Judges: Per Curiam
Filed: Feb. 11, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued January 23, 2009 Decided February 11, 2009 Before WILLIAM J. BAUER, Circuit Judge TERENCE T. EVANS, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 07-2808 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Illinois, Eastern Division. v. No. 04 CR 1029 FE
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued January 23, 2009 Decided February 11, 2009 Before WILLIAM J. BAUER, Circuit Judge TERENCE T. EVANS, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 07-2808 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Illinois, Eastern Division. v. No. 04 CR 1029 FER..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 23, 2009
Decided February 11, 2009
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 07‐2808
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District
of Illinois, Eastern Division.
v.
No. 04 CR 1029
FERMIN RODARTE,
Defendant‐Appellant. Robert W. Gettleman,
Judge.
O R D E R
In November 2004, a confidential source (source) informed Drug Enforcement Agency
(DEA) officials that he had discussed a multi‐kilogram cocaine deal with one Fermin Rodarte,
whom he had met at Hawthorne Racetrack in Chicago. After conducting an investigation into
Rodarte, the DEA equipped the source with a recording device. During a recorded telephone
conversation, Rodarte told the source that he was in the cocaine business with his sisters, Maria
Magana and Marielana Martinez.
On November 23, 2004, Rodarte and Margana met with the source at a parking lot to
arrange the transaction. No deal was consummated on that occasion, but they agreed to meet
at a later time. Two days later, Rodarte contacted the source to tell him that he was ready to
No. 07‐2808 Page 2
proceed with the deal. Rodarte, accompanied this time by Martinez, traveled in Martinez’
vehicle to a prearranged location. When they arrived, the source entered the rear passenger
side of Martinez’ vehicle; Rodarte told him that he would find the cocaine in a Tide detergent
box in the vehicle’s rear. Although Rodarte and the source had agreed to a six‐kilogram
transaction, the detergent box held approximately two kilograms. The source asked Rodarte
and Martinez where the remaining cocaine was, and Martinez assured him that it was nearby.
The source then signaled DEA agents, who arrested Rodarte and Martinez. Later, agents
searched Magana’s residence, where they recovered four and one‐half kilos of cocaine, drug‐
weighing scales and drug‐cutting devices.
Rodarte, Martinez, and Magana were indicted for (1) conspiracy to possess and distribute
500 or more grams of cocaine; (2) possession with intent to distribute two kilograms of cocaine;
and (3) possession with intent to distribute three kilograms of cocaine.
On April 11, 2006, Rodarte pleaded guilty to Count One of the indictment. In the plea
agreement, Rodarte admitted that: he had engaged in a conspiracy with intent to distribute
500 grams or more of cocaine with his sisters, Magana and Martinez; he brought two kilograms
of cocaine with him to the arranged drug deal with the source, but approximately four
kilograms of cocaine remained in Magana’s home; and the agents had recovered the additional
four kilograms of cocaine from Magana’s residence. In total, Rodarte admitted that he and his
co‐defendants possessed approximately 6,500 grams of cocaine.
During his plea colloquy, Rodarte acknowledged that the conspiracy involved at least five
kilograms, but less than fifteen kilograms of cocaine and that, should he be found ineligible for
the safety valve exception, he was subject to a statutory mandatory minimum sentence of ten
years’ imprisonment.
A Presentence Investigation Report (PSR) concluded that Rodarte was not safety valve
eligible based on untruthful statements that he made to the government regarding the drug
conspiracy. The PSR found that Rodarte denied being in a drug business with his sisters,
attempted to minimize Magana’s role in the case, and falsely stated that Martinez had no
involvement in the drug deal or any knowledge that Rodarte was involved in a deal.
The district court found that there were more than five kilograms involved in the offense
and sentenced Rodarte to ten years’ imprisonment. The court also found that although Rodarte
accepted responsibility for his crime, he was not eligible for the safety valve.
On appeal, Rodarte first contends that the district court erred in finding that he was
ineligible for the safety valve, which allows certain first‐time offenders to be sentenced below
an otherwise mandatory statutory minimum if they meet certain requirements. See 18 U.S.C.
No. 07‐2808 Page 3
§ 3553(f). Our review of the district courtʹs findings concerning the factual predicates for the
safety valve is for clear error only. United States v. Alvarado, 326 F.3d 857, 860 (7th Cir. 2003).
In order to qualify for the safety valve, a defendant must meet five requirements. The
only one at issue in this case is the fifth requirement that “not later than the time of the
sentencing hearing, the defendant has truthfully provided to the Government all information
and evidence the defendant has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5).
In his oral post‐plea safety valve interview, Rodarte lied extensively about his sisters’
involvement in the drug conspiracy; in fact, he denied the existence of a conspiracy and claimed
that he was the sole actor in the cocaine ring. The government then provided Rodarte a second
opportunity to set the record straight, arranging an interview between Rodarte and federal
agents at the Wisconsin penitentiary where he was held. Rodarte refused to meet with the
agents, telling them only that he had nothing more to say. Then, three days before his
sentencing, he wrote a letter to the government in which he recanted many of the lies he told
during his verbal proffer, admitting that his sisters were not only aware of the drug transaction,
but were active participants in it. The district court found Rodarte’s attempt to come clean to
be “too little, too late.”
Latching on to these words, Rodarte asserts that a defendant can elect to cooperate with the
government concerning his knowledge of the crime up until the point of sentencing and argues
that the district court erred by failing to adequately weigh his eleventh hour disclosure.
Rodarte is correct that a defendant’s window for cooperating with the government is open
until the time of sentencing. However, it is the substance rather than the timing of Rodarte’s
disclosure which dooms his safety valve eligibility challenge.
Rodarte’s letter was not a complete accounting of the offense. The letter failed to provide
any detail concerning his sisters’ roles in the crime beyond that contained in the plea.
Moreover, the government notes that Rodarte did not divulge the name of his supplier. Before
granting relief under § 3553(f), the court may require a defendant to reveal information
regarding his chain of distribution. United States v. Arrington, 73 F.3d 144, 148 (7th Cir. 1996).
Rodarte was obligated to provide all known information concerning his course of conduct, not
just conduct comprising the criminal charge. Although he provided truthful information in
place of many of the lies he earlier had told, Rodarte failed to carry the burden of proving that
he had fully and truthfully cooperated with the government. We find no clear error in the
court’s refusal to grant Rodarte the safety valve adjustment.
No. 07‐2808 Page 4
Rodarte next argues that the district court erred when it imposed the ten‐year statutory
mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A) because the count in the
indictment to which he pleaded guilty carried only a five‐year mandatory minimum sentence.
We review the district court’s determination for clear error. United States v. Artley, 489 F.3d 813,
821 (7th Cir. 2007).
In Rodarte’s plea agreement, he acknowledged that, in addition to the two kilograms of
cocaine he transported to the drug deal on the day of his arrest, four kilograms of cocaine
remained in Martinez’ home. He further agreed that the offense of conviction carried a
mandatory minimum sentence of 120 months’ imprisonment. However, at sentencing, Rodarte
argued that the five‐year mandatory minimum sentence should apply because he had only
pleaded guilty to a conspiracy to possess with intent to deliver 500 grams or more of cocaine.
He advances this argument again on appeal, claiming that the district court improperly
considered relevant conduct in reaching its decision to apply the ten‐year mandatory minimum
sentence.
The argument is without merit. Rodarte was criminally responsible for the aggregate
amount of drugs comprising the entire conspiracy, not just that which he carried to the
transaction that preceded his arrest. The district court made a factual finding, by a
preponderance of the evidence, that the drug conspiracy to which Rodarte pleaded guilty
involved five or more kilograms of cocaine. In light of that finding, Rodarte’s ten‐year sentence
was mandatory. The district court did not look beyond the conduct that actually resulted in
Rodarte’s conviction; rather, it simply considered the conduct Rodarte claimed responsibility
for by entering his plea. Rodarte was properly sentenced according to the Sentencing
Guidelines and no error occurred.
CONCLUSION
For the reasons stated above, we AFFRIM Rodarte’s conviction and sentence.