United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 7, 2006

Decided December 8, 2006

Before

 Hon. MICHAEL S. KANNE, Circuit Judge

 Hon. TERENCE T. EVANS, Circuit Judge

 Hon. DIANE S. SYKES, Circuit Judge

No. 06-1319

UNITED STATES OF AMERICA, Appeal from the United States District

Plaintiff-Appellee, Court for the Northern District of Illinois,

Eastern Division.

v.

No. 02-CR-35-3

DAVID DIAZ,

Defendant-Appellant. Joan Humphrey Lefkow,

Judge.

O R D E R

David Diaz was convicted of conspiring to possess and distribute cocaine, see

21 U.S.C. §§ 846, 841(a)(1), possessing cocaine with intent to distribute, see id.

§ 841(a)(1), and carrying a gun during and in relation to a drug trafficking crime,

see 18 U.S.C. § 924(c)(1)(A)(i). Diaz pleaded guilty to the two drug charges and was

found guilty on the gun charge after a bench trial; the district court sentenced him

to a total of 120 months’ imprisonment. Diaz filed a notice of appeal, but his newly

appointed counsel now moves to withdraw on the basis that he cannot discern a

nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). Diaz

has not accepted our invitation to respond to counsel’s submission, see Cir. R. 51(b),

so our examination is confined to those potential issues identified in counsel’s

facially adequate brief, see United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997)

(per curiam).

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-1319 Page 2

Diaz was indicted on the drug and gun charges after he was arrested for

participating in a drug deal that took place in the Logan Square neighborhood of

Chicago, Illinois. Although he initially pleaded not guilty to all three charges, he

eventually entered open guilty pleas to the two drug charges and opted for a bench

trial on the gun charge. At trial, the government presented the following evidence

detailing Diaz’s role in the drug transaction:

In December 2001 a paid informant contacted Joel Castaneda to purchase

seven kilograms of cocaine; Castaneda told the informant he could provide the

cocaine after he obtained it from his own drug supplier, Diaz. Over the course of

about a month, the informant spoke with either Diaz or Castaneda over the

telephone to negotiate the deal. During the negotiations Castaneda told the

informant that, because of an attempted kidnapping and “rip-off” during an earlier

drug deal, he and Diaz planned to prevent a similar episode by hiring “security

people” to oversee their drug deal. According to the informant, Castaneda described

the “security people” as “idiots guarding with the guns.” A deal was struck for Diaz

and Castaneda to deliver seven kilograms of cocaine to the informant in exchange

for approximately $147,000. The transaction was to occur incrementally

throughout one day, with only two to three kilograms being delivered at a time.

On the agreed day for the transaction, the informant met Castaneda in a

shopping center parking lot. When the informant entered Castaneda’s car,

Castaneda displayed a 9mm handgun. Castaneda also pointed out that a man

sitting in a car parked in the adjoining space was acting as armed security for the

deal; that man would later be identified as Aureo Almazan. After undercover

agents handed over the $147,000 for the entire seven kilograms of cocaine,

Castaneda told the informant that he and Diaz “were going to try to get at least

two” kilograms for the first stage of the transaction. He then departed to retrieve

the cocaine, and Almazan drove off as well. 

About two hours later, Diaz, Castaneda, and Almazan returned to the

parking lot in a car driven by Diaz. When Diaz showed the informant one kilogram

of cocaine, federal agents moved in and arrested the three men. A search of the car

revealed a hidden compartment containing an additional kilogram of cocaine and

several 9mm hollow-point bullets; the bullets matched the hollow points loaded in

the handgun recovered from Castaneda. Agents also seized a 9mm handgun from

Almazan.

Castaneda and Almazan testified for the government that Diaz knew they

would be armed at the drug deal. In fact, Almazan recounted that Diaz himself

gave Almazan the 9mm handgun he carried to the deal. Castaneda added that he

and Diaz had agreed that they should be armed at the deal, and that Diaz provided

him with bullets for his handgun. 
No. 06-1319 Page 3

The court found Diaz guilty, reasoning that the government had failed to

prove beyond a reasonable doubt that Diaz himself had toted a gun, but did

establish that he was guilty under Pinkerton v. United States, 328 U.S. 640 (1946),

because it was reasonably foreseeable that his coconspirators would be armed. Diaz

challenged this conclusion in a posttrial motion for a judgment of acquittal. He

argued, in essence, that the evidence failed to establish beyond a reasonable doubt

that he could reasonably foresee that his coconspirators would be armed at the drug

deal. The district court denied the motion.

In her presentence investigation report, the probation officer advised the

district court that the government had “concluded” that Diaz “should be held

accountable” only for the two kilograms of seized cocaine even though there had

been “an initial agreement” between the informant and Castaneda “that seven

kilograms of cocaine would be delivered.” In calculating the guidelines

imprisonment range for the drug counts, the probation officer utilized the twokilogram figure in selecting a base offense level of 25. See U.S.S.G. § 2D1.1(c)(6). 

There were no adjustments, so the resulting total offense level of 28 yielded an

imprisonment range of 78 to 97 months given Diaz’s Category I criminal history. 

Diaz was also subject to a mandatory, consecutive term of 60 months for his gun

conviction. See 18 U.S.C. § 924(c)(1)(A)(i); U.S.S.G. § 2K2.4(b). 

At the sentencing hearing, Diaz made several objections to the calculation of

the guidelines range, which the district court overruled. The court then adopted the

recommended 78- to 97-month range, accepting the government’s “conclusion” that

Diaz should be held accountable for conspiring to sell only two kilograms of cocaine,

and not seven. Despite this break, Diaz argued that a sentence below the range

was appropriate to avoid what he characterized as an unwarranted disparity

between his sentence and the sentences of his coconspirators, Castaneda and

Almazon, who received 70 and 78 months, respectively. The district court agreed,

and on both drug counts imposed the minimum mandatory sentence for a drug

offense involving two kilograms of cocaine—60 months’ imprisonment—to run

concurrently. See 21 U.S.C. § 841(b)(1)(B)(ii)(II). To this the court added the

mandatory consecutive 60-month term on the gun count, for a total of 120 months. 

Counsel informs us that Diaz contends that his trial lawyer coerced his guilty

pleas, so counsel first considers whether Diaz could argue that his pleas were

involuntary. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002). A

district court ensures that a defendant’s guilty plea is knowing and voluntary by

complying with the requirements of Fed. R. Crim. P. 11, and because Diaz did not

move to withdraw his guilty pleas in the district court, we would review the district

court’s compliance with Rule 11 for plain error. See United States v. Vonn, 535 U.S.

55, 59 (2002). We agree with counsel that the district court meticulously complied

with Rule 11. As pertinent here, the court asked Diaz under oath (after explaining
No. 06-1319 Page 4

the ramifications of false statements) whether he understood that he had the right

to plead not guilty, to which he responded “yes,” and whether anyone—including his

attorneys—had threatened him or forced him to plead, to which he stated “no.” See

Fed. R. Crim. P. 11(b)(1)(B), (b)(2). The court also inquired whether Diaz was

satisfied with trial counsel and the advice he received, and Diaz responded “yes.” 

Indeed, Diaz’s lead trial attorney requested that the court ask Diaz specifically

whether he was satisfied not only with lead counsel’s performance, but also with the

performance of co-counsel; Diaz again responded “yes.” See Bridgeman v. United

States, 229 F.3d 589, 592 (7th Cir. 2000) (“[Defendant’s] argument that his counsel’s

advice rendered his plea unwitting and involuntary is belied by his own statements

at the change of plea hearing, which are presumed truthful.”). Because the district

court substantially complied with Rule 11 in all other material respects, we agree

with counsel that it would be frivolous for Diaz to challenge on appeal the

voluntariness of his guilty pleas. See United States v. Schuh, 289 F.3d 968, 974 (7th

Cir. 2001).

Counsel next examines whether Diaz could challenge the denial of his

posttrial motion for a judgment of acquittal on the ground that there was

insufficient evidence to support a conviction on the gun count under Pinkerton. Our

review would be de novo. See United States v. Macari, 453 F.3d 926, 936 (7th Cir.

2006). Under Pinkerton, Diaz could be found guilty of violating § 924(c) so long as it

was reasonably foreseeable to him that Castaneda or Almazan would be carrying

guns during and in relation to the drug deal. See United States v. McLee, 436 F.3d

751, 758 (7th Cir. 2006); United States v. Chairez, 33 F.3d 823, 826-27 (7th Cir.

1994). And because the “possession of weapons is all too common in the course of

drug dealing,” United States v. Allen, 930 F.2d 1270, 1275 (7th Cir. 1990), we have

held that the presence of firearms is reasonably foreseeable at drug deals involving

large amounts of drugs and money, see United States v. Williams, 31 F.3d 522, 526

(7th Cir. 1994); United States v. Gutierrez, 978 F.2d 1463, 1468 (7th Cir. 1992). 

Here, the evidence was more than sufficient to support a finding that it was

reasonably foreseeable to Diaz that his cohorts would be armed at the drug deal. 

Castaneda testified at trial that he told Diaz a week before the drug transaction

that he would be armed during the deal, and that Diaz gave him bullets for his

handgun. This testimony was corroborated by the 9mm hollow-point bullets found

in the hidden compartment of Diaz’s car. Moreover, Almazon testified that he got

his gun from Diaz. That is enough to sustain the verdict, but even ignoring the

accomplice testimony, the large sum of money that was involved in the deal for the

seven kilograms of cocaine—$147,000—alone makes the presence of firearms

reasonably foreseeable. See Williams, 31 F.3d at 526 (holding that presence of

firearms at drug deal involving $98,000 worth of cocaine was reasonably

foreseeable); Gutierrez, 978 F.2d at 1468 (“The defendants agreed to sell two

kilograms of cocaine for $60,000; therefore, it was reasonably foreseeable that a gun
No. 06-1319 Page 5

would be carried in relation to the illegal transaction.”). Thus it would be frivolous

for Diaz to argue that the district court erred by denying his motion for a judgment

of acquittal.

Finally, counsel contemplates whether Diaz could argue that his overall

prison sentence is unreasonable. See United States v. Booker, 543 U.S. 220 (2005). 

But Diaz was sentenced to the mandatory minimums for his drug and gun

convictions, see 21 U.S.C. § 841(b)(1)(B)(ii); 18 U.S.C. § 924(c)(1)(A)(i), and “Booker

does not permit district judges to disregard mandatory minimum sentences,” United

States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006); see United States v. Lee, 399 F.3d

864, 866 (7th Cir. 2005) (“Nothing in Booker gives a judge any discretion to

disregard a mandatory minimum.”).

Moreover, we note that Diaz benefitted greatly from the district court’s

finding that the drug conspiracy involved only two kilograms of cocaine—and not

seven. The drug quantity under § 841(b) for a conspiracy is the amount negotiated,

not the amount actually delivered, see United States v. Muniz, 49 F.3d 36, 39 (1st

Cir. 1995); United States v. Pion, 25 F.3d 18, 24-25 & 25 n.12 (1st Cir. 1994); United

States v. Hughes, 970 F.2d 277, 236-37 & 236 n.9 (7th Cir. 1992), and for seven

kilograms of cocaine the minimum mandatory prison sentence is 10 years, see 21

U.S.C. §§ 846, 841(b)(1)(A)(ii)(II), not the five-year minimum term that the district

court imposed, see id. §§ 846, 841(b)(1)(B)(ii)(II). Our review of the record shows

that Diaz and his cohorts agreed to sell the informant a total of seven kilograms of

cocaine incrementally throughout one day, not just the two that were delivered

initially. We thus fail to understand how the government could have “concluded”

that the drug quantity was two kilograms. See Muniz, 49 F.3d at 40; Pion, 25 F.3d

at 24-25 & 25 n.12; Hughes, 970 F.2d at 236-37 & 236 n.9. But since the district

court accepted this conclusion and saved Diaz from, at the very least, an additional

five years in prison, compare 21 U.S.C. § 841(b)(1)(A)(ii)(II), with id.

§ 841(b)(1)(B)(ii)(II), it would be particularly frivolous for him to challenge the

reasonableness of his sentence.

Accordingly, the motion to withdraw is GRANTED, and the appeal is

DISMISSED.