 1B1.3(a)(1)(B), whether or not charged as a conspiracy.

Booker, 248 F.3d at 688. This requires the sentencing

court to “assess the reasonable foreseeability of [the drug

sales of other conspiracy members], inquiring into the

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 11

06-1963, 06-2268, 06-2333 & 06-2594

scope of the criminal activity the defendant agreed to

undertake jointly.” United States v. Brumfield, 301 F.3d

724, 733 (7th Cir. 2002).

The government asserted (consistent with the PSR’s

recommendation) that Gregorio should be held responsible

for more than 1.5 kilograms of crack, for a base offense

level of 38, see U.S.S.G. § 2D1.1 (2005), based on Spring

Lasieur Acosta’s testimony about the amounts trafficked

during several distinct time periods before Gregorio was

imprisoned on state drug charges in January 2001. The first

time period commenced in January 1999 when the Latin

Kings first began to run cocaine from Milwaukee to the

LCO for distribution on the reservation and ran through

August 1999 when Spring was introduced to Gregorio

and began to transport drugs with him. Spring testified

that she and Estrada made at least two trips per week

during this time frame, carrying between one and four

ounces of “mostly formed cocaine—crack cocaine.” Using

an average of two ounces per trip and approximately

64 trips from January to August 1999, the total for this

time period was 3,628 grams of crack cocaine.

The second discrete time period identified by the gov-

ernment was September 1999, after Gregorio and Spring

met, to January 2000. Spring testified that during this

time period she and Gregorio, sometimes accompanied

by Estrada, ran drugs from Milwaukee to the LCO ap-

proximately twice a week, carrying three to four ounces

of both powder and crack cocaine each time. Using the

low-end estimate of three ounces and assuming half

was crack cocaine, the total for 32 trips (approximately

16 weeks, two trips per week) was 1,360 grams of crack

cocaine.

12 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

The third time period in the government’s relevant-

conduct calculation was January 2000 through Janu-

ary 2001 when Gregorio was convicted on state drug

charges and began serving a short prison sentence. Spring

testified that during this time period, Gregorio went to

Milwaukee every three weeks and returned with between

one and four ounces of crack and powder cocaine each

time. She also testified that their house on the LCO

was being used as a drug house from which crack cocaine

was regularly sold; cocaine that arrived on the LCO as

powder was converted to crack and resold there. Using

a conservative estimate of two ounces per trip over 17

trips totaled just over 960 additional grams of crack

cocaine.

These quantities together amount to approximately

5,948 grams of crack cocaine, far exceeding the 1.5 kilo-

grams required for offense level 38, as found by the

district court. Even including only those quantities attrib-

utable to Gregorio personally (as opposed to coconspirators

whose trafficking activity was reasonably foreseeable to

him) would total more than 2,320 grams, still well in excess

of the 1.5 kilograms needed for offense level 38. These

calculations are extraordinarily conservative, omitting

entirely the drug quantities Gregorio trafficked after his

release from prison in October 2002, for which there

were no specific estimates but undoubtedly were attrib-

utable to him as relevant conduct.

Gregorio cites a number of infirmities in the record

evidence underlying the district court’s relevant-conduct

determination. First, he points to inconsistent statements

Spring made regarding precisely when she started trans-

porting cocaine to the LCO. This is insufficient to under-

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 13

06-1963, 06-2268, 06-2333 & 06-2594

mine the district court’s findings. By specifically cred-

iting Spring’s testimony, Judge Crabb implicitly disre-

garded inconsistencies as to some of its particulars,

which is not at all uncommon.

Second, Gregorio argues there is no basis to attribute the

amounts trafficked before August 1999 to him. To the

contrary, Gregorio’s involvement in crack-cocaine traffick-

ing at the LCO during this time period was established

by the following evidence: (1) his status as a “boss” in the

Milwaukee Latin Kings and early role as a “regional

officer” of the Milwaukee/LCO Latin Kings “region”

established for the purpose (among others) of crack

distribution on the reservation; (2) Spring’s statements

about Gregorio’s preexisting involvement in the crack

distribution network at the LCO before they met in Au-

gust 1999; and (3) Gregorio’s arrest in Sawyer County

in June 1999 in possession of $3,000 in cash during a

traffic stop by Hayward, Wisconsin police. This is

strong circumstantial evidence of his involvement in the

conspiracy prior to August 1999, making the amounts

trafficked by coconspirators during that time period

reasonably foreseeable to him. In any event, Judge Crabb

did not attribute the drug quantities from all of 1999 to

Gregorio. She began her estimation of relevant conduct

by assuming he was involved in the conspiracy from

June 1999 until “early 2001,” when he went to prison. Even

leaving aside the January-August 1999 quantities in

their entirety, the total remains well in excess of 1.5 kilo-

grams of crack cocaine.

Finally, Gregorio argues that Spring provided vague

and potentially conflicting information about the amount

of crack versus powder cocaine transported from Mil-

14 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

waukee to the reservation. Again, the district court ex-

plicitly credited Spring’s testimony, resolving any dis-

crepancies in favor of accepting the government’s argu-

ment and rejecting Gregorio’s. We “defer[ ] to the district

court’s determination of witness credibility, which can

virtually never be clear error.” United States v. Noble, 246

F.3d 946, 953 (7th Cir. 2001). The estimating method

proposed by the government was reasonable, erring as it

did on the side of understating, not overstating, the

drug quantities attributable to Gregorio. The district

court’s finding that Gregorio Acosta was involved in a

conspiracy to distribute in excess of 1.5 kilograms of crack

cocaine, for a base offense level 38, was not clearly errone-

ous.1

B. Nicolas J. Acosta

Nicolas J. Acosta pleaded guilty to the conspiracy count

in the indictment. He admitted assisting his brother

Gregorio and sister-in-law Spring sell crack from their

house on the LCO reservation during 2000 and part of 2001.

He received a sentence of 151 months, the bottom of an

advisory sentencing guidelines range of 151 to 188 months.

On appeal, Nicolas challenges the district court’s findings

related to drug quantity and other conduct attributed to

1

Gregorio makes one additional argument solely to preserve

the issue. He argues drug quantity should be proved beyond a

reasonable doubt. We have rejected this argument, see United

States v. James, 487 F.3d 518, 528-29 (7th Cir. 2007), and do

so again.

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 15

06-1963, 06-2268, 06-2333 & 06-2594

him for purposes of sentencing. First, Nicolas contends

the district court erred by holding him responsible for more

than 1.5 kilograms of crack cocaine. As with Gregorio

Acosta, the district court based this finding largely on

estimates provided by Spring Acosta. The court found

that Nicolas assisted his brother and sister-in-law in

selling crack from their house between November 1999

and August 2001.

Nicolas attacks Spring’s credibility as a general matter,

but as we have already noted, arguments of this nature

are insufficient to establish clear error. The district court

had the opportunity to assess Spring’s testimony and

evaluate her truthfulness; we defer to the court’s weighing

of the evidence and will not second-guess credibility

determinations. Noble, 246 F.3d at 953.

More specifically, Nicolas points to an inconsistency

in Spring’s estimates of the amount of cocaine brought to

the reservation and the amount sold from the Lasieur-

Acosta residence. To repeat, Spring testified that from

September 1999 to January 2000, she and Gregorio would

go to Milwaukee two or three times per week, returning

to the reservation with three or four ounces of powder

and crack cocaine each time; she also said that from

January 2000 to January 2001, Gregorio would travel to

Milwaukee every three weeks and bring back between

one and four ounces each trip. Her estimates of the

amounts sold from their residence on the reservation

differ; she said they sold about one to two ounces of

powder and crack cocaine from the residence every two

or three weeks. Nicolas seizes on this discrepancy between

the higher volume Spring said she and Gregorio trans-

ported to the LCO from Milwaukee and the amounts

she said they sold from the Lasieur-Acosta residence.

16 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

This discrepancy is not fatal to the district court’s drug-

quantity finding. Nicolas’s PSR stated that Gregorio

distributed “to the LCO Community” the drugs he

brought to the reservation from Milwaukee. This does not

suggest that all the drugs Gregorio transported from

Milwaukee were sold only from the drug house he oper-

ated with Spring. The evidence established that the LCO

Latin Kings operated other drug houses on the reserva-

tion as well and (as we shall see) other members of the

conspiracy were also involved in running drugs from

Milwaukee. The evidence also established that the crack-

cocaine trafficking by the LCO Latin Kings continued—at

the Lasieur-Acosta residence and other locations on the

reservation—after Gregorio went to prison.

Nicolas also contends the district court meant to attrib-

ute to him only the drug amounts sold from the Lasieur-

Acosta residence on the LCO, not the higher drug

amounts Gregorio transported from Milwaukee to the

LCO. Nicolas focuses on the following comment by

Judge Crabb at sentencing: “It’s very possible that you

[Nicolas] didn’t know how much your brother was bring-

ing up [to the reservation] on every occasion, but you

were in a position to know and were up at the reservation

enough to know what was being sold out of the house.”

Nicolas claims this demonstrates that the court meant

to hold him accountable only for amounts sold from the

Lasieur-Acosta residence.

Nicolas reads too much into this single comment by the

district court. As we have explained, “[i]n a drug conspir-

acy each conspirator is responsible not only for drug

quantities directly attributable to him but also for amounts

involved in transactions by coconspirators that were

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 17

06-1963, 06-2268, 06-2333 & 06-2594

reasonably foreseeable to him.” United States v. McLee,

436 F.3d 751, 765 (7th Cir. 2006). By his own admission,

Nicolas was a knowing and active participant in the

larger drug conspiracy at the heart of this prosecution.

He assisted Gregorio and Spring in selling crack and

powder cocaine from their home and, indeed, continued

to facilitate sales there after his brother’s imprisonment in

early 2001. The government argued (and the PSR recom-

mended) that the drug quantities Gregorio transported

to the reservation were reasonably foreseeable to Nicolas;

these amounts, as we have already noted, easily topped

1.5 kilograms.

When considered in context, Judge Crabb’s remark was

simply an acknowledgment that Nicolas may not have

known the precise quantity of drugs Gregorio transported,

but those amounts were nevertheless “reasonably fore-

seeable” to him because he was “in a position to know”

and certainly knew how much was being sold out of

the Lasieur-Acosta residence alone, not to mention else-

where on the reservation. The district court found that

Nicolas was a “committed member” of the Latin Kings

gang who “assisted in a criminal conspiracy to distribute

drugs that devastated the Lac Courte Oreilles Reservation.”

The actions of coconspirators are reasonably foreseeable

by Nicolas if he “demonstrated a substantial degree of

commitment to the conspiracy’s objectives, either through

his words or his conduct.” United States v. Zarnes, 33

F.3d 1454, 1474 (7th Cir. 1994) (quoting United States v.

Edwards, 945 F.2d 1387, 1393-94 (7th Cir. 1991)) (explaining

that the most important factor in determining reasonable

foreseeability is the defendant’s substantial degree of

commitment to the conspiracy’s objectives). Judge Crabb

18 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

emphasized that this conspiracy involved such large

quantities of cocaine and crack cocaine that even if

she limited Nicolas’s relevant conduct to just the year

2000, she would be “forced to conclude that you were

responsible for one and a half kilograms and, you know,

more than that probably . . . [,] a good deal more than

that if we take into account any of the other years that

you were involved.” The district court did not commit

clear error in attributing in excess of 1.5 kilograms of

crack cocaine to Nicolas.

Finally, Nicolas argues that the district court should

have given him a four-level reduction under U.S.S.G.

§ 3B1.2 for being a “minimal participant” in the con-

spiracy, instead of just the two-level “minor participant”

reduction he received. We review this determination for

clear error. United States v. Peterson-Knox, 471 F.3d 816, 824

(7th Cir. 2006); United States v. Hankton, 432 F.3d 779, 793

(7th Cir. 2005). The commentary to § 3B1.2 describes a

minimal participant as one who “plays a minimal role in

concerted activity” as evidenced by his “lack of knowl-

edge or understanding of the scope and structure of the

enterprise and of the activities of others.” U.S.S.G. § 3B1.2

cmt. n.4. The commentary further instructs that a down-

ward adjustment based on a defendant’s minimal partici-

pation is to be applied “infrequently.” Id. A minor partici-

pant, in contrast, is one “who is less culpable than most

other participants, but whose role could not be described

as minimal.” Id. at cmt. n.5.

As we have already discussed, although the district

court noted that Nicolas may not have known the

precise quantity of cocaine his brother Gregorio was

bringing to the LCO, he was “in a position to know” and

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 19

06-1963, 06-2268, 06-2333 & 06-2594

was “up at the reservation enough to know what was

being sold out of the house.” The court noted that al-

though Nicolas was “less involved in the conspiracy

than other participants,” he was involved for “a consider-

able period of time,” actively assisting “in the conspiracy

between November 1999 and August 2001.” Even after

his brother went to prison, Nicolas continued to sell

crack at the Lasieur-Acosta residence together with

coconspirators Pedro Zamora, Donald Fairbanks, Castillo,

and Barragan. The district court’s decision to award the

two-level “minor participant” adjustment rather than the

four-level “minimal participant” adjustment was not

clearly erroneous.

C. Donald Fairbanks

Donald Fairbanks pleaded guilty to counts 2 and 3 of the

indictment, admitting to maintaining a crack house and

distributing cocaine base. Like the other defendants, the

district court held Fairbanks responsible for in excess of

1.5 kilograms of crack cocaine. Fairbanks received a

guidelines adjustment for substantial assistance to the

government, which reduced his advisory guidelines

range to 235 to 293 months (from an original range of 360

months to life). He was sentenced to the bottom of the

range, 235 months.

Fairbanks challenges the district court’s drug-quantity

determination, arguing that the district court “indiscrimi-

nately” held him responsible for the activities of others in

“a murky, undefined conspiracy.” His argument relies

heavily on United States v. Bullock, 454 F.3d 637 (7th Cir.

2006), but that case is readily distinguishable. In Bullock,

20 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

the defendant was convicted of distributing heroin and

was held responsible for relevant conduct related to a

crack-distribution conspiracy carried out by other mem-

bers of his criminal gang. It was not self-evident why

the crack conspiracy’s operations should be attributed to

the defendant because his criminal activities took place

in a different location and at a different time; in addition,

the defendant’s PSR concluded that there was no direct

evidence linking the defendant to the conspiracy.

Here, in contrast, the PSR reported—and this was not

disputed—that Fairbanks was a longtime member of the

LCO Latin Kings and in 2000 and part of 2001, held the

position of Cacique (the number two position) in the

gang. He attended demos at which members of the gang

discussed drug resupply needs and decided who would

distribute the drugs. He collected and distributed drug

money and referred customers to a coconspirator

multiple times. With Pedro Zamora and John and

Candace Radermacher, he cooked, packaged, and sold

crack and otherwise helped operate the Yvonne Dennis

drug house on the LCO reservation. During the two-year

period from 2000 to 2002, two runners alone—Jacqueline

Martinson and Rebecca Corbine—provided the LCO Latin

Kings with at least one ounce of cocaine per week in the

form of crack and powder. The powder cocaine was

cooked into crack for resale from the Yvonne Dennis crack

house. There is much more, but this summary is sufficient

to demonstrate Fairbanks’s integral role in the conspiracy.

The foregoing facts, adopted by the district court from

the PSR, were derived from statements and testimony

of Spring Acosta, Candace Radermacher, Martinson,

Corbine, Dennis, and other coconspirators. The district

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 21

06-1963, 06-2268, 06-2333 & 06-2594

court’s finding that Fairbanks was responsible for in ex-

cess of 1.5 kilograms of crack cocaine was not clearly

erroneous.

Fairbanks next challenges the district court’s findings

regarding his use of underage sellers and the application

of a weapons enhancement. Fairbanks received a guide-

lines enhancement under U.S.S.G. § 3B1.4 for using

minors to commit his crimes. The minors, or “shorties” as

they are called in Latin King parlance, were adolescents

who aspired to become full members of the Latin Kings.

Gang members used these wannabes for various purposes,

including to sell crack cocaine. The district court found

Fairbanks was responsible for using two minors iden-

tified in the PSR as Ray Quagon and Michael Blackdeer.

We recently elaborated on what it means to “use” a

minor for purposes of receiving the use-of-a-minor en-

hancement under § 3B1.4 in the related LCO Latin Kings

case involving Spring Acosta and Candace Radermacher.

See Acosta, 474 F.3d at 1003. In Acosta, we concluded

that insofar as § 3B1.4 contemplated an individualized

enhancement, it was intended to punish “the particular

behavior of individual members of a conspiracy.” Id. That

is, to receive the enhancement, the defendant himself

must have used minors in the commission of his crime. Id.

Fairbanks’s argument—a lone paragraph without any

citation to case law—is that “the evidentiary basis, as

attested to by the ‘shorties’ themselves, is that Fairbanks

never utilized them, period.” While it is true that Quagon’s

and Blackdeer’s statements do not specifically reference

Fairbanks, they also do not affirmatively deny working

with him. The PSR elsewhere substantiates Fairbanks’s

personal use of these shorties: Martinson reported that

22 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

Fairbanks supplied crack to others, specifically including

Quagon and Blackdeer, for redistribution on the reserva-

tion. Distributing drugs directly to minors for further

distribution qualifies as the type of personal use of a

minor warranting application of the use-of-a-minor

enhancement under § 3B1.4.

This leaves Fairbanks’s claim that the district court

improperly added a two-level dangerous-weapon en-

hancement under U.S.S.G. § 2D1.1(b)(1). A sentencing

court properly adjusts a sentencing guidelines range

for weapon possession “if the weapon was present,

unless it is clearly improbable that the weapon was con-

nected with the offense.” U.S.S.G. § 2D1.1 cmt. n.3. Once

the government has proved possession, the defendant

must show it is clearly improbable that the weapon

was connected with the offense. United States v. Johnson,

289 F.3d 1034, 1042 (7th Cir. 2002). Contrary to Fair-

banks’s suggestions, the court need not have found that

Fairbanks himself possessed or used a weapon—here,

multiple firearms. He is considered to have “possessed”

a firearm if coconspirators possessed firearms in further-

ance of the conspiracy and Fairbanks could have reason-

ably foreseen the coconspirators’ possession. United States

v. Harris, 230 F.3d 1054, 1057 (7th Cir. 2000). The PSR

identifies numerous coconspirators who possessed firearms

and had multiple contacts with Fairbanks, including the

Radermachers, Corbine, and Quagon. The application of

the two-level weapon enhancement was not clear error.

D. Jorge Barragan, Jr.

Jorge Barragan, Jr., went to trial and was found guilty on

the conspiracy count. The district court found him respon-

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 23

06-1963, 06-2268, 06-2333 & 06-2594

sible for in excess of 1.5 kilograms of crack, for a base

offense level of 38, and added the two-level weapon

enhancement, yielding (when combined with his lengthy

criminal history) an advisory guidelines range of

360 months to life. Barragan was sentenced to 312

months, the bottom of the advisory range minus the time

he had already spent in custody. On appeal, Barragan

challenges the district court’s drug-quantity determina-

tion and the application of the weapons enhancer.

The district court found Barragan responsible for more

than 1.5 kilograms of crack cocaine, in accordance with the

recommendation in the PSR, based on the significance of

his role in the conspiracy. Barragon, a member of the

Milwaukee Latin Kings, began dating Spring Lasieur in

1997, and by late 1998 was traveling regularly to the LCO

with her and selling marijuana on the reservation. In late

1998 or early 1999, the Milwaukee and LCO Latin Kings

began to set up their “region” for the purpose of distribut-

ing cocaine on the reservation; as we have already noted,

Barragan was an early “regional member” of this organiza-

tion. He started dating Jacqueline Martinson in late 1999

or early 2000, and the two began to transport powder and

crack cocaine from Milwaukee to the LCO on a regular

basis. Martinson gave birth to Barragan’s child in Decem-

ber 2000, but continued to make Milwaukee/LCO cocaine

resupply runs for him in 2001 while Barragan sold crack

from the Lasieur-Acosta residence after Gregorio Acosta

went to prison in January 2001. Evidence at trial also

established that Barragan cooked powder cocaine into

crack at a drug house operated by Richard Saddler, a

coconspirator who was convicted in a separate case.

Barragan was imprisoned on a gun charge in December

2001, but referred Martinson to a new source of cocaine

24 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

from prison so she could continue the supply of drugs

to the LCO crack conspiracy.

Barragan conceded for sentencing purposes certain drug

quantities relating to specific incidents of distribution

involving coconspirators Castillo, Corbine, Fairbanks, and

Gregorio Acosta; these quantities totaled 171.75 grams

of crack, and we need not discuss this amount any fur-

ther. Martinson testified to making approximately 12

trips with Barragan from Milwaukee to the reservation

in 2000, carrying a half-ounce to an ounce each of powder

and crack cocaine on each trip. The government reasonably

suggested using the low-end estimate of a half-ounce of

crack per trip, for a total of just over 170 additional grams

of crack. Martinson’s drug runs for Barragan in 2001

involved similar amounts; Candace Radermacher (who

replaced Fairbanks as Cacique sometime that year) esti-

mated their frequency at about three a month. Thirty-six

trips at a half-ounce of crack per trip raised the total by

an additional 510 grams of crack.

The government also argued that the crack amounts

transported by Gregorio Acosta from Milwaukee to the

LCO from January 2000 to January 2001 were reasonably

foreseeable to Barragan based on his prominent role in

and awareness of the operation of the conspiracy. This

added just over 960 grams of crack to the drug-quantity

total. Finally, the government argued Barragan should

be held accountable for the crack Martinson supplied to

the conspiracy from January 2002 to May 2002 because he

referred her to an alternative source for this time period

while he was in prison. Martinson testified to approxi-

mately 20 resupply trips during this period involving

two to six ounces of powder and crack cocaine each trip.

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 25

06-1963, 06-2268, 06-2333 & 06-2594

Again using the low-end estimate of two ounces of crack

per trip, this added another 1,134 grams, for a grand

total of 2,949.75 grams of crack cocaine.

The district court did not fix the drug quantity quite

so specifically, but its finding that Barragan was in-

volved in trafficking in excess of 1.5 kilograms of crack

was not clearly erroneous. Barragan attacks the govern-

ment’s method of estimating crack (as opposed to powder)

amounts, but we have already concluded that it under-

stated rather than overstated drug quantity and was

therefore reasonable. Like Gregorio Acosta, Barragan

also challenges the reliability of the witnesses’ testimony,

but again, we defer to the district court’s evaluation of

witness credibility and the weight of the evidence. Finally,

Barragan contests the inclusion of Martinson’s drug-

running in 2002, while he was in custody, as not reasonably

foreseeable to him. We disagree, but even excluding

those amounts leaves a drug-quantity total in excess of

1.5 kilograms of crack. Given the scale of this conspiracy,

we think this is a very conservative estimate. We reject

Barragan’s challenge to the district court’s drug-quantity

findings.

Barragan’s last argument concerns his weapon enhance-

ment under U.S.S.G. § 2D1.1(b)(1). Barragan was

stopped by police on December 10, 2001; the police

searched his van and found a disassembled machine gun

and two revolvers. It is undisputed the machine gun

was owned by the Latin Kings. Barragan argues there

was no evidence the guns were related to the sale of drugs.

This is not so; there was plenty of circumstantial evid-

ence. The guns were found during the time frame of the

conspiracy, one of the weapons was owned by the gang

26 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

responsible for the illicit activities of the drug con-

spiracy, and the guns were found in Barragan’s van when

he was making a trip from the LCO to Milwaukee, where

the LCO Latin Kings regularly obtained its supply of drugs.

The burden is on Barragan to show that it was “clearly

improbable” that the guns were connected to the conspir-

acy, and he has failed to discharge that burden.

E. Ernesto Estrada III

The jury found Ernesto Estrada III guilty of conspiracy,

and he was sentenced to 292 months in prison. As we

have already discussed, he was an early participant in

the conspiracy, making frequent drug runs with Spring

Lasieur from Milwaukee to the LCO between January

and August of 1999 and, more intermittently, from Septem-

ber 1999 to January 2000 with Spring and Gregorio Acosta.

On appeal, Estrada challenges only the district court’s

drug-quantity finding. As with the other defendants, the

district court found Estrada responsible for in excess of

1.5 kilograms of crack. Estrada’s points of error resemble

those we have already rejected; we need not repeat them

here. At the very least, Estrada was directly responsible

for transporting 3,628 grams of crack to the LCO from

January to August 1999—much more if the trips between

September 1999 and January 2000 are counted. The district

court’s drug-quantity finding was not clearly erroneous.

F. Florentino Castillo

The jury convicted Florentino Castillo of conspiracy, and

he was sentenced to a term of 322 months, the bottom

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 27

06-1963, 06-2268, 06-2333 & 06-2594

of the applicable guidelines range of 360 months to life

minus the time he spent in state custody for related con-

duct. On appeal, Castillo purports to adopt various argu-

ments of his coappellants, but makes no effort to apply the

relevant legal standards or analysis to his particular

circumstances. Absent this necessary development, his

arguments are waived. See United States v. Turcotte, 405 F.3d

515, 536 (7th Cir. 2005).

To the extent Castillo is mounting a challenge to the

district court’s drug-quantity finding similar to those of

his codefendants, we reject it for the reasons we have

already stated. The evidence at trial established that

Castillo’s involvement in this conspiracy began in 1998

with frequent trips from Milwaukee to the LCO as the

Milwaukee/LCO Latin Kings crack distribution “region”

was being established. While Spring Lasieur, Estrada,

and Gregorio Acosta were making drug runs from Mil-

waukee to the LCO in 1999 and 2000, Castillo and Estrada

were selling the crack cocaine to users at parties on the

reservation. Beginning in January 2001 when Gregorio

went to prison, Castillo sold crack from the Lasieur-Acosta

drug house. In 2002 he began to supply Jacqueline

Martinson and Rebecca Corbine with powder and crack

cocaine for transport from Milwaukee to the LCO. He

continued to be a source of cocaine resupply for the

conspiracy through the spring of 2003 from dealers in

Milwaukee and Minneapolis. Given the duration and

scale of this conspiracy and the significant and ongoing

role Castilllo played in it, the district court’s drug-quantity

finding of in excess of 1.5 kilograms of crack cocaine

was not clearly erroneous.

28 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

G. Pedro Zamora

The jury found Pedro Zamora guilty of the conspiracy

count and one count of maintaining a drug house for

his role in operating the Yvonne Dennis crack house. He

was sentenced to a term of 360 months on the conspiracy

count, the bottom of the applicable guidelines range of

360 months to life, and a concurrent 240 months for the

conviction for maintaining a drug house.

Zamora first challenges the district court’s denial of

his Rule 29 motion for acquittal based on insufficient

evidence that he maintained a drug house in violation of

21 U.S.C. § 856(a)(1). Our review of a district court’s

denial of a Rule 29 motion is de novo. See United States v.

Hendrix, 482 F.3d 962, 966 (7th Cir. 2007). Zamora’s burden

on appeal is a heavy one; he must convince this court

that even drawing all inferences in the light most favor-

able to the government, no rational trier of fact could

have found him guilty beyond a reasonable doubt. Id.

While Zamora concedes he sold drugs with the

Radermachers from Yvonne Dennis’s residence, he claims

there was insufficient evidence that he “maintained” the

drug house. See United States v. Banks, 987 F.2d 463, 466

(7th Cir. 1993) (stating that to prove a violation under

§ 856(a), the government must show that the defendant

(1) knowingly (2) opened or maintained his home (3) for

the purposes of manufacturing, distributing, or using

crack). Zamora stayed there on and off for almost seven

months rent free. During that time, he cooked, packaged,

and sold crack to customers who came to the house; he

also directed Sasha Dennis (Yvonne’s daughter) to do the

same. On occasion he provided Yvonne Dennis with

crack for her personal use.

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 29

06-1963, 06-2268, 06-2333 & 06-2594

A variety of factual scenarios may amount to “main-

taining” a drug house under § 856(a). For example, an

individual “maintains” a drug house if he owns or rents

premises, or exercises control over them, and for a sus-

tained period of time, uses those premises to manufacture,

store, or sell drugs, or directs others to those premises

to obtain drugs. See, e.g., United States v. Morgan, 117

F.3d 849 (5th Cir. 1997); see also United States v. McCullough,

457 F.3d 1150 (10th Cir. 2006) (defendant “maintained”

premises she admitted to owning, using as her primary

residence, and at which drugs were located); United States

v. Scull, 321 F.3d 1270 (10th Cir. 2003) (defendant “main-

tained” premise he owned where drugs were manufac-

tured and packaged). By contrast, merely living in a

house used for drug operations is insufficient. United

States v. Clavis, 956 F.2d 1079 (11th Cir. 1992). Zamora

obviously did not own the premises in question, but that

is not dispositive of whether he maintained them. See, e.g.,

United States v. Basinger, 60 F.3d 1400 (9th Cir.

1995) (defendant “maintained” premises for purposes of

§ 856(a) where he was the only resident and caretaker of

property on which he lived during the winter with

access to drug-laboratory shed); United States v. Wood, 57

F.3d 913 (10th Cir. 1995) (defendant maintained drug

premises even though he did not own house and only

lived there for two months in summer, but he controlled

the room where he resided and stored drugs there).

Zamora was far more than a casual visitor. See Morgan, 117

F.3d at 857; United States v. Verners, 53 F.3d 291, 295-96

(10th Cir. 1995).

Zamora argues that he lived at the Dennis residence

because he had nowhere else to stay and, for a time, was

30 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

dating Sasha, Yvonne Dennis’s daughter. To the extent

Zamora is suggesting that he cannot be guilty of main-

taining the crack house at Yvonne Dennis’s residence

because he had other innocent reasons for living there,

the jury was entitled to conclude otherwise. He also

argues that he sold drugs elsewhere on the reservation,

but we fail to see how this is relevant to whether he

maintained the Dennis residence for the purpose of

distributing crack. His drug dealing at other locations on

the reservation is irrelevant provided that buyers knew

they could obtain drugs from him at Dennis’s house

and sought him out there.

Though he did not pay rent, Zamora did provide free

crack occasionally to Yvonne Dennis, the owner of

the house. The jury could have reasonably inferred

these transactions were a sort of quid pro quo for the use

of the premises. He stayed overnight at the house—not

continually, but on a sustained periodic basis—for

seven months. Yvonne Dennis testified Zamora regularly

dealt drugs from her front door; Sasha said he would

also deal from the living room or a bedroom window.

Sasha further testified that if Zamora had somewhere to

go, he would leave crack for her to sell. Though Yvonne

Dennis exercised ultimate control over the premises,

she allowed Zamora to exercise sufficient dominion over

the house so as to conduct regular drug transactions there.

These facts were sufficient for the jury to find that

Zamora maintained the Dennis drug house in violation

of § 856.

Zamora also challenges the denial of his Rule 33 motion

for a new trial based on the district court’s refusal to

allow full cross-examination of certain witnesses testi-

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 31

06-1963, 06-2268, 06-2333 & 06-2594

fying against Zamora. We review such rulings for abuse

of discretion. United States v. Walton, 217 F.3d 443, 450

(7th Cir. 2000). Zamora’s argument is based on informa-

tion provided by Spring Lasieur Acosta and Candace

Radermacher regarding an arson fire at a residence on

the LCO. Though wholly unrelated to this case, the sub-

ject of the fire came up during Spring’s and Candace’s

interviews with the FBI, but the district court did not

allow the subject to be explored before the jury.

In their interviews with the FBI, Spring and Candace

gave varying answers to questions about who set the

fire. Spring identified two different people before settling

on a third; Candace initially claimed she did not know

the arsonist’s identity, though she later named the

same person as Spring. Zamora thinks these vacillations are

evidence of Spring’s and Candace’s general lack of credibil-

ity and his counsel should have been allowed to impeach

these witnesses with their statements about the fire. We

disagree. As the district court noted, defense counsel had

more than sufficient opportunity to impeach the witnesses’

credibility. Allowing cross-examination into the origins of

the arson fire—particularly given its lack of relevance to

the events at issue in this prosecution—would have

sidetracked the trial and risked confusing the jury. The

district court did not abuse its discretion by excluding this

line of questioning.

Finally, Zamora argues that the district court failed to

properly consider the sentencing factors of 18 U.S.C. § 3553.

Sentences within a properly calculated guidelines range are

entitled to a presumption of reasonableness on appeal. Rita

v. United States, 127 S. Ct. 2456, 2459 (2007); United States v.

Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Zamora asked

32 Nos. 06-1519, 06-1757, 06-1777, 06-1801,

06-1963, 06-2268, 06-2333 & 06-2594

for a below-guidelines sentence and now attacks the

reasonableness of the sentence he received. He claims

that his immaturity and youth warranted a below-guide-

lines sentence.

Zamora’s argument essentially asks us to consider

factors that did not persuade the district court in the first

instance. Such a request is beyond the scope of reason-

ableness review. “Our review is deferential to the district

court’s judgment; ‘the question is not . . . what sentence

we ourselves might ultimately have decided to impose

on the defendant.’ ” United States v. Newsom, 428 F.3d

685, 686 (7th Cir. 2005) (quoting United States v. Williams,

425 F.3d 478, 481 (7th Cir. 2005)). Judge Crabb gave

specific consideration to a variety of appropriate factors,

including Zamora’s age, his voluntary participation in

the charged crimes, his intermediate role in the drug

dealing, his use of minors, his attendance at gang

meetings, and the need for incapacitation. Zamora’s

within-guidelines sentence is presumed reasonable on

appeal, and he has failed to rebut the presumption.2

H. Robert G. Smith

Robert G. Smith pleaded guilty to the conspiracy count

charged in the indictment and, after application of

several downward adjustments to the advisory guide-

lines range, was sentenced to 125 months, just above the

statutory minimum of 120 months and within the ap-

2

Zamora, like Gregorio Acosta, makes the additional argument,

solely to preserve it, that drug quantity should be proved

beyond a reasonable doubt. We again reject this argument. See

n.1, supra.

Nos. 06-1519, 06-1757, 06-1777, 06-1801, 33

06-1963, 06-2268, 06-2333 & 06-2594

plicable guidelines range of 120 to 125 months. His attorney

filed an Anders brief in support of his motion to withdraw

as Smith’s appointed appellate counsel, and Smith did not

file a response to the brief. We have reviewed counsel’s

Anders brief and agree there are no nonfrivolous issues for

appeal. The district court properly calculated the sentenc-

ing guidelines range, did not clearly err in its factual

findings in the determination of relevant conduct, properly

considered the applicable guidelines range, and imposed

a reasonable sentence after giving due consideration to the

§ 3553(a) factors. Accordingly, we grant Smith’s counsel’s

motion to withdraw.

III. Conclusion

Pedro Zamora’s conviction and sentence are AFFIRMED.

The sentences of Gregorio Acosta, Nicolas Acosta, Donald

Fairbanks, Jorge Barragan, Ernesto Estrada, and Florentino

Castillo are AFFIRMED. The motion to withdraw by

Robert Smith’s counsel is GRANTED.

USCA-02-C-0072—7-15-08