# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 11, 2008

Decided June 12, 2008

Before

WILLIAM J. BAUER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 07

‐ 1979

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

PEDRO MARTINEZ,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 05

‐ CR

‐ 253

‐ 1

James B. Zagel,

Judge

.

O R D E R

Pedro Martinez sold two ounces of methamphetamine to an informant and another

pound to an undercover agent. Following a bench trial, Martinez was convicted of two

counts of distributing methamphetamine, see 21 U.S.C. § 841(a)(1), and sentenced to a total

of 151 months’ imprisonment followed by 60 months’ supervised release. Martinez filed a

notice of appeal, but his appointed counsel now moves to withdraw under Anders v.

California

, 386 U.S. 738 (1967), because he is unable to discern a nonfrivolous basis for

appeal. Counsel’s brief is adequate, and Martinez has responded under Circuit Rule 51(b).

We limit our review to the potential issues identified by counsel and Martinez. United States

v. Schuh

, 289 F.3d 968, 973

‐ 74 (7th Cir. 2002). 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 07

‐ 1979 Page 2

I.

Martinez defended the illicit sales on the ground that he thought he was working for

the Drug Enforcement Administration. On February 9, 2005, a month before the charged

distributions, DEA agents Lou Gade and Don Rospond interviewed Martinez because

Miguel Ocampo, a known methamphetamine dealer, fingered Martinez as his supplier.

Martinez speaks Spanish and the agents do not, so task

‐ force officer Mario Elias

participated by phone as an interpreter. Martinez testified at trial that the agents threatened

to turn him over to immigration authorities, beat him, or plant drugs on him if he did not

assist them. (Gade, Rospond, and Elias denied making those threats.) But Martinez told the

agents he wasn’t involved in the drug trade and thus could not offer any useful

information. He did, however, give the agents contact information for a man they were

investigating and pointed out the man’s house. The agents never asked Martinez to sign a

formal cooperation agreement, nor did they ask him to initiate a drug deal. Gade gave

Martinez his phone number before the interview ended, but the agent testified that

Martinez never called. (Martinez testified that he tried calling once, but Gade did not pick

up.)

About four days after this interview, Martinez purportedly discovered that Sally

Quinonez, Ocampo’s girlfriend, was cooperating with the DEA. According to Martinez,

Quinonez asked him for help in identifying and buying methamphetamine from dealers the

DEA would want to target. Martinez understood the plan as follows: he would find a

supplier to sell to Quinonez’s acquaintance, “Jay”—whom Martinez said he knew was

working for the DEA—and the DEA would nab the supplier. Martinez testified that he

proceeded with this plan without notifying any DEA agent and despite Quinonez’s warning

that “Gade”—Ocampo’s friend Mike Gade, not DEA agent Lou Gade—was trying to set

him up.

Although Martinez insisted that he had never before touched methamphetamine, he

was able to deliver two ounces on March 7 and a pound on March 18. Martinez testified

that he found a supplier through an associate of Ocampo’s known as “El Tigre.” El Tigre

took Martinez to a bar, where he introduced him to a large

‐ scale dealer known only as

“Angel.” Martinez recounted that he first bought $20 worth of methamphetamine from

Angel, and within a few weeks after that Angel was willing to front the methamphetamine

for the two March transactions, which together totaled $13,500. Martinez explained that he

provided “references” to earn Angel’s trust.

Quinonez, a government witness, denied telling Martinez that she was assisting the

DEA. She testified that she told him that she needed to obtain methamphetamine to pay for

Ocampo’s attorney, and that she had found a buyer named Jay (who was in fact undercoverNo. 07

‐ 1979 Page 3

agent Jay Zbrozck). The government introduced a recording of a phone conversation in

which Quinonez asked Martinez for two ounces of methamphetamine and he quoted her a

price of “12” per ounce. Martinez did not mention his supplier, Angel—the man he says he

was trying to set up—in the phone call. Martinez ended up delivering two ounces to

Quinonez in exchange for $2,000. He testified that Angel did not make the delivery because

he was suspicious of Zbrozck.

On March 17, Zbrozck telephoned Martinez to order a pound of methamphetamine.

During this conversation, which also was recorded, Martinez did not mention Angel, nor

did he tell Zbrozck about Angel’s suspicions. A first attempt to deliver the drugs failed, but

on March 18 Martinez met with Zbrozck and handed him the agreed quantity. At trial

Martinez testified that Angel was close by watching the transaction and would have made

the delivery himself had there not been a “mix up” between them. But at the time he did

not even mention Angel to Zbrozck.

Upon receiving the package, Zbrozck gave the arrest signal. Agents Gade and

Rospond testified that they, along with other officers, arrived wearing vests with “POLICE”

on the front and “DEA” on the back. Martinez fled on foot. He testified that he did so

instinctively. After he was caught and handcuffed, he did not say anything about being a

cooperator.

Once in custody, Martinez received Miranda warnings in English and in Spanish

from Officer Elias. Martinez then dictated a statement and signed it after Elias wrote what

he said in English and confirmed the translation line

‐ by

‐ line with Martinez. He admitted

both of the sales, explained that Angel had fronted the pound of methamphetamine, and

said that he planned to pocket $300 from that sale. The written statement does not mention

Martinez’s purported cooperation with the DEA, although Martinez testified that by the

time he signed the statement he had told the agents that he engaged in the drug deals to

help them nab Angel. Elias and Gade deny that.

In finding Martinez guilty, the district court thought it implausible that as a novice in

the drug trade Martinez was able to meet a large

‐ scale drug supplier and within weeks

persuade him to front Martinez a pound of methamphetamine. The court also viewed

Martinez’s flight from the officers after his delivery to Zbrozck strong evidence that

Martinez wasn’t cooperating and did not believe otherwise. Moreover, the court reasoned

that Martinez’s failure to contact DEA agent Gade before or after the first sale showed that

he didn’t believe he was cooperating. The court added that, even if Martinez had believed

he was working for the DEA, his belief was unreasonable given his testimony that

Quinonez told him that “Gade” was trying to set him up.No. 07

‐ 1979 Page 4

After the verdicts Martinez moved for a judgment of acquittal or, alternatively, for a

new trial. He argued that the district court’s last conclusion was erroneous because the

judge had confused Ocampo’s friend, Mike Gade, with agent Lou Gade, and thus assumed

that Martinez could not reasonably have believed he was working for an agent who was

trying to set him up. Martinez urged the court to enter a judgment of acquittal or at least

reevaluate the evidence independent of the court’s mistake about “Gade.” The district court

acknowledged its mistake but denied the motion. The court explained that, even if Martinez

wasn’t told that a DEA agent was trying to set him up, it still was unreasonable for him to

proceed with the deals knowing that someone was trying to set him up, particularly when, as

Martinez acknowledged, he had not made any formal arrangement with the DEA. The court

clarified, moreover, that the reasonableness of Martinez’s belief was not a critical factor in

the verdicts because Martinez’s entire testimony was not credible.

II.

Counsel and Martinez first consider whether Martinez might challenge the district

court’s handling of his posttrial motion. We agree with counsel that any argument would be

frivolous.

With respect to Martinez’s request for a judgment of acquittal, we would overturn his

convictions only if no rational trier of fact could have found Martinez guilty beyond a

reasonable doubt. See United States v. Beaver

, 515 F.3d 730, 737 (7th Cir. 2008). Here Martinez

admitted that he knowingly distributed methamphetamine; the only contested issue at trial

was whether he reasonably believed that he was acting under the authority of DEA agents.

The district court, perhaps relying on United States v. Talbott

, 78 F.3d 1183 (7th Cir. 1996),

found that the government had disproved Martinez’s public

‐ authority defense beyond a

reasonable doubt. We have since clarified that when a defendant asserts a public

‐ authority

defense to a crime, like 21 U.S.C. § 841(a)(1), which on the element of mental state requires

only proof that he knew about the facts constituting the offense, it is his burden to prove this

excuse by a preponderance of the evidence. See United States v. Jumah

, 493 F.3d 868, 872

‐ 75

(7th Cir. 2007). Thus the trial judge, as the finder of fact, evaluated the evidence under a

standard far more favorable to Martinez than was authorized. But even judged under the

district court’s more generous standard, the evidence overwhelmingly supports the verdicts.

Martinez never entered into a formal cooperation agreement, he never contacted agents

before arranging his deals with Quinonez and Zbrozck, he was able to convince a

methamphetamine supplier to front a significant quantity of drugs, he fled when the agents

arrived after the second deal, and he never told the agents that he thought he was

cooperating. Indeed, the only evidence that supported Martinez’s position—his

testimony—was found not credible by the district court, and we would defer to the court’sNo. 07

‐ 1979 Page 5

finding. See United States v. Biggs

, 491 F.3d 616, 621 (7th Cir. 2007); United States v. McCaffrey

,

181 F.3d 854, 856

‐ 57 (7th Cir. 1999).

As for Martinez’s alternative request for a new trial based on the district court’s

confusion about which “Gade” was trying to set up Martinez, see F ED

. R. C RIM

. P. 33(a), we

are skeptical that Martinez could even argue that he didn’t get exactly what he asked for.

This was a bench trial, and in that context the presiding judge may respond to a motion for a

“new” trial by taking additional evidence and entering a new judgment. See id. In effect,

that is what happened here. The trier of fact did reweigh the evidence, free of its earlier

mistake, and concluded that the verdicts should stand. And even if we characterize the

court’s action as a denial of Martinez’s motion, the verdicts are overwhelmingly supported by

the evidence, and thus we would not conclude that the court abused its discretion. See

United States v. Swan

, 486 F.3d 260, 266 (7th Cir. 2007).

Counsel and Martinez also consider whether to argue that the district court erred in

admitting Martinez’s confession. Martinez testified that he did not understand the content

of his written statement and signed it only because he had to as a condition of receiving

medical treatment. Since Martinez would be raising the suppression argument for the first

time on appeal, and since neither he nor counsel has offered good cause for its tardiness, we

would not review the claim. F ED

. R. C RIM

. P. 12(b)(3)(C), (e); United States v. Johnson, 415 F.3d

728, 731 (7th Cir. 2005). And even if Martinez could show good cause that would allow us to

review the claim, he would then have to establish that the confession was involuntary and

that admitting it was plain error. Id. at 731

‐ 32. But Martinez did not offer credible evidence

that his confession was involuntary, and anyway the district court explicitly stated that the

confession was insignificant because it did not conflict with Martinez’s testimony at trial.

We agree with counsel, then, that an argument about the confession would be frivolous.

The remaining potential issues arise from Martinez’s sentencing, and here counsel

first evaluates whether there is a nonfrivolous argument that the district court erred in

finding that Martinez was ineligible for the “safety valve,” which allows first

‐ time offenders

to be sentenced below a statutory minimum if they meet certain requirements. See 18 U.S.C.

§ 3553(f); U.S.S.G. §§ 2D1.1(b)(11), 5C1.2. The district court found that Martinez was

ineligible because he did not fully and truthfully cooperate with the government. See 18

U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). We would reverse that finding only if it is clearly

erroneous, United States v. Olivas

‐ Ramirez

, 487 F.3d 512, 516 (7th Cir. 2007), and it is not.

Martinez never came clean about his own role in the crimes, not even after the district court

found that his public

‐ authority defense was a sham. As far as this record shows, Martinez

never gave the government useful information about “Angel” (if he exists), and he never

offered any information about his relationship with Ocampo. Accordingly, we agree withNo. 07

‐ 1979 Page 6

counsel that it would be frivolous to challenge the district court’s finding that Martinez was

not eligible for safety

‐ valve treatment.

Counsel next considers whether to challenge the district court’s calculation of the total

offense level, which included no reductions for minor participation, see U.S.S.G. § 3B1.2, or

acceptance of responsibility, see id. § 3E1.1. Although advisory, the guidelines still must be

properly calculated. United States v. Robinson

, 435 F.3d 699, 701 (7th Cir. 2006). Because

Martinez did not object to the guidelines calculations, he at best has forfeited any challenge,

see United States v. Jaimes

‐ Jaimes

, 406 F.3d 845, 848

‐ 49 (7th Cir. 2005), and limited our review

to a search for plain error, see United States v. Wainwright

, 509 F.3d 812, 815 (7th Cir. 2007).

We agree with counsel that the proposed arguments would be frivolous.

First, we could not conclude that the district court committed plain error by not

giving Martinez a mitigating

‐ role reduction. The district court understandably found that

Martinez played a significant—even central—role in the charged offenses: he arranged the

deals, produced large quantities of methamphetamine, and expected to profit from the

transactions. See United States v. Sandoval

‐ Vasquez

, 435 F.3d 739, 745 (7th Cir. 2006); United

States v. McKee

, 389 F.3d 697, 700 (7th Cir. 2004).

We likewise could not conclude that the district court committed plain error by

denying a reduction for acceptance of responsibility. Martinez put the government to its

burden of proof at trial, thereby rendering himself generally ineligible for the reduction. See

U.S.S.G. § 3E1.1 cmt. n.2; United States v. Hicks, 368 F.3d 801, 808 (7th Cir. 2004). And his

own testimony denying his guilt demonstrates that he did not accept responsibility.

Counsel also considers whether Martinez could challenge the reasonableness of his

prison sentence but rightly concludes that such a challenge would be frivolous. Martinez’s

sentence is at the bottom of a properly calculated guidelines range and thus would be

presumed reasonable on appeal. See United States v. Rita

, 127 S. Ct. 2456, 2462

‐ 63 (2007);

United States v. Gama

‐ Gonzalez

, 469 F.3d 1109, 1110 (7th Cir. 2006). Counsel is unable to

articulate any reason why the presumption would be overcome. The district court gave

detailed and meaningful consideration to relevant factors in 18 U.S.C. § 3553(a), see United

States v. Laufle

, 433 F.3d 981, 987 (7th Cir. 2006), for example, discussing why he believed the

prison’s initial inattention to Martinez’s medical problems weighed in favor of a sentence at

the bottom of the guidelines range. Ultimately, the undisputed drug quantity drove the

sentence.

Finally, Martinez informs us that he wishes to argue that he received ineffective

assistance of counsel. Any such claim, however, is better suited to collateral attack, at whichNo. 07

‐ 1979 Page 7

time a full record may be developed. See Massaro v. United States

, 538 U.S. 500, 504

‐ 05 (2003);

United States v. Harris

, 394 F.3d 543, 557

‐ 58 (7th Cir. 2005).

Accordingly, counsel ʹ s motion to withdraw is GRANTED, and Martinez’s motion for

the appointment of substitute counsel is DENIED. The appeal is DISMISSED.