### In the



# United States Court of Appeals

For the Seventh Circuit

Nos. 12

‐ 1501 & 12

‐ 2382

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

J OSE Z UNO

, J R

. and I SMAEL Z UNO

, Defendants

‐ Appellants.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:10

‐ cr

‐ 00444

‐ 1&2

— Samuel Der

‐ Yeghiayan

, Judge.

A RGUED F EBRUARY 11, 2013

— D ECIDED S EPTEMBER 30, 2013

Before E ASTERBROOK

, Chief Judge, and P OSNER and T INDER

,

Circuit Judges.

T INDER

, Circuit Judge. These consolidated criminal sentenc

‐ ing appeals are brought by two brothers, Jose and Ismael

Zuno, who were involved in the distribution of cocaine and

marijuana in the Addison, Illinois area from November 2008

until December 2009. In June 2010, their illicit activities

resulted in federal criminal charges being filed against them.2 Nos. 12

‐ 1501 & 12

‐ 2382

The Zunos were charged with being members of a conspiracy

to possess cocaine and marijuana with the intent to distribute

it. See 21 U.S.C. § 846. Ismael also was charged in nineteen

cocaine distribution counts. See id. § 841(a)(1). His younger

brother, Jose, was charged in twenty

‐ one additional counts:

nineteen for cocaine distribution, see id.

, and two for the use of

a communication facility to commit a drug trafficking offense,

see id. § 843(b). Both brothers had prior felony drug convic

‐

tions, so the prosecution filed an information pursuant to 21

U.S.C. § 851 as to both, triggering for each of them the potential

of a ten

‐ year mandatory minimum term of incarceration.

Ultimately, both Zunos pleaded guilty to the conspiracy count

and Ismael also pleaded guilty to the nineteen distribution

counts. Jose’s plea was entered pursuant to a plea agreement

which included provisions resulting in the dismissal of all of

the other charges against him and the prior conviction informa

‐

tion; he was sentenced to an 80

‐ month term of incarceration.

Ismael’s guilty plea was entered without an agreement with

the government, which is sometimes called a “blind” plea; he

was sentenced to a prison term of 120 months.

In calculating the brothers’ Sentencing Guideline offense

levels at their respective sentencing hearings, the district judge

determined that both brothers were organizers or leaders of a

drug organization that involved five or more participants or

was otherwise extensive pursuant to U.S.S.G. § 3B1.1(a),

resulting in a four

‐ level increase in their base offense levels.

Both Zunos dispute that guideline determination on appeal.

Ismael also challenges the drug quantity attributed to him and

the mandatory minimum ten

‐ year sentence he received

because of the application of the § 851 prior drug convictionNos. 12

‐ 1501 & 12

‐ 2382 3

enhancement. We will relate the facts relevant to these issues

as they were developed in the district court and then discuss

the sentencing challenges raised.

I. BACKGROUND

The Federal Bureau of Investigation (FBI) began an under

‐

cover investigation of Ismael Zuno in April 2008. A law

enforcement officer posed as a cocaine purchaser and from

May 2008 until January 2009, purchased cocaine from Ismael

about nineteen times, with two of those purchases also

including marijuana. It appears that Jose began assisting

Ismael with the operation around November 2008. As time

went on, the investigation expanded to include Jose and

affiliates of the Zunos. In the latter part of the investigation, a

wiretap order for a cell phone used principally by Jose was

issued and numerous phone conversations related to the Zuno

drug trafficking were intercepted.

Twice in 2008, first in late November and then in early

December, Jose delivered cocaine (approximately 55 grams on

each occasion) that the undercover officer had ordered from

Ismael. Apparently unbeknownst to the FBI, the Chicago Police

Department (CPD) was interested in Ismael too, and on

November 16, 2008, the CPD executed a state

‐ court

‐ issued

search warrant for Ismael’s residence. The search yielded

approximately 125 grams of marijuana and a .357 magnum

revolver. Ismael was charged in an Illinois court with the

manufacture/delivery of a controlled substance and possession

of drug paraphernalia and a firearm without having a Firearm

Owner’s Identification Card. He pleaded guilty to the manu

‐4 Nos. 12

‐ 1501 & 12

‐ 2382

facture/delivery charge and was sentenced to one year of

imprisonment.

But that wasn’t the only legal problem Ismael had besides

the FBI investigation. He was also arrested in January 2009 for

multiple counts of murder arising from a shooting (unrelated

to the drug investigation) and was jailed pending trial in Cook

County Circuit Court. Obviously, during that incarceration,

Ismael’s hands

‐ on involvement in the drug distribution efforts

was involuntarily limited, so Jose stepped up to direct the

operation. Part of Jose’s increased involvement began with a

contact he made with the undercover officer who had been

ordering cocaine from Ismael. Jose provided the officer with

his cell phone number for the placement of future cocaine

orders, thus leading to the wiretap. Subsequently, and continu

‐ ing up until December 2009, the undercover officer placed

orders directly with Jose on about sixteen occasions, and the

deliveries were either made or arranged for by Jose, totaling

about 1400 grams of cocaine.

During Ismael’s incarceration, Jose continued to consult

Ismael about their drug business. Two calls in early May 2009

exemplify that continuing involvement. On the first of May,

Jose told Ismael about his concerns regarding a particular drug

customer who had seen Jose’s drug stash. The following day,

Ismael was recorded asking Jose about another regular drug

buyer, and Ismael criticized the prices that Jose was charging

that customer. Later on, in November of that year, Jose

reported to Ismael that a competing drug dealer had been

stealing their customers so Jose had begun stealing that

dealer’s customers. Jose’s plea agreement contained several

relevant admissions, including that he and Ismael “were theNos. 12

‐ 1501 & 12

‐ 2382 5

leaders of the Zuno Drug Trafficking Organization” and that

during Ismael’s incarceration, Jose “repeatedly consulted with

Ismael

... on their drug trafficking operation.”

Ismael and Jose had help in the drug distribution from

friends and family. Their brother

‐ in

‐ law, Juan Rochel, was

their cocaine supplier. The Zunos often received the cocaine

from him on credit, which enabled them to pay the cost of it

after they had redistributed the multiple

‐ ounce quantities to

their various customers, a practice known as “fronting.” From

various intercepted telephone calls between Jose and Rochel,

the investigators learned that Jose would allow Rochel to enter

his house when he was away to make cocaine deliveries.

Rochel would store the cocaine in a cereal box or pots in Jose’s

kitchen and then communicate the location to Jose. For

example, to explain one such delivery, Rochel told Jose that he

should “eat some cereal” when he returned to his residence.

Similarly, when a certain quantity of cocaine Rochel had

delivered was not moving, Rochel was able to ask for a return

of the drugs so he could supply them to another outlet. Rochel

was also aware that Ismael’s girlfriend’s residence was used

for storage of the Zuno drugs.

Another Juan (Juan Zuno), a cousin of the brothers, assisted

them by delivering and picking up cocaine at their direction.

He also served as a driver for Ismael and later Jose when they

were delivering drugs. One of the assignments included

driving Ismael to deliver drugs to a customer who was, in fact,

the undercover officer. On other occasions, Juan Zuno drove

Jose to deliver cocaine to the undercover officer. On one

specific occasion, Juan delivered about 250 grams of cocaine to

the officer to fill an order placed with Jose.6 Nos. 12

‐ 1501 & 12

‐ 2382

Ismael’s girlfriend (Individual D) allowed Jose to store

drugs at her residence. On occasion, she delivered cocaine

from her home to him. On November 6, 2009, a phone conver

‐

sation between Individual D and Jose was intercepted. During

the call, Jose told Individual D to retrieve a box under her bed

and bring him the “little white bag.” He explained that he did

not like driving around with drugs (which he referred to as

“shit”) in his vehicle because he did not have a license. Her

response was “Oh, just this little one?” Zuno also informed

Individual D of certain important developments in the opera

‐

tion. For example, after Juan Zuno’s delivery of the cocaine to

the undercover officer, he was stopped by law enforcement

agents who seized the buy money, $6,740, from him. Later that

day, Jose called Individual D to inform her about the stop.

During that intercepted conversation, Jose also told her that

there were currently no drugs stored at her residence so she

did not have to worry, even though he thought the DEA was

following him around. Her response, “Oh shit,” may have

expressed her anxiety about the situation. When Jose men

‐

tioned to her that all of his buy money had been seized, her

response was “Damn, damn, damn.”

Later in the investigation, Individual D’s home was

searched pursuant to a warrant issued in connection with this

case, and a couple of bags of cocaine (about 53 grams in total)

and five bags of marijuana (totaling 351 grams) were seized

from a safe in her home. The drugs had been stored there by

Jose, a fact confirmed by the recovery of an impression of his

fingerprints from the safe. Still later, Individual D was inter

‐

viewed by the FBI and admitted that she allowed Jose to store

cocaine and marijuana at her home, and that she knew he soldNos. 12

‐ 1501 & 12

‐ 2382 7

marijuana and what she described as small amounts of cocaine.

She also admitted to occasionally taking small bags of cocaine

and marijuana to Jose on request, but she denied knowing that

he would sell the drugs and claimed not to know the contents

of the safe.

The intercepted telephone calls also disclosed that the

Zunos serviced several cocaine buyers who would purchase

quantities of cocaine every two weeks. One in particular,

identified as Individual F, bought about 125 grams from Jose

in mid

‐ December 2009, in a purchase that was brokered by a

person identified as Individual G. It appears that many of the

sales made by the Zunos were also made on credit, to be

funded by future sales in which the Zunos had an interest. For

example, in one telephone conversation between Jose and

Rochel discussing money that Jose owed Rochel for fronted

drugs, Jose indicated that he could currently only repay $1,000

owed (which he referred to as “one”) but that he would “pick

up from

... the little workers” and then would repay Rochel

two thousand dollars, which he called “two dollars.”

Ultimately, the district judge found Jose to be responsible

for the drugs distributed during the conspiracy period: from

November 2008 until December 2009. By contrast, he deter

‐

mined that Ismael was responsible for a larger amount: the

drugs distributed to the undercover officer from May 2008

until early November of that year, plus the drugs distributed

during the conspiracy period because, despite his incarcera

‐

tion, he “remained a member of the conspiracy

... and

... the

drug quantities sold by Jose Zuno and stored by [Ismael’s]

girlfriend at her house were reasonably foreseeable to [him].”8 Nos. 12

‐ 1501 & 12

‐ 2382

II. DISCUSSION

We will first discuss the leader or organizer enhancement

about which both Zunos complain and then turn to Ismael’s

individual objections to the mandatory minimum sentence he

received and the drug quantity attributed to him. The Zunos

contend that the district court erred in determining that their

criminal activity involved five or more participants and in

applying the four

‐ level enhancement under U.S.S.G. § 3B1.1(a).

They argue that a two

‐ level adjustment under § 3B1.1(c) is

appropriate instead. We review the district court’s application

of the guidelines de novo and review its factual determinations

for clear error. United States v. Walsh

, 723 F.3d 802, 807 (7th Cir.

2013). The Zunos do not dispute that they were organizers or

leaders of the offense; they dispute only whether the conspir

‐

acy involved five or more participants and whether they

exercised management or control over five participants.

“A ‘participant’ is someone ‘who is criminally responsible

for the commission of the offense, but need not have been

convicted.’” United States v. Blaylock

, 413 F.3d 616, 618 (7th Cir.

2005) (quoting U.S.S.G. § 3B1.1, cmt. n.1). “[T]his means that

the person ‘ could have been charged,’ even if only as an acces

‐

sory; but ‘mere knowledge of a conspiracy’ is insufficient to

establish that a person was ‘criminally responsible.’” United

States v. Fluker

, 698 F.3d 988, 1002 (7th Cir. 2012) (quoting

United States v. Pabey

, 664 F.3d 1084, 1097 (7th Cir. 2011)); see

also Blaylock

, 413 F.3d at 618 (“What matters is that [the person]

knowingly aided some part of the criminal enterprise.”)

.

The district court did not clearly err in finding that the

conspiracy involved five or more participants: Jose, Ismael,Nos. 12

‐ 1501 & 12

‐ 2382 9

Juan Zuno, Juan Rochel, and Individual D. The defendants do

not dispute that they and Juan Zuno were participants; rather,

they challenge the inclusion of Rochel and Individual D.

However, the evidence establishes that Rochel and Individual

D were participants in the Zuno conspiracy. Rochel often

fronted large quantities of cocaine to the Zunos on credit. The

intercepted telephone calls between Jose and Rochel reveal that

their drug relationship was more involved than Juan simply

serving as a source of cocaine for the Zuno brothers. The high

level of mutual trust evidenced by the phone calls supports a

conclusion of an ongoing relationship involving shared goals.

As for Individual D, she had more than mere knowledge of the

conspiracy and was not just Ismael’s girlfriend. Rather, she

knowingly assisted the Zuno brothers’ organization by

allowing Jose to store drugs at her residence and by occasion

‐ ally delivering cocaine to him at his direction. Arguably, there

were also other participants in the conspiracy—the “little

workers” Jose referenced in a recorded conversation with

Rochel to whom the Zunos fronted drugs for further distribu

‐

tion. And there was also the unnamed broker Individual G

who was involved in the December 2009 cocaine transaction

between Individual F and Jose.

While the Zuno brothers argue that they did not exercise

control over Rochel, that is immaterial. A defendant need not

exercise control over four other participants for the enhance

‐

ment to apply; he “need control only one participant.” United

States v. Hussein

, 664 F.3d 155, 163 (7th Cir. 2011); see also United

States v. Anderson

, 580 F.3d 639, 649 (7th Cir. 2009) (“To qualify

for an enhancement under section 3B1.1, a defendant ‘must

have been the organizer [or] leader

... of one or more other10 Nos. 12

‐ 1501 & 12

‐ 2382

participants’ in the charged criminal activity.”) (emphasis

added) (quoting U.S.S.G. § 3B1.1, cmt. n.2.). And the Zunos

clearly controlled their cousin Juan who delivered and picked

up cocaine for them at their direction as well as Individual D.

The defendants also argue that given the small size of their

criminal enterprise and the limited scope of their planning and

preparation, only § 3B1.1(c) should apply. But as the district

court determined, the guideline does not require any formal

leadership structure or operation. The Zuno brothers’ organi

‐

zation had five or more participants; and the defendants do not

dispute that they were organizers or leaders of that criminal

organization. Thus, § 3B1.1(a) by its terms applies.

We find no clear error in the district court’s determination

that the conspiracy involved five or more participants and no

error in its application of the four

‐ level enhancement under

§ 3B1.1(a) to both Zunos. Thus, we, like the district court, need

not consider whether the Zuno organization was “otherwise

extensive.”

Besides, as to Ismael, it does not matter whether the

guideline applies because it is subsumed by the mandatory

minimum sentence. A district court lacks discretion to impose

a sentence below a statutory mandatory minimum. United

States v. Brucker

, 646 F.3d 1012, 1016 (7th Cir. 2011). Ismael

clearly fits the legal elements for the application of the manda

‐

tory minimum. But there is also good reason to treat him more

harshly. Unlike Jose, he did not reach a plea agreement to

avoid it. We may even assume that the government chose not

to offer him one, and that is an acceptable exercise of prosecu

‐

torial discretion—no improper purpose (like race, gender, etc.)Nos. 12

‐ 1501 & 12

‐ 2382 11

is suggested. See United States v. LaBonte

, 520 U.S. 751, 762

(1997) (noting that whether to file a notice under § 851 is “an

integral feature of the criminal justice system, and is appropri

‐

ate, so long as it is not based upon improper factors”); United

States v. Smith

, 502 F.3d 680, 690–91 (7th Cir. 2007) (noting that

prosecutorial discretion as to what charges to bring “extends

to charges that carry enhanced statutory maximum penalties”).

But even if reasons for this exercise of discretion were

needed, there were plenty: Ismael had a longer involvement in

the relevant drug sales; he continued his involvement in the

conspiracy even while incarcerated; and he stored a firearm

with the drugs—and did so in a household with two children

present. That the prior conviction did not count for purposes

of Ismael’s criminal history is beside the point. See United States

v. Alden

, 527 F.3d 653, 663–64 (7th Cir. 2008) (noting that

enhancement for prior drug conviction was proper even if

based on the same drug conspiracy as the charged conspiracy).

Ismael cannot get the benefit of Jose’s plea agreement, not even

by arguing that a disparity results. It is a disparity that the law

condones.

As for the attribution of the post

‐ incarceration drugs to

Ismael, the evidence established that he had a continued

interest in the drug trafficking operation and its success. Why

else would he continue to get information from Jose about it

and criticize Jose’s pricing? And why would Individual D

continue to provide the stash house and make deliveries on

order if it did not serve Ismael’s purposes? Prior to and at

sentencing, Ismael objected to the drug amount attributed to

him by making a disparity argument only. (“It’s Mr. Zuno’s

position

... that he is being treated differently than his brother12 Nos. 12

‐ 1501 & 12

‐ 2382

who he believes is a co

‐ equal in this enterprise.” Sent. Tr. 3.)

Ismael did not object to the district court’s relevant conduct

findings and disclaimed any argument about the drug

amounts attributed to the whole conspiracy, see Sent. Tr. 5;

therefore he waived error, or at the least forfeited any error, in

which case we review for plain error, see United States v. Salem

,

597 F.3d 877, 884 (7th Cir. 2010).

Although the district court may have focused on the

reasonable foreseeability of Jose’s conduct, it cited to U.S.S.G.

§ 1B1.3(a)(1)(B), and found that “the PSR correctly finds that

[Ismael] is responsible for the drugs sold by Jose Zuno after

[Ismael’s] incarceration as well as the drugs found at [his]

girlfriend’s residence after [he] was incarcerated,” Sent. Tr. 14,

concluding that the “record clearly reflects that [Ismael]

remained a member of the conspiracy in spite of his incarcera

‐

tion,” id. The court’s relevant conduct findings are sufficient

under plain error review. Jose’s cocaine sales that occurred

while Ismael was incarcerated were reasonably foreseeable to

Ismael, were in furtherance of their drug distribution conspir

‐

acy, and occurred within the commission of the conspiracy. We

find no clear error in the district court’s determination of the

quantity of cocaine attributable to Ismael. Besides, any error in

the drug quantity finding was harmless given the application

of the mandatory minimum sentence. See United States v.

Easter

, 553 F.3d 519, 523 (7th Cir. 2009).

III. CONCLUSION

The defendant

‐ appellants’ sentences and the district court’s

judgments are A FFIRMED

.